New York State Bill A5631

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Text of New York State Bill A05631


                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         5631

                              1997-1998 Regular Sessions

                                 I N  A S S E M B L Y

                                     March 4, 1997
                                      ___________

       Introduced by M. of A. REYNOLDS, BALBONI, ANDERSON, WIRTH, GUERIN, ALFA-
         NO -- Multi-Sponsored by -- M. of A. DORAN, NESBITT, STRANIERE -- read
         once and referred to the Committee on Judiciary

       AN  ACT  to  amend  the  real  property  actions and proceedings law, in
         relation to landlord and tenant proceedings

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section  1.  Section  731 of the real property actions and proceedings
    2  law is amended by adding a new subdivision 3 to read as follows:
    3    3. IN THE CITY OF NEW YORK, THE NOTICE OF PETITION  SHALL  ADVISE  THE
    4  RESPONDENT  OF  THE  REQUIREMENTS  OF  SUBDIVISION  TWO OF SECTION SEVEN
    5  HUNDRED FORTY-FIVE OF THIS ARTICLE AND SHALL STATE THAT UPON THE  SECOND
    6  ADJOURNMENT  AT  THE  REQUEST  OF  THE  TENANT  AND/OR THE COURT, OR THE
    7  COURT`S RESERVING DECISION UPON A MOTION THE EFFECT OF WHICH IS A  DELAY
    8  OF  THE  COMMENCEMENT  OF  TRIAL  FOR MORE THAN TEN DAYS, THE COURT WILL
    9  DIRECT THAT THAT TENANT POST ALL SUMS OF PAST RENT AND USE AND OCCUPANCY
   10  PRIOR TO THE ADJOURNED DATE AND FUTURE RENT AND USE AND OCCUPANCY AS  IT
   11  BECOMES DUE.
   12    S  2.  Subdivision  2  of section 745 of the real property actions and
   13  proceedings law, as added by chapter 403 of the laws of 1983, is amended
   14  to read as follows:
   15    2. In the city of New York:
   16    (a) In a summary proceeding upon the second {request by the tenant for
   17  an adjournment} OF TWO ADJOURNMENTS AT THE  REQUEST  OF  THE  RESPONDENT
   18  AND/OR  THE  COURT,  OR THE COURT`S RESERVING DECISION UPON A MOTION THE
   19  EFFECT OF WHICH IS A DELAY OF THE COMMENCEMENT OF TRIAL OF MORE THAN TEN
   20  DAYS, the court shall direct that the tenant post all sums OF PAST  RENT
   21  AND  USE  AND  OCCUPANCY  DUE,  SAID POSTING TO BE REQUIRED PRIOR TO THE
   22  ADJOURNED DATE, AND ALL SUMS as they become due for future rent and  use
   23  and  occupancy{,  which  may  be  established  without the use of expert
   24  testimony, unless waived by the court for good cause shown}, UNLESS  THE

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             { } is old law to be omitted.
                                                                  LBD03042-01-7

