NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
(RPAPL)
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TABLE OF CONTENTS
Article 1 Short Title; Definitions; Jurisdiction of Certain
Actions; Construction of Act
Article 2 General Provisions Governing Real Property Actions
Article 3 Provisions Relating to Evidence
Article 4 Valuing Interests in Real Property
Article 5 Adverse Possession
Article 6 Action to Recover Real Property
Article 7 Summary Proceeding to Recover Possession of Real
Property
Article 7-A Special Proceedings by Tenants of Dwellings in the
City of New York and the Counties of Nassau,
Suffolk, Rockland and Westchester for Judgment
Directing Deposit of Rents and the Use Thereof for
the Purpose of Remedying Conditions Dangerous to
Life, Health or Safety
Article 8 Waste and Other Actions and Rights of Action for
Injury to Real Property
Article 9 Action for Partition
Article 10 Action for Dower
Article 11 Proceeding to Discover the Death of a Tenant for
Life
Article 12 Other Actions and Proceedings Between Co-Owners or
Owners of Successive Interests
Article 13 Action to Foreclose a Mortgage
Article 14 Foreclosure of Mortgage by Advertisement
Article 15 Action to Compel the Determination of a Claim to
Real Property
Article 16 Judicial Authorization of Sale, Lease, Mortgage,
Acquisition, Exchange or Voluntary Partition
Article 17 Special Proceeding for Disposition of Real Property
of Infant, Incompetent or Conservatee
Article 18 Special Proceeding for Release of Claim Against
State of Infant or Incompetent for Appropriation of
Real Property
Article 19 Discharge or Extinguishment of Encumbrances, Claims
and Interests
Article 19A Special Proceeding to Convey Title to Abandoned
Dwelling to City, Town or Village
Article 20 Enforcement of Covenants and Easements; Recovery of
Damages for Breach of Covenant or Injury to Easement
Article 21 Effective Date; Laws Repealed
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ARTICLE 1
SHORT TITLE; DEFINITIONS; JURISDICTION OF CERTAIN ACTIONS;
CONSTRUCTION OF ACT
Section 101. Short title.
111. Definitions.
121. Jurisdiction of certain actions relating
to real property situate without the state.
131. Construction of act of reconsolidation.
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Sec. 101. SHORT TITLE.
This chapter shall be known as the real property actions and
proceedings law and may be cited as "RPAPL".
Sec. 111. DEFINITIONS.
1. As used in section 1641 of this chapter and in sections 1901
and 1911 of this chapter, the terms "real property" and
"lands" are co-extensive in meaning with lands, tenements
and hereditaments.
2. As used in section 1921, the term "real property" includes
lands, tenements and hereditaments and chattels real, except
a lease for a term not exceeding three years.
3. As used in this chapter the term "incompetent" or
"incompetent person" means a person incompetent to manage
his affairs of whose property a committee has been appointed
pursuant to section 78.03 or a person of whose property a
committee has been appointed pursuant to section 78.07 of
the mental hygiene law.
4. As used in this chapter the term "infant" or "minor" means a
person who has not attained the age of eighteen years.
5. As used in this chapter, the term "conservatee" means a
person under substantial impairment within the meaning of
the conservatorship provisions of article seventy-seven of
the mental hygiene law for whom a conservator has been
appointed.
Sec. 121. JURISDICTION OF CERTAIN ACTIONS RELATING TO REAL
PROPERTY SITUATE WITHOUT THE STATE.
An action may be maintained in the courts of this state to
recover damages for injuries to real estate without the state, or
for breach of contracts or of covenants relating thereto,
whenever such an action could be maintained in relation to
personal property without the state. The action must be tried in
the county in which the parties or some one thereof resides, or
if no party resides within the state, in any county.
Sec. 131. CONSTRUCTION OF ACT OF RECONSOLIDATION.
1. This chapter shall be construed as a continuation and
reenactment of the provisions of the real property law
repealed by article 21 hereof as such provisions existed on
December 31, 1961.
2. The repeal by this chapter of provisions of the real
property law specified in article 21 hereof and the
enactment of this chapter shall not affect any action or
proceeding pending under any such provision at the time this
chapter shall take effect.
3. Any act of the legislature of the year 1962 or 1963 which in
form amends or repeals or purports to amend or repeal any
provision or provisions of the real property law repealed by
article 21 of this chapter shall be legally effective
notwithstanding the repeal of such provision or provisions
and shall be construed as an amendment or repeal, as the
case may be, of the corresponding provision or provisions of
this chapter, and such corresponding provisions shall be
construed to be amended, modified, changed or repealed as
though they had been expressly and in terms so amended or
repealed.
4. Reference by any law, general or special, in force on
December 31, 1961, or in any act of the legislature of the
year 1962 or 1963, to a provision of the real property law
repealed by article 21 of this chapter as in force
immediately before the time this chapter shall take effect
shall be construed to refer to the corresponding provision
of this chapter.
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ARTICLE 2
GENERAL PROVISIONS GOVERNING REAL PROPERTY ACTIONS
Section 201. State or industrial commissioner as defendant
in certain real property actions.
202. Pleading interest of the state.
202a. Pleading interest of a city.
203. Judgment in action adversely affecting the
title, interest or claim of the state
based upon tax deed.
211. Prevention of waste or damage during
pendency.
221. Compelling delivery of possession of real
property.
231. Sale; notice of; when and how conducted.
232. Purchases by certain officers prohibited;
penalty.
241. Persons bound by judgment in certain actions.
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Sec. 201. STATE TAX COMMISSION, STATE OR INDUSTRIAL COMMISSIONER
AS DEFENDANT IN CERTAIN REAL PROPERTY ACTIONS.
In any action affecting real property upon which the state tax
commission has a lien under the tax law or under a law enacted
pursuant to the authority of the tax law or article two-E of the
general city law, whether or not such lien exists by reason of
the filing or docketing of a warrant under such laws, the state
tax commission may be made a party defendant in the same manner
as a private person. In any action affecting real property upon
which the state has a lien under sections two hundred forty-six-a
and two hundred forty-six-b of the lien law, the state may be
made a party defendant in the same manner as a private person. In
any action affecting real property upon which a lien exists by
reason of the docketing of a warrant pursuant to the unemployment
insurance law, the industrial commissioner may be made a party
defendant in the same manner as a private person.
Sec. 202. PLEADING INTEREST OF THE STATE.
Where the state or any department, bureau, board, commission,
council, officer, agency or instrumentality of the state is
defendant in an action affecting real property, the complaint
shall set forth:
1. Detailed facts showing the particular nature of the interest
in or lien on the real property and the reason for making
the state a party defendant.
2. If the lien exists by virtue of a judgment, other than a
warrant the name of the court, date recorded, clerk's office
in which filed, and names of the parties against whom and in
whose favor recorded. In the case of a warrant, the date
filed or docketed, clerk's office in which filed or
docketed, and names of the parties against whom and in whose
favor issued.
3. If the lien exists by virtue of a provision of law other
than a judgment, the provision of law under which said lien
is created.
4. If the lien is one under articles ten, ten-a, ten-b, ten-c
or twenty-six of the tax law, whether or not such lien
exists by reason of the filing or docketing of a warrant
under such law, the name of each decedent against whose
estate there is an unpaid transfer or estate tax, the date
of death, place of residence at the time of death, heirs at
law and next of kin, whether the decedent died testate or
intestate, whether his estate has been administered, and if
so where.
5. If the lien is one under articles nine, nine-a, nine-b, nine-
c or twenty-seven of the tax law, whether or not such lien
exists by reason of the filing or docketing of a warrant
under such law, the name of the corporation, association,
joint-stock company, unincorporated company, person, or
partnership against whose property there is an unpaid
corporation, license, or franchise tax or penalty. 6. If the
lien is one under article twenty-six-a of the tax law,
whether or not such lien exists by reason of the filing or
docketing of a warrant under such law, the names of the
donees or transferees against whose property there is an
unpaid gift tax.
Sec. 202a PLEADING INTEREST OF A CITY.
Where a city or any department, bureau, board, commission,
officer, agency or instrumentality thereof is a defendant in an
action affecting real property, the complaint shall set forth:
1. Detailed facts showing the particular nature of the interest
in or lien on the real property and the reason for making
such city a party-defendant.
2. If the lien exists by virtue of a judgment, the name of the
court, date recorded, clerk's office in which filed, the
names of the parties against whom and in whose favor such
judgment was recovered and a brief description of the
grounds for or the nature of such judgment.
3. If the lien exists by virtue of a provision of law other
than a judgment, the provision of law under which said lien
is created.
Sec. 203. JUDGMENT IN ACTION ADVERSELY AFFECTING THE TITLE,
INTEREST OR CLAIM OF THE STATE BASED UPON TAX DEED.
In any action affecting the title, or the possession, enjoyment
or use of, real property in which one of the parties is the
state, any judgment that may adversely affect the title, interest
or claim of the state based upon a tax deed shall provide in
effect as follows:
1. That the state shall have a lien upon such real property or
part thereof described in such tax deed, prior and superior
to all other liens, (a) for the amount of the unpaid taxes
not adjudged illegal in such action for which such real
property was sold or liable to be sold in the first instance
and for which such tax deed was issued, together with fees,
charges and interest; (b) for the amount of the unpaid taxes
not adjudged illegal in such action for which such real
property was subsequently sold or liable to be sold,
together with fees, charges and interest; (c) for the amount
of all taxes, fees and charges admitted or paid by the state
upon such real property to the date of the entry of such
judgment, together with interest thereon from the date of
such admission or payment. In the determination of the
amount of such lien, establishment of payments of taxes on
said real property by the adjudged or admitted owner of the
property during any of the same years in which payments were
also made by the state shall reduce the lien of the state by
the larger of the two tax payments for each of the years
affected by duplicate payments, and in the event that wholly
identical areas are not affected by the duplicate payments
the court shall have power to apportion and adjust the
amount of the lien as equity may require.
2. That the state may foreclose such lien as a mortgage on real
property is foreclosed, provided such lien remains unpaid
after the expiration of one year from the entry of such
judgment.
The remedy provided by this section for recovery of tax payments
shall be in addition to any other remedy now or hereafter
available in law or in equity.
Sec. 211. PREVENTION OF WASTE OR DAMAGE DURING PENDENCY.
If, during the pendency of an action to recover a judgment
affecting the title to, or the possession, use or enjoyment of,
real property, a party commits waste upon, or does any other
damage to, the property in controversy, the court may grant,
without notice or security, an order restraining him from the
commission of any further waste upon or damage to the property.
Disobedience to such an order may be punished as a contempt of
the court. This section does not affect the right to a permanent
or temporary injunction in such an action.
Sec. 221. COMPELLING DELIVERY OF POSSESSION OF REAL PROPERTY.
Where a judgment affecting the title to, or the possession,
enjoyment or use of, real property allots to any person a
distinct parcel of real property, or contains a direction for the
sale of real property, or confirms such an allotment or sale, it
also may direct the delivery of the possession of the property to
the person entitled thereto. If a party, or his representative or
successor, who is bound by the judgment, withholds possession
from the person thus declared to be entitled thereto, the court,
by order, in its discretion, besides punishing the disobedience
as a contempt, may require the sheriff to put that person into
possession. Such an order shall be executed as if it were an
execution for the delivery of the possession of the property.
Sec. 231. SALE; NOTICE OF; WHEN AND HOW CONDUCTED.
1. A sale of real property made in pursuance of a judgment
affecting the title to, or the possession, enjoyment or use
of, real property, shall be at public auction to the highest
bidder.
