New York State Bill A5631

New York State Bill A05631


Summary of Bill A05631

BILL NO   A05631

SPONSOR   Reynolds

COSPNSR   Balboni, Anderson, Wirth, Guerin, Alfano

MLTSPNSR  Doran, Nesbitt, Straniere

Amd SS731 & 745, add S747-a, RPAP L
Provides that no court shall have jurisdiction to consider any affirmative
legal or equitable defense interposed in any summary proceeding brought to
recover possession of real property unless a deposit of the full amount of the
rent when due is made with the court.

---------------------------------------------------------------------------

Actions on Bill A05631

BILL NO   A05631

03/04/97  referred to judiciary

---------------------------------------------------------------------------

Votes on Bill A05631

Vote record not found for bill A5631

---------------------------------------------------------------------------

Memo on Bill A05631

BILL NUMBER: A5631

PURPOSE  OR  GENERAL  IDEA  OF  BILL:  To  require  a deposit of rent in
situations where a second adjournment is requested or a motion  is  made
which  would  delay  the commencement of a court action for more than 10
days.
SUMMARY OF SPECIFIC PROVISIONS: This bill would amend the Real  Property
Actions   and  Proceedings  Law  in  relation  to  landlord  and  tenant
proceedings.
Section 731 of the  Real  Property  Actions  and  Proceedings  Law  will
include  a  new  subdivision 3.   In the City of New York, the notice of
petition shall inform the respondent of the requirements of  subdivision
2 of S745 of the Real Property Actions and Proceedings Law.  Pursuant to
a  second  adjournment at the request of the tenant and/or the court, or
the  court`s  reserving  decision  upon  a  motion,   thereby   delaying
commencement  of  a  trial for more than ten days, the court will direct
that the tenant post all past rent and use and occupancy  prior  to  the
adjourned date and future rent and use and occupancy as it becomes due.
Subdivision  2 of S745 of the Real Property Actions and Proceedings Law,
will be amended, in the City of New York, to require tenants to post all
sums of past rent and use and occupancy due when a  second  request  for
adjournment  by  the  tenant  and/or  the  court  or  the court reserves
decision upon a motion which results in the delay of the commencement of
trial for more than ten days.  The posting for these past and all future
rents for use and occupancy is required  prior  to  the  adjourned  date
unless  the  respondent  can  establish  by  sworn  affidavit  or  at an
immediate  hearing,  that  respondent  has  properly  asserted   certain
defenses.  These are:
(1)The  petitioner  is  not a proper party to the proceeding pursuant to
S721 of this Chapter; or
(2)actual  eviction,  or  (ii)  actual  partial   eviction,   or   (iii)
constructive eviction, and respondent has quit the premises.
Two  adjournments shall not include an adjournment requested by a tenant
represented by counsel for the purpose of securing counsel made  on  the
initial return date of the proceeding.  The past due and future rent and
use and occupancy sums would be deposited with the clerk of the court or
paid  to  other  person or entity, including the petitioner, pursuant to
the court`s  direction  or  shall  be  expended  for  emergency  repairs
approved by the court.
If,  on  or  before  the  date ordered by the court, respondent fails to
comply  with  the  court`s  directions  in  regard  to  payment  to  the
petitioner,  or making a deposit with the clerk of the court of the full
amount of rent, use and occupancy due, the court will  dismiss,  without
prejudice,  the defenses and counterclaims interposed by the respondent.
Judgment for petitioner will be granted unless respondent has interposed
the defense of payment and shows, by a preponderance  of  the  evidence,
that the amount required to be deposited has previously been paid to the
petitioner.
If  respondent  makes a required deposit of rent but fails to deposit or
pay, upon the due date, all future rent and use and occupancy which  may
become  due,  either with the court or to the petitioner, up to the time
of the entry of judgment, the court shall order an  immediate  trial  of
the  issues  raised  in  the  petition.    The  court  shall  be without
jurisdiction to extend any time provided for such deposit.
Amounts  required  to  be  deposited  for  use  and  occupancy  may   be
established without the use of expert testimony.
Upon  the  entry  of  the  final  judgment in the proceeding, the clerk,
without further order of the court, forthwith pay over to the petitioner
the entire  amount  of  the  deposit,  unless  the  judgment  explicitly
provides to the contrary.

The  provisions  requiring  the deposit of past due rent and future rent
and use and occupancy as it becomes due may not be waived by the  court,
notwithstanding  any  affirmative  defense or counterclaim interposed by
the respondent including, but not limited  to,  any  allegation  of  any
breach by the petitioner of the warranty of habitability with respect to
the  premises  which  are  the  subject of the summary proceeding or any
other defense,  affirmative  defense  or  counter  claim  unless  it  is
specifically enumerated as noted above.
This  subdivision may not be construed as to deprive a tenant of a trial
of summary proceeding, provided the tenant appears in the proceeding and
complies with any court order directing the deposit or payment  of  rent
or use and occupancy.
The  bill  further  creates  a  new  Section  747-a of the Real Property
Actions and Proceedings Law to provide that in  any  summary  nonpayment
proceeding,  in which the respondent has appeared and the petitioner has
obtained a monetary or possessory judgment  pursuant  to  S747  of  this
Chapter,  the  court will not sign any orders to show cause on behalf of
the respondent which contains a stay of the issuance or execution of any
warrant of eviction unless the respondent  has  satisfied  the  judgment
amount  in  full  by payment to the petitioner or has deposited the full
amount of the judgment with the court clerk should such  deposit  occur,
the court, on demand, will pay the amount deposited to the petitioner or
his  authorized  agent.    In  the  event  respondent alleges payment to
petitioner, the court does have the authority to sign any orders to show
cause or issue  any  stays  unless  respondent  displays  to  the  court
satisfactory proof of such payment.
JUSTIFICATION:  This  legislation would require the deposit of rent in a
situation where a court commencement date has been delayed  or  where  a
tenant  has  requested  a  second  adjournment to the court action.  The
delays in a court proceeding can be several months. Often a tenant  will
not  pay  rent  while  these proceedings are pending.   This legislation
would have the clerk of the court accepting the amount of rent so that a
tenant would not be asked to pay a large accrual of  back  rent.    This
would protect the tenant from paying directly to the landlord and having
no satisfaction upon his or her complaint and would protect the landlord
from losing interest income due to him.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: The thirteenth day after it shall become law.