       A. 5631                            2

    1  RESPONDENT  CAN ESTABLISH BY SWORN AFFIDAVIT OR AT AN IMMEDIATE HEARING,
    2  TO THE SATISFACTION OF THE COURT THAT RESPONDENT HAS PROPERLY INTERPOSED
    3  ON THE FOLLOWING DEFENSES:
    4    (1) THE PETITIONER IS NOT A PROPER PARTY TO THE PROCEEDING PURSUANT TO
    5  SECTION SEVEN HUNDRED TWENTY-ONE OF THIS ARTICLE; OR
    6    (2)  (I)  ACTUAL  EVICTION,  OR (II) ACTUAL PARTIAL EVICTION, OR (III)
    7  CONSTRUCTIVE EVICTION; AND RESPONDENT HAS QUIT THE PREMISES.
    8    Two adjournments shall {not} include an  adjournment  requested  by  a
    9  tenant unrepresented by counsel for the purpose of securing counsel made
   10  on  the  initial return date of the proceeding. Such PAST DUE AND future
   11  rent and use and occupancy sums shall be deposited with the clerk of the
   12  court or paid to such other person or entity, including the  petitioner,
   13  as  the  court  shall  direct  or  shall  be expended for such emergency
   14  repairs as the court shall approve.
   15    (b) {In any adjournment of a summary proceeding, other than on consent
   16  or at the request of the petitioner, the court shall at the petitioner`s
   17  request state on the record why for good cause shown it is not directing
   18  the tenant to pay or post all sums  demanded  pursuant  to  a  lease  or
   19  rental  agreement  in  the proceeding as rent and use and occupancy} (I)
   20  IF, ON OR BEFORE THE DATE ORDERED BY THE COURT, RESPONDENT SHALL FAIL TO
   21  COMPLY WITH THE COURT`S DIRECTIONS WITH RESPECT TO DIRECT PAYMENT TO THE
   22  PETITIONER OR MAKING A DEPOSIT WITH THE CLERK OF THE COURT OF  THE  FULL
   23  AMOUNT  OF  THE  RENT  AND  USE  AND OCCUPANCY THEN DUE, THE COURT SHALL
   24  DISMISS WITHOUT PREJUDICE THE DEFENSES AND COUNTERCLAIMS  INTERPOSED  BY
   25  THE  RESPONDENT  AND GRANT JUDGMENT FOR PETITIONER UNLESS RESPONDENT HAS
   26  INTERPOSED THE DEFENSE OF PAYMENT AND SHOWS, BY A PREPONDERANCE  OF  THE
   27  EVIDENCE,  THAT  THE AMOUNT REQUIRED TO BE DEPOSITED HAS PREVIOUSLY BEEN
   28  PAID TO THE PETITIONER.
   29    (II) IN THE EVENT THAT THE RESPONDENT  MAKES  A  DEPOSIT  REQUIRED  BY
   30  SUBPARAGRAPH  (I)  OF THIS PARAGRAPH BUT FAILS TO DEPOSIT OR PAY, AS THE
   31  CASE MAY BE, UPON THE DUE DATE, ALL FURTHER RENT AND USE  AND  OCCUPANCY
   32  WHICH  MAY BECOME DUE, EITHER WITH THE COURT OR TO THE PETITIONER, UP TO
   33  THE TIME OF THE ENTRY OF JUDGMENT, THE COURT SHALL  ORDER  AN  IMMEDIATE
   34  TRIAL OF THE ISSUES RAISED IN THE PETITION.
   35    (III)  THE  COURT  SHALL  BE  WITHOUT  JURISDICTION TO EXTEND ANY TIME
   36  PROVIDED FOR SUCH DEPOSIT UNDER THIS SUBDIVISION.
   37    (IV) AMOUNTS REQUIRED TO BE DEPOSITED FOR USE  AND  OCCUPANCY  MAY  BE
   38  ESTABLISHED WITHOUT THE USE OF EXPERT TESTIMONY.
   39    (V)  UPON THE ENTRY OF THE FINAL JUDGMENT IN THE PROCEEDING, THE CLERK
   40  SHALL, WITHOUT FURTHER ORDER OF THE COURT, FORTHWITH  PAY  OVER  TO  THE
   41  PETITIONER THE ENTIRE AMOUNT OF THE DEPOSIT, UNLESS THE JUDGMENT EXPLIC-
   42  ITLY PROVIDES TO THE CONTRARY.
   43    (VI)  THE  PROVISIONS  OF THIS PARAGRAPH REQUIRING THE DEPOSIT OF PAST
   44  DUE RENT AND FUTURE RENT AND USE AND OCCUPANCY AS IT BECOMES  DUE  SHALL
   45  NOT  BE  WAIVED BY THE COURT, NOTWITHSTANDING ANY AFFIRMATIVE DEFENSE OR
   46  COUNTERCLAIM INTERPOSED BY THE RESPONDENT INCLUDING, BUT NOT LIMITED TO,
   47  ANY ALLEGATION OF ANY BREACH BY THE PETITIONER OF THE WARRANTY OF HABIT-
   48  ABILITY WITH RESPECT TO THE PREMISES WHICH ARE THE SUBJECT OF THE SUMMA-
   49  RY PROCEEDING OR ANY OTHER DEFENSE, AFFIRMATIVE DEFENSE OR  COUNTERCLAIM
   50  UNLESS  IT  IS  ONE OF THE ITEMS SPECIFICALLY ENUMERATED IN SUBPARAGRAPH
   51  ONE OR TWO OF PARAGRAPH (A) OF THIS SUBDIVISION, AND ALL OF THE REQUIRE-
   52  MENTS OF THE SUBDIVISION RELIED UPON ARE SATISFIED.
   53    (c) {The provisions of this subdivision shall not apply if the housing
   54  accommodation in question or the public  areas  pertaining  thereto  are
   55  charged  with  immediately  hazardous violations of record as defined by
   56  the New York city housing maintenance code.