2. (a) Notice of such sale shall be given by the officer
making it by publishing a notice of the time and place
of the sale, containing a description of the property
to be sold, in a newspaper published in the county in
which the property is located, or, if there is none, in
a newspaper published in an adjoining county, unless
the property is situated wholly or partly in a city, or
in an incorporated village in which a daily, semi-
weekly or tri-weekly newspaper is published, and, in
that case, by publishing notice of the sale in such a
daily, semi-weekly or tri-weekly paper, except that
where such real property is located in a county within
the city of New York such publication shall be in a
daily newspaper published within such county, or in a
weekly paper published in a city or in such
incorporated village. If the property be situated in a
city, or a village in which no newspaper is published
daily, semi-weekly or tri-weekly, and there be an
adjoining city or village in the same or another
county, in which a newspaper is published, daily, semi-
weekly or tri-weekly, such notice may be published in
such daily, semi-weekly or tri-weekly newspaper of the
latter city or village or in a weekly newspaper of such
city. In each case, publication may be either once in
each week for four successive weeks or at least twice
in each week for three successive weeks preceding the
original date fixed for the sale. If the publication is
for three weeks, such sale shall take place on any day
on or after the twenty-first day and on or before the
twenty-eighth day after the day of the first
publication; and if the publication is for four weeks
such sale shall take place on any day on or after the
twenty-eighth day and on or before the thirty-fifth day
after the day of the first publication. Any period of
seven successive days shall constitute a week under
this section.
(b) Where the property is situated wholly outside a
city or an incorporated village referred to in
subparagraph (a) of this subdivision, notice of such
sale shall also be given by posting a copy of the
notice of sale at least twenty-eight days preceding the
original date fixed for the sale in three public places
in the town in which the property is located, and, if
the sale is to be held in another town or in a city, in
three public places therein.
3. If the officer appointed to make such sale does not appear
at the time and place where such sale has been advertised to
take place, the attorney for the plaintiff may postpone or
adjourn such sale not to exceed four weeks, during which
time such attorney may make application to the court to have
another person appointed to make such sale. Notice of
postponement of the sale shall be posted at least three days
prior to the postponed date in the same places as the
original notice of sale when posting of the notice of sale
is required, and shall be published once at least three days
prior to the postponed date in the newspaper in which the
notice of sale was originally published.
4. The terms of the sale shall be made known at the sale, and
if the property or any part thereof is to be sold subject to
the right of dower, charge or lien, that fact shall be
declared at the time of the sale.
5. If the property consists of two or more distinct buildings,
farms or lots, they shall be sold separately, unless
otherwise ordered by the court; but where two or more
buildings are situated in the same city lot, they shall be
sold together.
6. At any time within one year after the sale, but not
thereafter, the court, upon such terms as may be just, may
set the sale aside for failure to comply with the provisions
of this section as to the notice, time or manner of such
sale if a substantial right of a party was prejudiced by the
defect.
Sec. 232. PURCHASES BY CERTAIN OFFICERS PROHIBITED; PENALTY.
No officer making a sale as prescribed in section 231, or
guardian of an infant party, or any person for his benefit,
directly or indirectly, shall purchase or be interested in the
purchase of any of the property sold; except that a guardian,
where he is lawfully authorized to do so, may purchase for the
benefit or in behalf of his ward. The violation of this section
is a misdemeanor; and a purchase made contrary to this section is
void.
Sec. 241. PERSONS BOUND BY JUDGMENT IN CERTAIN ACTIONS.
In an action brought to recover a judgment affecting the title
to, or the possession, use or enjoyment of, real property, all
the proceedings and the judgment shall bind, in addition to the
persons who are bound by the filing of a notice of pendency of
the action pursuant to law, all persons born between the filing
of the notice of pendency and the entry of judgment who would
have been bound by such proceedings if born after such judgment.
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ARTICLE 3
PROVISIONS RELATING TO EVIDENCE
Section 301. Conveyance and record as evidence.
311. Presumption of possession from legal title.
321. Proof of ownership of unoccupied lands and
timber thereon.
331. Proof of lost execution or writ after
sheriff's sale of real property.
341. Recitals as to heirships in conveyances.
342. Recitals in judgments affecting title to real
property as evidence.
351. Evidence as to common lands in the city of
New York.
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Sec. 301. CONVEYANCE AND RECORD AS EVIDENCE.
1. The certificate of the acknowledgment or of the proof of a
conveyance, or the record, or the transcript of the record,
of such a conveyance, is not conclusive, and it may be
rebutted, and the effect thereof may be contested, by a
party affected thereby.
2. If it appears that the acknowledgment or proof was taken
upon the oath of an interested or incompetent witness, the
conveyance, or the record or transcript of the record
thereof, shall not be received in evidence until its
execution is established by other competent proof, except in
a case where the title to the land conveyed or affected by
such conveyance or instrument has passed to a subsequent
purchaser for a valuable consideration.
Sec. 311. PRESUMPTION OF POSSESSION FROM LEGAL TITLE.
In an action to recover real property or the possession thereof,
the person who establishes a legal title to the premises is
presumed to have been possessed thereof within the time required
by law; and the occupation of the premises by another person is
deemed to have been under and in subordination to the legal title
unless the premises have been held and possessed adversely to the
legal title for ten years before the commencement of the action.
Sec. 321. PROOF OF OWNERSHIP OF UNOCCUPIED LANDS AND TIMBER
THEREON.
In all actions to recover the possession of, or otherwise to
determine the title to, or for trespass upon or injury to,
unoccupied lands, timber, trees, or underwood thereon, any party
seeking such recovery or determination may show an unbroken chain
of title for twenty years, or conveyance of the land to himself
more than twenty years next preceding the commencement of the
action or the assertion of the defense or counterclaim except in
actions for trespass, and in actions for trespass for twenty
years next preceding the commission of the trespass or injury,
and such proof shall be presumptive evidence of ownership at the
times respectively of the commencement of such action or
assertion of the defense or counterclaim or commission of such
trespass or injury. Such presumption may be rebutted by any other
or opposing party by showing ownership of said lands, at the
times respectively of the commencement of the action or the
commission of the trespass or injury, in some person other than
the party claiming ownership by virtue of such presumption. In
any such action wherein the state, or any county or any state
officer, board or commission shall be a party, evidence as
aforesaid shall not be deemed to create any presumption of
ownership as against said designated parties.
Sec. 331. PROOF OF LOST EXECUTION OR WRIT AFTER SHERIFF'S SALE OF
REAL PROPERTY.
Whenever, upon the trial of an action, it shall appear that at
least ten years theretofore real property has been sold by a
sheriff for enforcement of the valid lien thereon of a duly
docketed judgment, and that a certificate of the sale has been
duly made by the sheriff and filed, and that a conveyance in
completion of the purchase has been executed and recorded, but
that the execution or writ by virtue of which the sale has so
been made cannot be found in the office of the clerk with whom
the same should have been filed, then and in such case the
recital of or reference to such execution or writ contained in
the said certificate, or in the said conveyance, or in the record
thereof, shall be prima facie evidence of the said execution or
writ and of the issuance of the same as against any party whose
claim of title is not shown to have been accompanied or supported
by peaceable possession of the premises in controversy for at
least three years immediately preceding the commencement of the
action.
Sec. 341. RECITALS AS TO HEIRSHIPS IN CONVEYANCES.
Hereafter, in any special proceeding or action in any of the
courts of this state, any deed, mortgage, lease, release, power
of attorney or other instrument more than ten years old, executed
for the purpose of transferring the title to or interest in
lands, tenements or hereditaments situated within this state,
which contains recitals that the grantors, grantees, or either,
or both, are the heirs at law of a prior owner of the title or
interest described in said instrument, or a survivor of a tenancy
by the entirety or joint tenancy, shall be presumptive evidence
of said heirship, or of such survivorship, as therein recited, if
such instrument be duly acknowledged or witnessed and proved in
any manner required or permitted at the date of the execution
thereof, and be duly recorded in any county where any part of the
lands described therein shall be located, or duly recorded in the
office of the secretary of state of the state of New York.
Sec. 342. RECITALS IN JUDGMENTS AFFECTING TITLE TO REAL PROPERTY
AS EVIDENCE.
In any action or special proceeding in any of the courts of this
state, a judgment, decree or order of any court of record, or
made by a judge of any court of record in this state, in any
action affecting the title of real property, which contains
recitals that any acts were done or proceedings had which were
necessary to give to such court or judge jurisdiction or power to
grant such judgment, decree or order, shall be presumptive
evidence that such acts were duly performed or proceedings duly
had, if such judgment, decree or order shall have been duly
entered or filed in the office of the clerk of the county in
which the action or special proceeding was pending wherein such
judgment, decree or order was granted.
Sec. 351. EVIDENCE AS TO COMMON LANDS IN THE CITY OF NEW YORK.
In any action or special proceeding involving a question as to
the situs of any lot of the common lands, so-called, in the city
of New York, the court may, upon the offer of any party, receive
in evidence any evidence which was received in the action
heretofore prosecuted in the superior court of the city of New
York, by Russell D. Miner, and continued by the personal
representatives of the same Russell D. Miner, deceased, against
the city of New York, or in the action in such court between
certain heirs at law of the same Russell D. Miner, deceased, and
Jacob Scholle and others, and also the deposition of Isaac T.
Ludlam, deceased, verified before E. Henry Lacombe, as referee,
upon the fourteenth day of November, eighteen hundred seventy-
eight, in an action in such court by Hester Sherman and others,
against Thomas Kane and others; provided that the testimony of a
witness shall not be admissible, under the provisions of this
section until the court is satisfied that such witness has
heretofore died; and provided further, that no provision of this
section shall give to any documentary evidence introduced in
connection with any former testimony any greater or different
effect than may be due to it by reason of the testimony relative
thereto. Such evidence may be introduced in any mode established
by the practice of the courts for the introduction of testimony
given upon a former trial, by a witness who has since died, or by
reading from the printed cases on appeal, heretofore filed in the
office of the clerk of the superior court of the city of New
York.
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ARTICLE 4
VALUING INTERESTS IN REAL PROPERTY
Section 401. When interests are valued under this article.
402. Interest rate.
403. Mortality and other tables.
404. Evidence as to ancestry, health and habits of
individual.
405. Interest defeasible by remarriage.
406. Computation by superintendent of insurance.
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Sec. 401. WHEN INTERESTS ARE VALUED UNDER THIS ARTICLE.
The following interests shall be valued in the manner provided by
this article:
(a) an interest in real property dependent as to value upon the
duration of one or more lives in being, whether such
interest is present or future; and
(b) a future interest preceded only by one or more interests
described in clause (a); whenever
1. the owner of such interest is entitled to receive a sum
in gross in satisfaction of, or in compensation for
impairment of, his interest in real property which has
been transformed into a fund by judicial action or
proceeding; or
2. ownership of real property is divided into successive
legal interests, including one or more interests
dependent as to value upon the duration of one or more
lives of persons in being, and the fraction of complete
ownership belonging to each partial owner must be
ascertained so as to permit an adjudication of the
fraction of some new capital expenditure required
either for the payment of a mortgage, special
assessment or other lien upon such property, or for the
satisfaction of an obligation imposed by law as an
incident of ownership; or
3. such valuation is necessary for the final determination
of some action or proceeding, other than an action or
proceeding for which the insurance law, the workmen's
compensation law or the tax law prescribes methods of
valuation.
Sec. 402. INTEREST RATE.
In all valuations made under this article, the interest rate of
four per centum, compounded annually, shall be employed for all
purposes.
Sec. 403. MORTALITY AND OTHER TABLES.
In all valuations made under this article where such valuation
depends upon the continuance of, or upon the termination of a
life or lives in being, the table of mortality prescribed by
section four thousand two hundred seventeen of the insurance law
for new, ordinary life policies shall be employed in the manner
required by accepted actuarial practice. If, in any case, such
table fails to provide required data, other tables accepted by
actuarial practice may be employed.
Sec. 404. EVIDENCE AS TO ANCESTRY, HEALTH AND HABITS OF
INDIVIDUAL.
In all valuations made under this article, no significance shall
be given to the ancestry, health or habits of the person whose
life is involved. Each valuation shall be based exclusively on
the actuarial data.
Sec. 405. INTEREST DEFEASIBLE BY REMARRIAGE.
Whenever an interest is defeasible on the remarriage of a person
whose life is involved, this fact of defeasibility may be taken
into account in the valuation of any such interest or of any
interest subject thereto, if justice requires. For this purpose,
the Casualty Actuarial Society's Table on Remarriage or other
tables accepted by actuarial practice shall be employed.
Sec. 406. COMPUTATION BY SUPERINTENDENT OF INSURANCE.
Any court, judge, referee or other judicial or administrative
officer by whom any valuation under this article must be made is
authorized to transmit to the superintendent of insurance such
statement of facts as is necessary to permit the required
computation, and such superintendent shall thereupon make the
computation and, without charge, certify the same to the court or
other officer submitting such statement. Any such certificate
shall be conclusive evidence that the method of computation
adopted therein is correct.
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ARTICLE 5
ADVERSE POSSESSION
Section 501. Action after entry.
511. Adverse possession under written instrument
or judgment.
512. Essentials of adverse possession under
written instrument or judgment.
521. Adverse possession under claim of title not
written.
522. Essentials of adverse possession under claim
of title not written.
531. Adverse possession, how affected by relation
of landlord and tenant.
541. Adverse possession, how affected by relation
of tenants in common.
551. Right of person to possession not affected by
descent cast.
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Sec. 501. ACTION AFTER ENTRY.
An entry upon real property is not sufficient or valid as a claim
unless an action is commenced thereupon within one year after the
making thereof and within ten years after the time when the right
to make it descended or accrued.
Sec. 511. ADVERSE POSSESSION UNDER WRITTEN INSTRUMENT OR
JUDGMENT.
Where the occupant or those under whom he claims entered into the
possession of the premises under claim of title, exclusive of any
other right, founding the claim upon a written instrument, as
being a conveyance of the premises in question, or upon the
decree or judgment of a competent court, and there has been a
continued occupation and possession of the premises included in
the instrument, decree or judgment, or of some part thereof, for
ten years, under the same claim, the premises so included are
deemed to have been held adversely; except that when they consist
of a tract divided into lots, the possession of one lot is not
deemed a possession of any other lot.
Sec. 512. ESSENTIALS OF ADVERSE POSSESSION UNDER WRITTEN
INSTRUMENT OR JUDGMENT.
For the purpose of constituting an adverse possession by a person
claiming a title founded upon a written instrument or a judgment
or decree, land is deemed to have been possessed and occupied in
either of the following cases:
1. Where it has been usually cultivated or improved.
2. Where it has been protected by a substantial inclosure.
3. Where, although not inclosed, it has been used for the
supply of fuel or of fencing timber, either for the purposes
of husbandry or for the ordinary use of the occupant.
Where a known farm or a single lot has been partly improved, the
portion of the farm or lot that has been left not cleared or not
inclosed, according to the usual course and custom of the
adjoining country, is deemed to have been occupied for the same
length of time as the part improved and cultivated.
Sec. 521. ADVERSE POSSESSION UNDER CLAIM OF TITLE NOT WRITTEN.
Where there has been an actual continued occupation of premises
under a claim of title, exclusive of any other right, but not
founded upon a written instrument or a judgment or decree, the
premises so actually occupied, and no others, are deemed to have
been held adversely.
Sec. 522. ESSENTIALS OF ADVERSE POSSESSION UNDER CLAIM OF TITLE
NOT WRITTEN.
For the purpose of constituting an adverse possession by a person
claiming title not founded upon a written instrument or a
judgment or decree, land is deemed to have been possessed and
occupied in either of the following cases, and no others:
1. Where it has been usually cultivated or improved.
2. Where it has been protected by a substantial inclosure.
Sec. 531. ADVERSE POSSESSION, HOW AFFECTED BY RELATION OF
LANDLORD AND TENANT.
Where the relation of landlord and tenant has existed between any
persons the possession of the tenant is deemed the possession of
the landlord until the expiration of ten years after the
termination of the tenancy; or, where there has been no written
lease, until the expiration of ten years after the last payment
of rent; notwithstanding that the tenant has acquired another
title or has claimed to hold adversely to his landlord. But this
presumption shall cease after the periods prescribed in this
section and such tenant may then commence to hold adversely to
his landlord.
Sec. 541. ADVERSE POSSESSION, HOW AFFECTED BY RELATION OF TENANTS
IN COMMON.
Where the relation of tenants in common has existed between any
persons, the occupancy of one tenant, personally or by his
servant or by his tenant, is deemed to have been the possession
of the other, notwithstanding that the tenant so occupying the
premises has acquired another title or has claimed to hold
adversely to the other. But this presumption shall cease after
the expiration of ten years of continuous exclusive occupancy by
such tenant, personally or by his servant or by his tenant, or
immediately upon an ouster by one tenant of the other and such
occupying tenant may then commence to hold adversely to his
cotenant.
Sec. 551. RIGHT OF PERSON TO POSSESSION NOT AFFECTED BY DESCENT
CAST.
The right of a person to the possession of real property is not
impaired or affected by a descent being cast in consequence of
the death of a person in possession of the property.
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ARTICLE 6
ACTION TO RECOVER REAL PROPERTY
Section 601. Damages for withholding real property
obtainable in action to recover possession;
set-off by defendant.
611. Where action cannot be maintained:
dower; property not exceeding six inches in
width; by mortgagee.
612. Where action cannot be maintained;
action based on reverter or breach of
condition subsequent.
621. Separate action by joint tenant or
tenant in common.
623. Action by grantee of lands held
adversely.
625. Action by reversioner or remainderman
after tenant's default.
631. Defendants.
633. Action against co-tenant; ouster to be
proved.
635. Action against occupants of apartments.
637. Action against one defendant subject to
rights of others.
641. Complaint.
651. Expiration of plaintiff's title before
trial.
653. Judgment to state plaintiff's estate.
661. Liability of purchaser pending an
action.
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Sec. 601. DAMAGES FOR WITHHOLDING REAL PROPERTY OBTAINABLE IN
ACTION TO RECOVER POSSESSION; SET-OFF BY DEFENDANT.
In an action to recover the possession of real property, the
plaintiff may recover damages for withholding the property,
including the rents and profits or the value of the use and
occupation of the property for a term not exceeding six years;
but the damages shall not include the value of the use of any
improvements made by the defendant or those under whom he claims.
Where permanent improvements have been made in good faith by the
defendant or those under whom he claims, while holding, under
color of title, adversely to the plaintiff, the value thereof
must be allowed to the defendant in reduction of the damages of
the plaintiff, but not beyond the amount of those damages.
Sec. 611. WHERE ACTION CANNOT BE MAINTAINED: DOWER; PROPERTY
NOT EXCEEDING SIX INCHES IN WIDTH; BY MORTGAGEE.
The action cannot be maintained:
1. Where an action for dower may be maintained.
2. Where the real property consists of a strip of land not
exceeding six inches in width upon which there stands the
exterior wall of a building erected partly upon said strip
and partly upon the adjoining lot, and a building has been
erected upon land of the plaintiff abutting on the said
wall, unless said action be commenced within one year after
the completion of the erection of such wall. But an action
may be maintained if commenced within the further period of
one year, for the recovery of damages by reason of the
erection of such wall, and upon the satisfaction of the
judgment for such damages the title of the plaintiff to such
strip of land shall thereby be transferred to and vest in
the defendant. If an action for the recovery of real
property or damages is not brought within the period hereby
limited therefor, the person in possession of such lands
shall be deemed to have an easement in said strip of land so
long as the said wall partly erected thereon shall stand,
and no longer, and in case of the destruction of such wall
the owner of such strip shall have the same right to take or
recover the possession thereof as if such wall had never
existed.
3. By a mortgagee, or his assignee, or other representative.
Sec. 612. WHERE ACTION CANNOT BE MAINTAINED; ACTION BASED ON
REVERTER OR BREACH OF CONDITION SUBSEQUENT.
1. Except as otherwise provided in this section, an action to
recover the possession of real property cannot be maintained
where it is founded upon a claim of reverter of an estate in
fee conveyed upon special limitation or founded upon a claim
of breach of a condition subsequent, other than a condition
of a lease for a term of years, unless (a) within ten years
after the occurrence of the reverter or the first occurrence
of the breach, the plaintiff, or any predecessor in interest
then entitled to possession or to exercise the power of
termination, shall have served upon the person or persons
against whom the action might then have been commenced a
written demand that possession be delivered, stating the
ground thereof, and the action is commenced within one year
thereafter or (b), if no such demand is served, the action
is commenced within such ten years.
2. Where the reverter or breach occurred before September 1,
1963, an action may be maintained if demand is made as
provided in this section before the expiration of ten years
computed from the occurrence of the reverter or the first
occurrence of the breach, or on or before September 1, 1965,
whichever is later, and the action is commenced within one
year thereafter or if, without previous demand as provided
in this section, the action is commenced before the
expiration of ten years computed from the occurrence of the
reverter or the first occurrence of the breach, or on or
before September 1, 1965, whichever is later.
3. The demand shall be served either personally or by mailing
the same by certified mail addressed to the person or
persons against whom the action might then have been
commenced, at his or their last known address or addresses.
4. The demand may be made on behalf of an infant by his parent
or guardian or by the person with whom he resides, may be
made on behalf of an incompetent by the committee of his
person or property, and may be made on behalf of a
conservatee by the conservator of his property. If the
person entitled to maintain the action shall have died, the
demand may be made either by the persons succeeding to the
right of the decedent, or one of them, or on their behalf by
the personal representative of the decedent.
5. The demand shall become ineffective unless action to recover
possession in accordance therewith is commenced within one
year from the date of service thereof. If no action is
commenced, or no such demand is served within the time
specified in subdivisions 1 or 2, or if the demand served
becomes ineffective, it shall be conclusively presumed that
the possibility of reverter by reason of which the estate is
claimed to have reverted, or the power of termination for
breach of the condition which is claimed to have been
broken, was extinguished at or before the date when the
reverter would have occurred or a right of entry would have
accrued by reason of such possibility of reverter or breach
of such condition.
6. The operation of this section is not affected by any
disability, or by the fact that the person against whom the
action might have been brought within the period herein
provided was during that time a non-resident or absent from
the state, and is not affected by any lack of knowledge on
the part of any person that the reverter or breach has
occurred, unless it is established that the facts upon which
the reverter occurred, or the facts constituting the breach,
were concealed from the plaintiff or his predecessor in
interest by actual fraud. If such fraud be established, the
time provided in subdivision 1 or 2 shall commence to run
when the facts are discovered by a person entitled to serve
the demand as provided in this section.
7. This section does not limit any other statute or rule of law
or equity by which a possibility of reverter or right of
entry is or may be extinguished or rendered unenforceable,
or by which an action to recover possession of the property
may be extinguished or barred.
Sec. 621. SEPARATE ACTION BY JOINT TENANT OR TENANT IN COMMON.
Where two or more persons are entitled to the possession of real
property as joint tenants or tenants in common, one or more of
them may maintain the action to recover his or their undivided
shares in the property in any case where such an action might be
maintained by all.
Sec. 623. ACTION BY GRANTEE OF LANDS HELD ADVERSELY.
The action shall be maintained by a grantee, his executors,
administrators or assigns in his own name, although at the time
of the conveyance, such real property was in the actual
possession of a person claiming under a title adverse to that of
the grantor.
Sec. 625. ACTION BY REVERSIONER OR REMAINDERMAN AFTER TENANT'S
DEFAULT.
Where a tenant for life or for a term of years suffers judgment
to be taken against him, by consent or by default, in an action
to recover real property, the heir or person owning the reversion
or remainder, may maintain an action to recover the property,
after the determination of the particular estate.
Sec. 631. DEFENDANTS.