       A. 5631                            3

    1    (d)} The court may dismiss any summary  proceeding  without  prejudice
    2  and  with  costs  to  the respondent by reason of excessive adjournments
    3  requested by the petitioner.
    4    {(e)} (D) The provisions of this subdivision shall not be construed as
    5  to  deprive  a tenant of a trial of any summary proceeding, PROVIDED THE
    6  TENANT APPEARS IN THE PROCEEDING  AND  COMPLIES  WITH  ANY  COURT  ORDER
    7  DIRECTING THE DEPOSIT OR PAYMENT OF RENT OR USE AND OCCUPANCY.
    8    S  3.  The  real  property  actions  and proceedings law is amended by
    9  adding a new section 747-a to read as follows:
   10    S 747-A. SUMMARY OF NONPAYMENT PROCEEDINGS. IN ANY SUMMARY  NONPAYMENT
   11  PROCEEDING  IN  WHICH THE RESPONDENT HAS APPEARED AND THE PETITIONER HAS
   12  OBTAINED A MONEY JUDGMENT OR POSSESSORY  JUDGMENT  PURSUANT  TO  SECTION
   13  SEVEN  HUNDRED  FORTY-SEVEN OF THIS ARTICLE THE COURT SHALL NOT SIGN ANY
   14  ORDERS TO SHOW CAUSE ON BEHALF OF THE RESPONDENT WHICH CONTAIN A STAY OF
   15  THE ISSUANCE OR EXECUTION OF ANY WARRANT OF EVICTION UNLESS THE RESPOND-
   16  ENT SHALL HAVE SATISFIED SUCH JUDGMENT AMOUNT IN FULL BY PAYMENT TO  THE
   17  PETITIONER OR SHALL HAVE DEPOSITED THE FULL AMOUNT OF SUCH JUDGMENT WITH
   18  THE  CLERK  OF  THE COURT. IN THE EVENT OF SUCH DEPOSIT, THE COURT SHALL
   19  UPON DEMAND PAY THE AMOUNT DEPOSITED  TO  THE  PETITIONER  OR  HIS  DULY
   20  AUTHORIZED AGENT. IN THE EVENT RESPONDENT ALLEGES PAYMENT TO PETITIONER,
   21  THE COURT SHALL BE WITHOUT AUTHORITY TO SIGN ANY ORDERS TO SHOW CAUSE OR
   22  ISSUE  ANY  STAYS UNLESS RESPONDENT SHALL DISPLAY TO THE COURT SATISFAC-
   23  TORY PROOF OF SUCH ALLEGED PAYMENT.
   24    S 4. This act shall take effect on the thirtieth day  after  it  shall
   25  have  become  a law and shall apply to proceedings commenced on or after
   26  such effective date.


Bill A5631
[ Summary ] [ Memo ]