Where the complaint demands judgment for the immediate possession
of the property, if the property is actually occupied, the
occupant shall be made defendant in the action. If it is not so
occupied, the action shall be brought against some person
exercising acts of ownership thereupon, or claiming title thereto
or an interest therein, at the time of the commencement of the
action. Any person claiming title to, or the right to the
possession of, the real property sought to be recovered, as
landlord, remainderman, reversioner, or otherwise adversely to
the plaintiff, may be joined as defendant.
Sec. 633. ACTION AGAINST CO-TENANT; OUSTER TO BE PROVED.
Where the action is brought by a tenant in common or a joint
tenant against his co-tenant, the plaintiff, besides proving his
right, shall also prove that the defendant actually ousted him or
did some other act amounting to a total denial of his right.
Sec. 635. ACTION AGAINST OCCUPANTS OF APARTMENTS.
In a case where two or more defendants occupy different
apartments in a building the plaintiff is entitled to judgment
jointly against all the defendants who are liable to him.
Sec. 637. ACTION AGAINST ONE DEFENDANT SUBJECT TO RIGHTS OF
OTHERS.
Where one or more answering defendants hold under another
defendant, and the plaintiff elects to proceed against the
latter, subject to the rights and interests of the former, if the
plaintiff recovers final judgment against the defendant under
whom they hold, the judgment operates as a transfer to the
plaintiff of that defendant's right, title and interest.
Sec. 641. COMPLAINT.
The complaint shall state the plaintiff's interest in the
property and describe it with reasonable certainty in such manner
that, from the description, possession of the property claimed
may be delivered.
Sec. 651. EXPIRATION OF PLAINTIFF'S TITLE BEFORE TRIAL.
If the right or title of the plaintiff expires after the
commencement of the action but before the trial, and he would
have been entitled to recover but for the expiration, the
verdict, report or decision shall be rendered according to the
fact; and the plaintiff is entitled nevertheless to judgment for
his damages for the withholding of the property to the time when
his right or title so expired.
Sec. 653. JUDGMENT TO STATE PLAINTIFF'S ESTATE.
A verdict, report or decision in favor of the plaintiff and the
judgment rendered thereon, shall specify in writing the estate of
the plaintiff in the property recovered, whether it is in fee, or
for life, or for a term of years stating for whose life it is, or
specifying the duration of the term, if the estate be less than a
fee.
Sec. 661. LIABILITY OF PURCHASER PENDING AN ACTION.
If the defendant aliens the real property in question after the
filing of a notice of pendency of the action, and an execution
against him for the plaintiff's damages is returned wholly or
partly unsatisfied, an action may be maintained by the plaintiff
against any person who has been in possession of the property,
under the defendant's conveyance, to recover the unsatisfied
portion of the damages, for a time not exceeding that during
which he possessed the property.
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ARTICLE 7
SUMMARY PROCEEDING TO RECOVER POSSESSION OF REAL PROPERTY
Section 701. Jurisdiction; courts; venue.
711. Grounds where landlord-tenant
relationship exists.
713. Grounds where no landlord-tenant
relationship exists.
713a. Special proceeding for termination
of adult home and residence for adults
admission agreements.
715. Grounds and procedure where use or
occupancy is illegal.
721. Person who may maintain proceeding.
731. Commencement; notice of petition.
732. Special provisions applicable in non-
payment proceeding if the rules so provide.
733. Time of service; order to show cause.
734. Notice of petition; service on the
Westchester county department of social
services.
735. Manner of service; filing; when service
complete.
741. Contents of petition.
743. Answer.
745. Trial.
747. Judgment.
749. Warrant.
751. Stay upon paying rent or giving
undertaking; discretionary stay outside city
of New York.
753. Stay where tenant holds over in premises
occupied for dwelling purposes in city of New
York.
755. Stay of proceeding or action for rent
upon failure to make repairs.
756. Stay of summary proceedings or actions
for rent under certain conditions.
761. Redemption by lessee.
763. Redemption by creditor of lessee.
765. Effect of redemption upon lease.
767. Order of redemption; liability of
persons redeeming.
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Sec. 701. JURISDICTION; COURTS; VENUE.
1. A special proceeding to recover real property may be
maintained in a county court, the court of a police justice
of the village, a justice court, a court of civil
jurisdiction in a city, or a district court.
2. The place of trial of the special proceeding shall be within
the jurisdictional area of the court in which the real
property or a portion thereof is situated; except that where
the property is located in an incorporated village which
includes parts of two or more towns the proceeding may be
tried by a justice of the peace of any such town who keeps
an office in the village.
Sec. 711. GROUNDS WHERE LANDLORD-TENANT RELATIONSHIP EXISTS.
A tenant shall include an occupant of one or more rooms in a
rooming house or a resident, not including a transient occupant,
of one or more rooms in a hotel who has been in possession for
thirty consecutive days or longer; he shall not be removed from
possession except in a special proceeding. A special proceeding
may be maintained under this article upon the following grounds:
1. The tenant continues in possession of any portion of the
premises after the expiration of his term, without the
permission of the landlord or, in a case where a new lessee
is entitled to possession, without the permission of the new
lessee. Acceptance of rent after commencement of the special
proceeding upon this ground shall not terminate such
proceeding nor effect any award of possession to the
landlord or to the new lessee, as the case may be. A
proceeding seeking to recover possession of real property by
reason of the termination of the term fixed in the lease
pursuant to a provision contained therein giving the
landlord the right to terminate the time fixed for occupancy
under such agreement if he deem the tenant objectionable,
shall not be maintainable unless the landlord shall by
competent evidence establish to the satisfaction of the
court that the tenant is objectionable.
2. The tenant has defaulted in the payment of rent, pursuant to
the agreement under which the premises are held, and a
demand of the rent has been made, or at least three days'
notice in writing requiring, in the alternative, the payment
of the rent, or the possession of the premises, has been
served upon him as prescribed in section 735. The landlord
may waive his right to proceed upon this ground only by an
express consent in writing to permit the tenant to continue
in possession, which consent shall be revocable at will, in
which event the landlord shall be deemed to have waived his
right to summary dispossess for nonpayment of rent accruing
during the time said consent remains unrevoked. Any person
succeeding to the landlord's interest in the premises may
proceed under this subdivision for rent due his predecessor
in interest if he has a right thereto. Where a tenant dies
during the term of the lease and rent due has not been paid
and no representative or person has taken possession of the
premises and no administrator or executor has been
appointed, the proceeding may be commenced after three
months from the date of death of the tenant by joining the
surviving spouse or if there is none, then one of the
surviving issue or if there is none, then any one of the
distributees.
3. The tenant, in a city defaults in the payment, for sixty
days after the same shall be payable, of any taxes or
assessments levied on the premises which he has agreed in
writing to pay pursuant to the agreement under which the
premises are held, and a demand for payment has been made,
or at least three days' notice in writing, requiring in the
alternative the payment thereof and of any interest and
penalty thereon, or the possession of the premises, has been
served upon him, as prescribed in section 735. An acceptance
of any rent shall not be construed as a waiver of the
agreement to pay taxes or assessments.
4. The tenant, under a lease for a term of three years or less,
has during the term taken the benefit of an insolvency
statute or has been adjudicated a bankrupt.
5. The premises, or any part thereof, are used or occupied as a
bawdy-house, or house or place of assignation for lewd
persons, or for purposes of prostitution, or for any illegal
trade or manufacture, or other illegal business.
6. The tenant, in a city having a population of one million or
more, removes the batteries or otherwise disconnects or
makes inoperable an installed smoke or fire detector which
the tenant has not requested be moved from its location so
as not to interfere with the reasonable use of kitchen
facilities provided that the court, upon complaint thereof,
has previously issued an order of violation of the
provisions heretofore stated and, subsequent to the
thirtieth day after service of such order upon the tenant,
an official inspection report by the appropriate department
of housing preservation and development is presented, in
writing, indicating non-compliance herewith; provided
further, that the tenant shall have the additional ten day
period to cure such violation in accordance with the
provisions of subdivision four of section seven hundred
fifty-three of this chapter.
Sec. 713. GROUNDS WHERE NO LANDLORD-TENANT RELATIONSHIP EXISTS.
A special proceeding may be maintained under this article after a
ten-day notice to quit has been served upon the respondent in the
manner prescribed in section 735, upon the following grounds:
1. The property has been sold by virtue of an execution against
him or a person under whom he claims and a title under the
sale has been perfected.
2. He occupies or holds the property under an agreement with
the owner to occupy and cultivate it upon shares or for a
share of the crops and the time fixed in the agreement for
his occupancy has expired.
3. He or the person to whom he has succeeded has intruded into
or squatted upon the property without the permission of the
person entitled to possession and the occupancy has
continued without permission or permission has been revoked
and notice of the revocation given to the person to be
removed.
4. The property has been sold for unpaid taxes and a tax deed
has been executed and delivered to the purchaser and he or
any subsequent grantee, distributee or devisee claiming
title through such purchaser has complied with all
provisions of law precedent to the right to possession and
the time of redemption by the former owner or occupant has
expired.
5. The property has been sold in foreclosure and either the
deed delivered pursuant to such sale, or a copy of such
deed, certified as provided in the civil practice law and
rules, has been exhibited to him.
6. He is the tenant of a life tenant of the property, holding
over and continuing in possession of the property after the
termination of the estate of such life tenant without the
permission of the person entitled to possession of the
property upon termination of the life estate.
7. He is a licensee of the person entitled to possession of the
property at the time of the license, and (a) his license has
expired, or (b) his license has been revoked by the
licensor, or (c) the licensor is no longer entitled to
possession of the property; provided, however, that a
mortgagee or vendee in possession shall not be deemed to be
a licensee within the meaning of this subdivision.
8. The owner of real property, being in possession of all or a
part thereof, and having voluntarily conveyed title to the
same to a purchaser for value, remains in possession without
permission of the purchaser.
9. A vendee under a contract of sale, the performance of which
is to be completed within ninety days after its execution,
being in possession of all or a part thereof, and having
defaulted in the performance of the terms of the contract of
sale, remains in possession without permission of the
vendor.
10. The person in possession has entered the property or remains
in possession by force or unlawful means and he or his
predecessor in interest was not in quiet possession for
three years before the time of the forcible or unlawful
entry or detainer and the petitioner was peaceably in actual
possession at the time of the forcible or unlawful entry or
in constructive possession at the time of the forcible or
unlawful detainer; no notice to quit shall be required in
order to maintain a proceeding under this subdivision.
11. The person in possession entered into possession as an
incident to employment by petitioner, and the time agreed
upon for such possession has expired or, if no such time was
agreed upon, the employment has been terminated; no notice
to quit shall be required in order to maintain the
proceeding under this subdivision.
Sec. 713-a.SPECIAL PROCEEDING FOR TERMINATION OF ADULT HOME AND
RESIDENCE FOR ADULTS ADMISSION AGREEMENTS.
A special proceeding to terminate the admission agreement of a
resident of an adult home or residence for adults and discharge a
resident therefrom may be maintained in a court of competent
jurisdiction pursuant to the provisions of section four hundred
sixty-one-h of the social services law and nothing contained in
such section shall be construed to create a relationship of
landlord and tenant between the operator of an adult home or
residence for adults and a resident thereof.
Sec. 715. GROUNDS AND PROCEDURE WHERE USE OR OCCUPANCY IS
ILLEGAL.
1. An owner or tenant, including a tenant of one or more rooms
of an apartment house, tenement house or multiple dwelling,
of any premises within two hundred feet from other demised
real property used or occupied in whole or in part as a
bawdy-house, or house or place of assignation for lewd
persons, or for purposes of prostitution, or for any illegal
trade, business or manufacture, or any domestic corporation
organized for the suppression of vice, subject to or which
submits to visitation by the state department of social
services and possesses a certificate from such department of
such fact and of conformity with regulations of the
department, or any duly authorized enforcement agency of the
state or of a subdivision thereof, under a duty to enforce
the provisions of the penal law or of any state or local
law, ordinance, code, rule or regulation relating to
buildings, may serve personally upon the owner or landlord
of the premises so used or occupied, or upon his agent, a
written notice requiring the owner or landlord to make an
application for the removal of the person so using or
occupying the same. If the owner or landlord or his agent
does not make such application within five days thereafter;
or, having made it, does not in good faith diligently
prosecute it, the person, corporation or enforcement agency
giving the notice may bring a proceeding under this article
for such removal as though the petitioner were the owner or
landlord of the premises, and shall have precedence over any
similar proceeding thereafter brought by such owner or
landlord or to one theretofore brought by him and not
prosecuted diligently and in good faith. Proof of the ill
repute of the demised premises or of the inmates thereof or
of those resorting thereto shall constitute presumptive
evidence of the unlawful use of the demised premises
required to be stated in the petition for removal. Both the
person in possession of the property and the owner or
landlord shall be made respondents in the proceeding.
2. For purposes of this section, two or more convictions of any
person or persons had, within a period of one year, for any
of the offenses described in section 230.00, 230.05, 230.20,
230.25, 230.30 or 230.40 of the penal law arising out of
conduct engaged in at the same real property consisting of a
dwelling as that term is defined in subdivision four of
section four of the multiple dwelling law shall be
presumptive evidence of conduct constituting use of the
premises for purposes of prostitution.
3. For the purposes of this section, two or more convictions of
any person or persons had, within a period of one year, for
any of the offenses described in section 225.00, 225.05,
225.10, 225.15, 225.20, 225.30, 225.32, 225.35 or 225.40 of
the penal law, arising out of conduct engaged in at the same
premises consisting of a dwelling as that term is defined in
subdivision four of section four of the multiple dwelling
law shall be presumptive evidence of unlawful use of such
premises and of the owner's knowledge of the same.
4. A court granting a petition pursuant to this section may, in
addition to any other order provided by law, make an order
imposing and requiring the payment by the respondent of a
civil penalty not exceeding five thousand dollars to the
municipality in which the subject premises is located and,
the payment of reasonable attorneys fees and the costs of
the proceeding to the petitioner. In any such case multiple
respondents shall be jointly and severally liable for any
payment so ordered and the amounts of such payments shall
constitute a lien upon the subject realty.
5. For the purposes of a proceeding under this section, an
enforcement agency of the state or of a subdivision thereof,
which may commence a proceeding under this section, may
subpoena witnesses, compel their attendance, examine them
under oath before himself or a court and require that any
books, records, documents or papers relevant or material to
the inquiry be turned over to him for inspection,
examination or audit, pursuant to the civil practice law and
rules. If a person subpoenaed to attend upon such inquiry
fails to obey the command of a subpoena without reasonable
cause, or if a person in attendance upon such inquiry shall,
without reasonable cause, refuse to be sworn or to be
examined or to answer a question or to produce a book or
paper, when ordered to do so by the officer conducting such
inquiry, he shall be guilty of a class B misdemeanor.
Sec. 721. PERSON WHO MAY MAINTAIN PROCEEDING. THE PROCEEDING MAY
BE BROUGHT BY:
1. The landlord or lessor.
2. The reversioner or remainderman next entitled to possession
of the property upon the termination of the estate of a life
tenant, where a tenant of such life tenant holds over.
3. The purchaser upon the execution or foreclosure sale, or the
purchaser on a tax sale to whom a deed has been executed and
delivered or any subsequent grantee, distributee or devisee
claiming title through such purchaser.
4. The person forcibly put out or kept out.
5. The person with whom, as owner, the agreement was made, or
the owner of the property occupied under an agreement to
cultivate the property upon shares or for a share of the
crops.
6. The person lawfully entitled to the possession of property
intruded into or squatted upon.
7. The person entitled to possession of the property occupied
by a licensee who may be dispossessed.
8. The person, corporation or law enforcement agency authorized
by this article to proceed to remove persons using or
occupying premises for illegal purposes.
9. The receiver of a landlord, purchaser or other person so
entitled to apply, when authorized by the court.
10. The lessee of the premises, entitled to possession.
11. Not-for-profit corporations, and tenant associations
authorized in writing by the commissioner of the department
of the city of New York charged with enforcement of the
housing maintenance code of such city to manage residential
real property owned by such city.
Sec. 731. COMMENCEMENT; NOTICE OF PETITION.
1. The special proceeding prescribed by this article shall be
commenced by petition and a notice of petition. A notice of
petition may be issued only by an attorney, judge or the
clerk of the court; it may not be issued by a party
prosecuting the proceeding in person.
2. Except as provided in section 732, relating to a proceeding
for non-payment of rent, the notice of petition shall
specify the time and place of the hearing on the petition
and state that if respondent shall fail at such time to
interpose and establish any defense that he may have, he may
be precluded from asserting such defense or the claim on
which it is based in any other proceeding or action.
Sec. 732. SPECIAL PROVISIONS APPLICABLE IN NON-PAYMENT PROCEEDING
IF THE RULES SO PROVIDE.
If the appropriate appellate division shall so provide in the
rules of a particular court, this section shall be applicable in
such court in a proceeding brought on the ground that the
respondent has defaulted in the payment of rent; in such event,
all other provisions of this article shall remain applicable in
such proceeding, except to the extent inconsistent with the
provisions of this section.
1. The notice of petition shall be returnable before the clerk,
and shall be made returnable within five days after its
service.
2. If the respondent answers, the clerk shall fix a date for
trial or hearing not less than three nor more than eight
days after joinder of issue, and shall immediately notify by
mail the parties or their attorneys of such date. If the
determination be for the petitioner, the issuance of a
warrant shall not be stayed for more than five days from
such determination.
3. If the respondent fails to answer within five days from the
date of service, as shown by the affidavit or certificate of
service of the notice of petition and petition, the judge
shall render judgment in favor of the petitioner and may
stay the issuance of the warrant for a period of not to
exceed ten days from the date of service.
4. The notice of petition shall advise the respondent of the
requirements of subdivisions 1, 2 and 3, above.
Sec. 733. TIME OF SERVICE; ORDER TO SHOW CAUSE.
1. Except as provided in section 732, relating to a proceeding
for non-payment of rent, the notice of petition and petition
shall be served at least five and not more than twelve days
before the time at which the petition is noticed to be
heard.
2. The court may grant an order to show cause to be served in
lieu of a notice of petition. If the special proceeding is
based upon the ground specified in subdivision 1 of section
711, and the order to show cause is sought on the day of the
expiration of the lease or the next day thereafter, it may
be served at a time specified therein which shall be at
least two hours before the hour at which the petition is to
be heard.
Sec. 734. NOTICE OF PETITION; SERVICE ON THE WESTCHESTER COUNTY
DEPARTMENT OF SOCIAL SERVICES.
In the county of Westchester, if the local legislative body has,
by local law, opted to require such notice, service of a copy of
the notice of petition and petition in any proceeding commenced
against a residential tenant in accordance with the provisions of
this article shall be served upon the county commissioner of
social services. Such service shall be made by certified mail,
return receipt requested, directed to an address set forth in the
local law, or pursuant to the provisions of the civil practice
law and rules. Such service shall be made at least five days
before the return date set in the notice of petition. Proof of
such service shall be filed with the court. Failure to serve the
commissioner shall not be a jurisdictional defect, and shall not
be a defense to a proceeding brought pursuant to the provisions
of this article.
Sec. 735. MANNER OF SERVICE; FILING; WHEN SERVICE COMPLETE.
1. Service of the notice of petition and petition shall be made
by personally delivering them to the respondent; or by
delivering to and leaving personally with a person of
suitable age and discretion who resides or is employed at
the property sought to be recovered, a copy of the notice of
petition and petition, if upon reasonable application
admittance can be obtained and such person found who will
receive it; or if admittance cannot be obtained and such
person found, by affixing a copy of the notice and petition
upon a conspicuous part of the property sought to be
recovered or placing a copy under the entrance door of such
premises; and in addition, within one day after such
delivering to such suitable person or such affixing or
placement, by mailing to the respondent both by registered
or certified mail and by regular first class mail,
(a) if a natural person, as follows: at the property sought
to be recovered, and if such property is not the place
of residence of such person and if the petitioner shall
have written information of the residence address of
such person, at the last residence address as to which
the petitioner has such information, or if the
petitioner shall have no such information, but shall
have written information of the place of business or
employment of such person, to the last business or
employment address as to which the petitioner has such
information; and
(b) if a corporation, joint-stock or other unincorporated
association, as follows: at the property sought to be
recovered, and if the principal office or principal
place of business of such corporation, joint stock or
other unincorporated association is not located on the
property sought to be recovered, and if the petitioner
shall have written information of the principal office
or principal place of business within the state, at the
last place as to which petitioner has such information,
or if the petitioner shall have no such information but
shall have written information of any office or place
of business within the state, to any such place as to
which the petitioner has such information. Allegations
as to such information as may affect the mailing
address shall be set forth either in the petition, or
in a separate affidavit and filed as part of the proof
of service.
2. The notice of petition, or order to show cause, and petition
together with proof of service thereof shall be filed with
the court or clerk thereof within three days after;
(a) personal delivery to respondent, when service has been
made by that means, and such service shall be complete
immediately upon such personal delivery; or
(b) mailing to respondent, when service is made by the
alternatives above provided, and such service shall be
complete upon the filing of proof of service.
Sec. 741. CONTENTS OF PETITION.
The petition shall be verified by the person authorized by
section seven hundred twenty-one to maintain the proceeding; or
by a legal representative, attorney or agent of such person
pursuant to subdivision (d) of section thirty hundred twenty of
the civil practice law and rules. An attorney of such person may
verify the petition on information and belief notwithstanding the
fact that such person is in the county where the attorney has his
office. Every petition shall:
1. State the interest of the petitioner in the premises from
which removal is sought.
2. State the respondent's interest in the premises and his
relationship to petitioner with regard thereto.
3. Describe the premises from which removal is sought.
4. State the facts upon which the special proceeding is based.
5. State the relief sought. The relief may include a judgment
for rent due, and for a period of occupancy during which no
rent is due, for the fair value of use and occupancy of the
premises if the notice of petition contains a notice that a
demand for such a judgment has been made.
Sec. 743. ANSWER.
Except as provided in section 732, relating to a proceeding for
non-payment of rent, at the time when the petition is to be heard
the respondent, or any person in possession or claiming
possession of the premises, may answer, orally or in writing. If
the answer is oral the substance thereof shall be indorsed upon
the petition. If the notice of petition was served at least eight
days before the time at which it was noticed to be heard and it
so demands, the answer shall be made at least three days before
the time the petition is noticed to be heard and, if in writing,
it shall be served within such time; whereupon any reply shall be
served at least one day before such time. The answer may contain
any legal or equitable defense, or counterclaim. The court may
render affirmative judgment for the amount found due on the
counterclaim.
Sec. 745. TRIAL.
1. Where triable issues of fact are raised, they shall be tried
by the court unless, at the time the petition is noticed to
be heard, a party demands a trial by jury, in which case
trial shall be by jury. At the time when issue is joined the
court, in its discretion at the request of either party and
upon proof to its satisfaction by affidavit or orally that
an adjournment is necessary to enable the applicant to
procure his necessary witnesses, or by consent of all the
parties who appear, may adjourn the trial of the issue, but
not more than ten days, except by consent of all parties.
2. In the city of New York:
(a) In a summary proceeding upon the second request by the
tenant for an adjournment, the court shall direct that
the tenant post all sums as they become due for future
rent and use and occupancy, which may be established
without the use of expert testimony, unless waived by
the court for good cause shown. Two adjournments shall
not include an adjournment requested by a tenant
unrepresented by counsel for the purpose of securing
counsel made on the initial return date of the
proceeding. Such future rent and use and occupancy sums
shall be deposited with the clerk of the court or paid
to such other person or entity, including the
petitioner, as the court shall direct or shall be
expended for such emergency repairs as the court shall
approve.
(b) In any adjournment of a summary proceeding, other than
on consent or at the request of the petitioner, the
court shall at the petitioner's request state on the
record why for good cause shown it is not directing the
tenant to pay or post all sums demanded pursuant to a
lease or rental agreement in the proceeding as rent and
use and occupancy.
(c) The provisions of this subdivision shall not apply if
the housing accommodation in question or the public
areas pertaining thereto are charged with immediately
hazardous violations of record as defined by the New
York city housing maintenance code.
(d) The court may dismiss any summary proceeding without
prejudice and with costs to the respondent by reason of
excessive adjournments requested by the petitioner.
(e) The provisions of this subdivision shall not be
construed as to deprive a tenant of a trial of any
summary proceeding.
Sec. 747. JUDGMENT.
1. The court shall direct that a final judgment be entered
determining the rights of the parties. The judgment shall
award to the successful party the costs of the special
proceeding.
2. The judgment shall not bar an action to recover the
possession of real property. The judgment shall not bar an
action, proceeding or counterclaim, commenced or interposed
within sixty days of entry of the judgment, for affirmative
equitable relief which was not sought by counterclaim in the
proceeding because of the limited jurisdiction of the court.
3. If the proceeding is founded upon an allegation of forcible
entry or forcible holding out the court may award to the
successful party a fixed sum as costs, not exceeding fifty
dollars, in addition to his disbursements.
4. The judgment, including such money as it may award for rent
or otherwise, may be docketed in such books as the court
maintains for recording the steps in a summary proceeding;
unless a rule of the court, or the court by order in a given
case, otherwise provides, such judgment need not be recorded
or docketed in the books, if separately maintained, in which
are docketed money judgments in an action.
Sec. 749. WARRANT.
1. Upon rendering a final judgment for petitioner, the court
shall issue a warrant directed to the sheriff of the county
or to any constable or marshal of the city in which the
property, or a portion thereof, is situated, or, if it is
not situated in a city, to any constable of any town in the
county, describing the property, and commanding the officer
to remove all persons, and, except where the case is within
section 715, to put the petitioner into full possession.
2. The officer to whom the warrant is directed and delivered
shall give at least seventy-two hours notice, in writing and
in the manner prescribed in this article for the service of
a notice of petition, to the person or persons to be evicted
or dispossessed and shall execute the warrant between the
hours of sunrise and sunset.
3. The issuing of a warrant for the removal of a tenant cancels
the agreement under which the person removed held the
premises, and annuls the relation of landlord and tenant,
but nothing contained herein shall deprive the court of the
power to vacate such warrant for good cause shown prior to
the execution thereof. Petitioner may recover by action any
sum of money which was payable at the time when the special
proceeding was commenced and the reasonable value of the use
and occupation to the time when the warrant was issued, for
any period of time with respect to which the agreement does
not make any provision for payment of rent.
Sec. 751. STAY UPON PAYING RENT OR GIVING UNDERTAKING;
DISCRETIONARY STAY OUTSIDE CITY OF NEW YORK.
The respondent may, at any time before a warrant is issued, stay
the issuing thereof and also stay an execution to collect the
costs, as follows:
1. Where the lessee or tenant holds over after a default in the
payment of rent, or of taxes or assessments, he may effect a
stay by depositing the amount of the rent due or of such
taxes or assessments, and interest and penalty, if any
thereon due, and the costs of the special proceeding, with
the clerk of the court, or where the office of clerk is not
provided for, with the court, who shall thereupon, upon
demand, pay the amount deposited to the petitioner or his
duly authorized agent; or by delivering to the court or
clerk his undertaking to the petitioner in such sum as the
court approves to the effect that he will pay the rent, or
such taxes or assessments, and interest and penalty and
costs within ten days, at the expiration of which time a
warrant may issue, unless he produces to the court
satisfactory evidence of the payment.
2. Where the lessee or tenant has taken the benefit of an
insolvency statute or has been adjudicated a bankrupt, he
may effect a stay by paying the costs of the special
proceeding and by delivering to the court or clerk his
undertaking to the petitioner in such a sum as the court
approves to the effect that he will pay the rent of the
premises as it has become or thereafter becomes due.
3. Where he continues in possession of real property which has
been sold by virtue of an execution against his property, he
may effect a stay by paying the costs of the special
proceeding, and delivering to the court or clerk an
affidavit that he claims the possession of the property by
virtue of a right or title acquired after the sale or as
guardian or trustee for another; together with his
undertaking to the petitioner in such a sum as the court
approves to the effect that he will pay any costs and
damages which may be recovered against him in an action to
recover the property brought against him by the petitioner
within six months thereafter; and that he will not commit
any waste upon or injury to the property during his
occupation thereof.
4. (a) In a proceeding to recover the possession of
premises outside the city of New York occupied for
dwelling purposes, other than a room or rooms in an
hotel, lodging house or rooming house, upon the ground
that the occupant is holding over and continuing in
possession of the premises after the expiration of his
term and without the permission of the landlord, or, in
a case where a new lessee is entitled to possession,
without the permission of the new lessee, the court, on
application of the occupant, may stay the issuance of a
warrant and also stay any execution to collect the
costs of the proceeding for a period of not more than
four months, if it appears that the premises described
in the petition are used for dwelling purposes; that
the application is made in good faith; that the
applicant cannot within the neighborhood secure
suitable premises similar to those occupied by him and
that he made due and reasonable efforts to secure such
other premises, or that by reason of other facts it
would occasion extreme hardship to him or his family if
the stay were not granted.
(b) Such stay shall be granted and continue effective only
upon the condition that the person against whom the
judgment is entered shall make a deposit in court of
the entire amount, or such installments thereof from
time to time, as the court may direct, for the
occupation of the premises for the period of the stay,
at the rate for which he was liable as rent for the
month immediately prior to the expiration of his term
or tenancy, plus such additional amount, if any, as the
court may determine to be the difference between such
rent and the reasonable rent or value of the use and
occupation of the premises; such deposit shall also
include all rent unpaid by the occupant prior to the
stay.
The amount of such deposit shall be determined by the
court upon the application for the stay and such
determination shall be final and conclusive in respect
to the amount of such deposit, and the amount thereof
shall be paid into court, in such manner and in such
installments, if any, as the court may direct. A
separate account shall be kept of the amount to the
credit of each proceeding, and all such payments shall
be deposited in a bank or trust company and shall be
subject to the check of the clerk of the court, if
there be one, or otherwise of the court. The clerk of
the court, if there be one, and otherwise the court
shall pay to the landlord or his duly authorized agent,
the amount of such deposit in accordance with the terms
of the stay or the further order of the court.
(c) The provisions of this subdivision shall not apply to a
proceeding where the petitioner shows to the
satisfaction of the court that he desires in good faith
to recover the premises for the purposes of demolishing
same with the intention of constructing a new building,
plans for which new building shall have been duly filed
and approved by the proper authority; nor shall it
apply to a proceeding to recover possession upon the
ground that an occupant is holding over and is
objectionable if the landlord shall establish to the
satisfaction of the court that such occupant is
objectionable.
(d) Any provision of a lease or other agreement whereby a
lessee or tenant waives any provision of this
subdivision shall be deemed against public policy and
void.
(e) The provisions of this subdivision shall continue in
effect only until September first, nineteen hundred
sixty-seven.
Sec. 753. STAY WHERE TENANT HOLDS OVER IN PREMISES OCCUPIED FOR
DWELLING PURPOSES IN CITY OF NEW YORK.
1. In a proceeding to recover the possession of premises in the
city of New York occupied for dwelling purposes, other than
a room or rooms in an hotel, lodging house, or rooming
house, upon the ground that the occupant is holding over and
continuing in possession of the premises after the
expiration of his term and without the permission of the
landlord, or, in a case where a new lessee is entitled to
possession, without the permission of the new lessee, the
court, on application of the occupant, may stay the issuance
of a warrant and also stay any execution to collect the
costs of the proceeding for a period of not more than six
months, if it appears that the premises are used for
dwelling purposes; that the application is made in good
faith; that the applicant cannot within the neighborhood
secure suitable premises similar to those occupied by him
and that he made due and reasonable efforts to secure such
other premises, or that by reason of other facts it would
occasion extreme hardship to him or his family if the stay
were not granted.
2. Such stay shall be granted and continue effective only upon
the condition that the person against whom the judgment is
entered shall make a deposit in court of the entire amount,
or such installments thereof from time to time as the court
may direct, for the occupation of the premises for the
period of the stay, at the rate for which he was liable as
rent for the month immediately prior to the expiration of
his term or tenency, plus such additional amount, if any, as
the court may determine to be the difference between such
rent and the reasonable rent or value of the use and
occupation of the premises; such deposit shall also include
all rent unpaid by the occupant prior to the period of the
stay. The amount of such deposit shall be determined by the
court upon the application for the stay and such
determination shall be final and conclusive in respect to
the amount of such deposit, and the amount thereof shall be
paid into court, in such manner and in such installments, if
any, as the court may direct. A separate account shall be
kept of the amount to the credit of each proceeding, and all
such payments shall be deposited in a bank or trust company
and shall be subject to the check of the clerk of the court,
if there be one, or otherwise of the court. The clerk of the
court, if there be one, and otherwise the court shall pay to
the landlord or his duly authorized agent, the amount of
such deposit in accordance with the terms of the stay or the
further order of the court.
3. The provisions of this section shall not apply to a
proceeding where the petitioner shows to the satisfaction of
the court that he desires in good faith to recover the
premises for the purpose of demolishing same with the
intention of constructing a new building, plans for which
new building shall have been duly filed and approved by the
proper authority; nor shall it apply to a proceeding to
recover possession upon the ground that an occupant is
holding over and is objectionable if the landlord shall
establish to the satisfaction of the court that such
occupant is objectionable.
4. In the event that such proceeding is based upon a claim that
the tenant or lessee has breached a provision of the lease,
the court shall grant a ten day stay of issuance of the
warrant, during which time the respondent may correct such
breach.
5. Any provision of a lease or other agreement whereby a lessee
or tenant waives any provision of this section shall be
deemed against public policy and void.
Sec. 755. STAY OF PROCEEDING OR ACTION FOR RENT UPON FAILURE TO
MAKE REPAIRS.
1. (a) Upon proper proof that a notice or order to remove
or cease a nuisance or a violation or to make necessary
and proper repairs has been made by the municipal
department charged with the enforcement of the multiple
dwelling law, the multiple residence law, or any other
applicable local housing code, or officer or officers
thereof charged with the supervision of such matters,
if the condition against which such notice or order is
directed is, in the opinion of the court, such as to
constructively evict the tenant from a portion of the
premises occupied by him, or is, or is likely to
become, dangerous to life, health, or safety, the court
before which the case is pending may stay proceedings
to dispossess the tenant for non-payment of rent or any
action for rent or rental value. In any such
proceeding, on the question of fact, as to the
condition of the dwelling the landlord or petitioner
shall have the burden of disproving the condition of
the dwelling as such condition is described in the
notice or order.
(b) Upon proper proof of the existence of a condition that
is in the opinion of the court, such as to
constructively evict the tenant from a portion of the
premises occupied by him, or is or is, likely to
become, dangerous to life, health, or safety, the court
before which the case is pending may stay proceedings
to dispossess the tenant for non-payment of rent, or
any action for rent or rental value.
(c) The court shall in no case grant a stay where it
appears that the condition against which the notice or
order is directed has been created by the willful or
negligent act of the tenant or his agent. Such stay
shall continue in force, until an order shall be made
by the court vacating it, but no order vacating such
stay shall be made, except upon three days' notice of
hearing to the tenant, or respondent, or his attorney,
and proof that such notice or order has been complied
with.
2. The tenant or respondent shall not be entitled to the stay
unless he shall deposit with the clerk of the court the rent
then due, which shall, for the purposes of this section, be
deemed the same as the tenant was liable for during the
preceding month or such as is reserved as the monthly rent
in the agreement under which he obtained possession of the
premises. The stay may be vacated upon three days' notice
upon failure to deposit with the clerk the rent within five
days after it is due, during the pendency of the proceeding
or action.
3. During the continuance of the stay, the court may direct, in
its discretion, upon three days notice to all parties, the
release to a contractor or materialman of all or such part
of the moneys on deposit as shall be sufficient to pay bills
properly presented by such contractor or materialman for the
maintenance of and necessary repairs to the building
(including but not limited to payments for fuel,
electricity, gas, janitorial services and repairs necessary
to remove violations), upon a showing by the tenant that the
landlord is not meeting his legal obligations therefor or
direct such release to a municipal department to pay bills
and expenses for such maintenance and repairs upon a showing
that the landlord did not meet his legal obligation to
provide such maintenance or perform repairs and that the
department incurred expenses therefor. Upon the entry of an
order vacating the stay the remaining money deposited shall
be paid to the plaintiff or landlord or his duly authorized
agent.
4. Neither party shall be entitled to any costs in any
proceeding or action wherein the stay shall be granted
except that costs may be awarded against the tenant or
defendant in the discretion of the court in the event the
condition complained of shall be found to be due to the
willful act of the tenant or defendant, such costs, however,
not to exceed the sum of twenty-five dollars.
Sec. 756. STAY OF SUMMARY PROCEEDINGS OR ACTIONS FOR RENT UNDER
CERTAIN CONDITIONS.
In the event that utilities are discontinued in any part of a
multiple dwelling because of the failure of the landlord or other
person having control of said multiple dwelling to pay for
utilities for which he may have contracted, any proceeding to
dispossess a tenant from said building or an action against any
tenant of said building for rent shall be stayed until such time
as the landlord or person having control of said multiple
dwelling pays the amount owing for said utilities and until such
time as the utilities are restored to working order.
Sec. 761. REDEMPTION BY LESSEE.
Where the special proceeding is founded upon an allegation that a
lessee holds over after a default in the payment of rent, and the
unexpired term of the lease under which the premises are held
exceeds five years at the time when the warrant is issued the
lessee, his executor, administrator or assignee, at any time
within one year after the execution of the warrant, unless by the
terms of the lease such lessee shall have waived his right to
redeem, or such lessee, executor, administrator or assignee shall
have subsequently waived the right to redeem by a written
instrument filed and recorded in the office in which the lease is
recorded, or if not so recorded, in the office in which deeds are
required to be recorded of the county in which the leased
premises are located, may pay or tender to the petitioner, his
heir, executor, administrator or assignee, or if, within five
days before the expiration of the year he cannot be found with
reasonable diligence within the city or town wherein the property
or a portion thereof is situated, then to the court which issued
the warrant, all rent in arrears at the time of the payment or
tender with interest thereupon and the costs and charges incurred
by the petitioner. Thereupon the person making the payment or
tender shall be entitled to the possession of the demised
premises under the lease and may hold and enjoy the same
according to the terms of the original demise, except as
otherwise prescribed in section 765.
Sec. 763. REDEMPTION BY CREDITOR OF LESSEE.
In a case specified in section 761, a judgment creditor of the
lessee whose judgment was docketed in the county before the
precept was issued, or a mortgagee of the lease whose mortgage
was duly recorded in the county before the precept was issued,
unless by the terms of the lease the lessee shall have waived his
right to redeem, or such lessee, or his executor, administrator
or assignee shall have subsequently waived the right to redeem by
a written instrument filed and recorded in the office in which
the lease is recorded, or if not so recorded, in the office in
which deeds are required to be recorded of the county in which
the leased premises are located, before such judgment was
docketed or such mortgage recorded, or such judgment creditor or
mortgagee himself shall have waived in writing his right to
redeem, may at any time before the expiration of one year after
the execution of the warrant, unless a redemption has been made
as prescribed in section 761, file with the court which issued
the warrant a notice specifying his interest and the sum due to
him, describing the premises, and stating that it is his
intention to redeem as prescribed in this section. If a
redemption is not made by the lessee, his executor, administrator
or assignee within a year after the execution of the warrant, the
person so filing a notice, or, if two or more persons have filed
such notices the one who holds the first lien, at any time before
two o'clock of the day, not a Sunday or a public holiday, next
succeeding the last day of the year, may redeem for his own
benefit in like manner as the lessee, his executor, administrator
or assignee might have so redeemed. Where two or more judgment
creditors or mortgagees have filed such notices, the holder of
the second lien may so redeem at any time before two o'clock of
the day, not a Sunday or a public holiday, next succeeding that
in which the holder of the first lien might have redeemed; and
the holder of the third and each subsequent lien may redeem in
like manner at any time before two o'clock of the day, not a
Sunday or a public holiday, next succeeding that in which his
predecessor might have redeemed. But a second or subsequent
redemption is not valid unless the person redeeming pays or
tenders to each of his predecessors who has redeemed the sum paid
by him to redeem and also the sum due upon his judgment or
mortgage; or deposits those sums with the court for the benefit
of his predecessor or predecessors.
Sec. 765. EFFECT OF REDEMPTION UPON LEASE.
Where a redemption is made, as prescribed in this article, the
rights of the person redeeming are subject to a lease, if any,
executed by the petitioner since the warrant was issued, so far
that the new lessee, his assigns, undertenants, or other
representatives, upon complying with the terms of the lease, may
hold the premises so leased until twelve o'clock, noon, of the
first day of May next succeeding the redemption. And in all other
respects, the person so redeeming, his assigns and
representatives succeed to all the rights and liabilities of the
petitioner under such a lease.
Sec. 767. ORDER OF REDEMPTION; LIABILITY OF PERSONS REDEEMING.
The person redeeming, as prescribed in this article or the owner
of the property so redeemed, may present to the court which
issued the warrant a petition setting forth the facts of the
redemption and praying for an order establishing the rights and
liabilities of the parties upon the redemption, whereupon the
court must make an order requiring the other party to the
redemption to show cause at a time and place therein specified
why the prayer of the petition should not be granted. The order
to show cause must be made returnable not less than two nor more
than ten days after it is granted; and it must be served at least
two days before it is returnable. Upon the return thereof, the
court must hear the allegations and proofs of the parties and
must make such a judgment as justice requires. The costs and
expenses must be paid by the petitioner. The judgment, or a
certified copy thereof, may be recorded in like manner as a deed.
A person, other than the lessee, who redeems as prescribed in
this article succeeds to all the duties and liabilities of the
lessee accruing after the redemption as if he was named as lessee
in the lease.
Sec. 769. JURISDICTION; COURT; VENUE.
1. A special proceeding by tenants of a dwelling in the city of
New York or the counties of Nassau, Suffolk, Rockland and
Westchester for a judgment directing the deposit of rents
into court and their use for the purpose of remedying
conditions dangerous to life, health or safety may be
maintained in the civil court of the city of New York, the
district court of the counties of Suffolk and Nassau and the
county courts or city courts in the counties of Rockland and
Westchester.
2. The place of trial of the special proceeding shall be within
the county in which the real property or a portion thereof
from which the rents issue is situated.
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ARTICLE 7-A
SPECIAL PROCEEDINGS BY TENANTS OF DWELLINGS
IN THE CITY OF NEW YORK AND THE COUNTIES OF NASSAU,
SUFFOLK, ROCKLAND AND WESTCHESTER FOR JUDGMENT
DIRECTING DEPOSIT OF RENTS AND THE USE THEREOF FOR THE
PURPOSE OF REMEDYING CONDITIONS DANGEROUS TO LIFE,
HEALTH OR SAFETY
Section 769. Jurisdiction; court; venue.
770. Grounds for the proceeding.
771. Commencement; notice of petition; time
and manner of service.
772. Contents of petition.
773. Answer.
774. Trial.
775. Defenses.
776. Judgment.
777. Application by mortgagee or lienor of
record or other person having an interest in
the property.
778. Appointment of administrator.
779. Presentation or settlement of accounts.
780. Waiver void.
781. "Owner" defined.
782. "Dwelling" defined.
783. Defense of warranty of habitability
inapplicable.
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Sec. 770. GROUNDS FOR THE PROCEEDING.
1. One-third or more of the tenants occupying a dwelling
located in the city of New York or the commissioner of the
department of the city of New York charged with enforcement
of the housing maintenance code of such city, or in the
counties of Nassau, Suffolk, Rockland and Westchester may
maintain a special proceeding as provided in this article,
upon the ground that there exists in such dwellings or in
any part thereof a lack of heat or of running water or of
light or of electricity or of adequate sewage disposal
facilities, or any other condition dangerous to life, health
or safety, which has existed for five days, or an
infestation by rodents, or any combination of such
conditions; or course of conduct by the owner or his agents
of harassment, illegal eviction, continued deprivation of
services or other acts dangerous to life, health or safety.
2. If the proceeding is instituted by the commissioner of the
department of the city of New York charged with enforcement
of the housing maintenance code of such city, one-third or
more of the tenants may, at any time thereafter during the
pendency of the proceeding or after final judgment pursuant
to section seven hundred seventy-six or seven hundred
seventy-seven of this article, petition for substitution of
themselves in place and stead of such commissioner of such
department. Such substitution shall be ordered by the court
unless good reason to the contrary shall be shown.
Sec. 771. COMMENCEMENT; NOTICE OF PETITION; TIME AND MANNER OF
SERVICE.
1. A special proceeding prescribed by this article shall be
commenced by the service of a petition and notice of
petition. A notice of petition may be issued only by a judge
or the clerk of the court.
2. The notice of petition shall specify the time and place of
the hearing on the petition and state that if at such time,
a defense to such petition is not interposed and established
by the owner or any mortgagee or lienor of record, a final
judgment may be rendered directing that the rents due on the
date of entry of such judgment from the petitioning tenants
and the rents due on the dates of service of such judgment
on all other tenants occupying such dwelling, from such
other tenants, shall be deposited with the administrator
appointed pursuant to section seven hundred seventy-eight of
this article, and any rents to become due in the future from
such petitioners and from all other tenants occupying such
dwelling shall be deposited with such administrator as they
fall due; and that such deposited rents shall be used,
subject to the court's direction, to the extent necessary to
remedy the condition or conditions alleged in the petition.
3. The notice of petition and petition shall be served upon the
owner of such dwelling last registered with the department
of housing preservation and development of such city
pursuant to article forty-one of chapter twenty-six of the
administrative code of the city of New York and in Nassau,
Suffolk, Rockland and Westchester counties upon the person
set forth as the owner on the last recorded deed to the
rented property and upon every mortgagee and lienor of
record, and upon the city of New York, at least five days
before the time at which the petition is noticed to be
heard.
4. The proof of service shall be filed with the court before
which the petition is to be heard on or before the return
date.
5. Manner of service.
a. Service of the notice of petition and petition shall be
made by personally delivering them to the person or
persons required to be served pursuant to subdivision
three of this section. Service upon the city of New
York shall be made by personal delivery to the
commissioner of the city department charged with
enforcement of the housing maintenance code of such
city, or to an agent duly authorized to accept such
service on his behalf. If service cannot with due
diligence be made within the city upon an owner,
mortgagee or lienor of record in such manner, it shall
be made:
(1) upon the owner last registered with the department
of housing preservation and development pursuant
to article forty-one of chapter twenty-six of the
administrative code of the city of New York and in
Nassau, Suffolk, Rockland and Westchester counties
upon the person set forth as the owner on the last
recorded deed to the rented property by delivering
to and leaving personally with the person
designated pursuant to article forty-one of
chapter twenty-six of such code as managing agent
of the subject dwelling, and in Nassau, Suffolk,
Rockland and Westchester counties upon the person
designated as the managing agent of the rented
property if one shall have been designated, a copy
of the notice of petition and petition;
(2) upon a mortgagee or lienor of record, by
registered or certified mail, return receipt
requested, at the address set forth in the
recorded mortgage or lien.
b. If such personal service upon the person designated
pursuant to article forty-one of chapter twenty-six of
the administrative code of the city of New York as
managing agent of the subject dwelling and in Nassau,
Suffolk, Rockland and Westchester counties upon the
person set forth as the owner on the last recorded deed
to the rented property cannot be made with due
diligence, service upon such last registered owner
shall be made by affixing a copy of the notice and
petition upon a conspicuous part of the subject
dwelling; and in addition, within two days after such
affixing, by sending a copy thereof by registered or
certified mail, return receipt requested, to the owner
at the last address registered by him with the
department of housing preservation and development or,
in the absence of such registration, to the address set
forth in the last recorded deed with respect to such
premises.
6. Notice to non-petitioning tenants. Notice of the proceeding
shall be given to the non-petitioning tenants occupying the
dwelling by affixing a copy of the notice of petition and
petition upon a conspicuous part of the subject dwelling.
Sec. 772. CONTENTS OF PETITION.
The petition shall:
1. Allege material facts showing that there exists in such
dwelling or any part thereof one or more of the following: a
lack of heat or of running water or of light or electricity
or of adequate sewage disposal facilities, or any other
condition dangerous to life, health or safety, which has
existed for five days, or an infestation of rodents or
course of conduct by the owner or his agents of harassment,
illegal eviction, continued deprivation of services or other
acts dangerous to life, health or safety.
2. If the petitioners shall be tenants occupying the dwelling,
they shall allege the number of petitioners making the
petition and that they constitute one-third or more of the
tenants of said dwelling in occupancy thereof.
3. Allege a brief description of the nature of the work
required to remove or remedy the condition and an estimate
as to the cost thereof except that if the petitioners shall
be tenants occupying the dwelling, the petition may allege
the conditions complained of in which event such description
shall not be required to be made by anyone not a party to
the petition.
4. If the petitioners shall be tenants occupying the dwelling,
they shall allege the amount of rent due from each such
petitioner, monthly.
5. State the relief sought.
Sec. 773. ANSWER.
At the time when the petition is to be heard, the owner and any
mortgagee or lienor of record, shall answer in writing. If the
notice of petition was served at least eight days before the time
at which it was noticed to be heard and it so demands, the answer
shall be served at least three days before the time the petition
is noticed to be heard and any reply shall be served at least one
day before such time.
Sec. 774. TRIAL.
Where triable issues of fact are raised, they shall be tried by
the court without a jury at the time when issue is joined.
However, the court, in its discretion, may grant an adjournment
of such trial at request of either party, if it determines that
an adjournment is necessary to enable either of the parties to
procure the necessary witnesses, or upon consent of all the
parties who appear. Such adjournment shall not be for more than
five days except by consent of all the parties who appear.
Sec. 775. DEFENSES.
It shall be a sufficient defense to the proceeding, if the owner
or any mortgagee or lienor of record establish that:
a. The condition or conditions alleged in the petition did not
in fact exist or that such condition or conditions have been
removed or remedied; or
b. Such condition or conditions has been caused by a
petitioning tenant or tenants or members of the family or
families of such petitioner or petitioners or of their
guests or by other residents of the dwelling or their
families or guests; or
c. Any tenant or resident of the dwelling has refused entry to
the owner or his agent to a portion of the premises for the
purpose of correcting such condition or conditions.
Sec. 776. JUDGMENT.
The court shall render a final judgment either
a. Dismissing the petition for failure to affirmatively
establish the allegations thereof or because of the
affirmative establishment by the owner or a mortgagee or
lienor of record of a defense or defenses specified in
section seven hundred seventy- five of this article; or
b. Directing that
(1) the rents due on the date of the entry of such judgment
from the petitioning tenants and the rents due on the
dates of service of the judgment on all other
residential and non-residential tenants occupying such
dwelling from such other tenants, shall be deposited
with the administrator appointed by the court, pursuant
to section seven hundred seventy-eight of this article;
(2) any rents to become due in the future from all tenants
occupying such dwelling shall be deposited with such
administrator as they fall due;
(3) such deposited rents shall be used, subject to the
court's direction, to the extent necessary to remedy
the condition or conditions alleged in the petition and
(4) upon the completion of such work in accordance with
such judgment, any remaining surplus shall be turned
over to the owner, together with a complete accounting
of the rents deposited and the costs incurred; and
granting such other and further relief as to the court
may seem just and proper. A certified copy of such
judgment shall be served personally upon each non-
petitioning tenant occupying such dwelling and upon the
city of New York by service as provided in subdivision
five of section seven hundred seventy- one of this
article. If personal service on any such non-
petitioning tenant cannot be made with due diligence,
service on such tenant shall be made by affixing a
certified copy of such judgment on the entrance door of
such tenant's apartment, store or other unit and, in
addition, within one day after such affixing, by
sending a certified copy thereof by registered mail,
return receipt requested, to such tenant. Any right of
the owner of such dwelling to collect such rent moneys
from any petitioning tenant of such dwelling on or
after the date of entry of such judgment, and from any
non-petitioning tenant of such dwelling on or after the
date of service of such judgment on such non-
petitioning tenant as herein provided, shall be void
and unenforceable to the extent that such petitioning
or non-petitioning tenant, as the case may be, has
deposited such moneys with the administrator in
accordance with the terms of such judgment, regardless
of whether such right of the owner arises from a lease,
contract, agreement or understanding heretofore or
hereafter made or entered into or arises as a matter of
law from the relationship of the parties or otherwise.
It shall be a valid defense in any action or proceeding
against any such tenant to recover possession of real
property for the non-payment of rent or for use or
occupation to prove that the rent alleged to be unpaid
was deposited with the administrator in accordance with
the terms of a judgment entered under this section.
Sec. 777. APPLICATION BY MORTGAGEE OR LIENOR OF RECORD OR OTHER
PERSON HAVING AN INTEREST IN THE PROPERTY.
a. If, after a trial, the court shall determine that the facts
alleged in the petition have been affirmatively established
by the petitioners, that no defense thereto specified in
section seven hundred seventy-five has been affirmatively
established by the owner or a mortgagee or lienor of record,
and that the facts alleged in the petition warrant the
granting of the relief sought, and if the owner or any
mortgagee or lienor of record or other person having an
interest in the property, shall apply to the court to be
permitted to remove or remedy the conditions specified in
such petition and shall (1) demonstrate the ability promptly
to undertake the work required; and (2) post security for
the performance thereof within the time, and in the amount
and manner, deemed necessary by the court, then the court,
in lieu of rendering judgment as provided in section seven
hundred seventy-six of this article, may issue an order
permitting such person to perform the work within a time
fixed by the court.
b. If, after the issuance of an order pursuant to subdivision a
of this section, but before the time fixed in such order for
the completion of the work prescribed therein, it shall
appear to the petitioners that the person permitted to do
the same is not proceeding with due diligence, the petitions
may apply to the court on notice to those persons who have
appeared in the proceeding for a hearing to determine
whether judgment should be rendered immediately as provided
in subdivision c of this section.
c. If, upon a hearing authorized in subdivision b hereof, the
court shall determine that such owner, mortgagee, lienor or
other person is not proceeding with due diligence, or upon
the failure of such owner, mortgagee, lienor or other person
to complete the work in accordance with the provisions of
said order, the court shall render a final judgment
appointing an administrator as authorized in section seven
hundred seventy-eight of this article. Such judgment shall
direct the administrator to apply the security posted by
such person to the removing or remedying of the condition or
conditions specified in the petition. In the event that the
amount of such security should be insufficient for such
purpose, such judgment shall direct the deposit of rents
with the administrator, as authorized by section seven
hundred seventy-six of this article, to the extent of such
deficiency. In the event that such security should exceed
the amount required to remove or remedy such condition or
conditions, such judgment shall direct the administrator to
file with the court, upon completion of the work prescribed
therein, a full accounting of the amount of such security
and the expenditures made pursuant to such judgment, and to
turn over such surplus to the person who posted such
security, together with a copy of such accounting.
Sec. 778. APPOINTMENT OF ADMINISTRATOR.
1. The court is authorized and empowered, in implementation of
a judgment rendered pursuant to section seven hundred
seventy-six or seven hundred seventy-seven of this article,
to appoint a person other than the owner, a mortgagee or
lienor, to receive and administer the rent moneys or
security deposited with him subject to the court's
direction. The court may appoint the commissioner of the
department of the city of New York charged with enforcement
of the housing maintenance code of such city or his designee
as such administrator, provided that he shall consent, in
writing, to such appointment. Any administrator is
authorized and empowered in accordance with the direction of
the court, to order the necessary materials, labor and
services to remove or remedy the conditions specified in the
judgment, and to make disbursements in payment thereof; and
to demand, collect and receive the rents from the tenants;
and to institute all necessary legal proceedings including,
but not limited to, summary proceedings for the removal of
any tenant or tenants; and to rent or lease for terms not
exceeding three years any part of said premises, however,
the court may direct the administrator to rent or lease
commercial parts of said premises for terms that the court
may approve. In addition, such administrator is authorized
and empowered in accordance with the direction of the court
to accept and repay such moneys as may be received from the
department charged with enforcement of the housing
maintenance code of the city of New York for the purpose of
replacing or substantially rehabilitating systems or making
other repairs or capital improvements authorized by the
court. All moneys expended by the department pursuant to the
foregoing shall constitute a debt recoverable from the owner
and a lien upon the building and lot, and upon the rents and
other income thereof. Such lien shall be enforced in
accordance with the provisions of article eight of
subchapter five of the housing maintenance code of the city
of New York. Such administrator, shall, upon completion of
the work prescribed in such judgment, file with the court a
full accounting of all receipts and expenditures for such
work. Such administrator shall dispose of the rents and
other monies deposited with him according to the following
order of priority:
(a) Payment in full for all of the work specified in the
judgment. Until all of the work specified in the
judgment has been completed and payment for such work
has been made, no other disbursements shall be
permitted, except for fuel bills, fire and liability
insurance, and bills for ordinary repairs and
maintenance.
(b) Payment of a reasonable amount for the services of such
administrator.
(c) Payment of outstanding real property tax liens claimed
by the city of New York.
(d) Payment of outstanding emergency repair liens filed and
recorded by the city of New York and outstanding liens
filed and recorded by the city pursuant to this
section.
(e) Payment to the owner of any surplus remaining after
payments of paragraphs (a) through (d) of this
subdivision have been made.
2. Unless the administrator is the city of New York, the court
may allow from the rent moneys or security on deposit a
reasonable amount for services of such administrator.
3. Unless such administrator is the city of New York, the
administrator so appointed shall furnish a bond, the amount
and form of which shall be approved by the court. In its
discretion and for good cause shown, the court may dispense
with the necessity for a bond. The cost of a required bond
shall be paid from the moneys so deposited.
4. Such administrator shall file a transcript of the judgment
appointing him with the county clerk within fifteen days of
his appointment.
5. The duties of such administrator shall not be affected by
the appointment of a receiver in an action to foreclose a
mortgage on the premises, except that the rights of the
owner, including the right to any surplus, pursuant to
paragraph (e) of subdivision one of this section, shall pass
to the receiver. The court in which the action to foreclose
a mortgage on the premises is pending may appoint such
administrator to serve as receiver in that action in
addition to his duties as administrator pursuant to this
article.
6. Such administrator shall be liable only in his official
capacity for injury to persons and property by reason of
conditions of the premises in a case where an owner would
have been liable; he shall not have any liability in his
personal capacity.
7. No city or county specified in section seven hundred sixty-
nine of this article shall be liable to any party, including
such administrator or the owner, for injury to persons or
property by reason of conditions of the premises or the acts
or omissions of such administrator, except that when the
city of New York is appointed administrator, liability shall
be determined in accordance with subdivision six of this