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NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
(RPAPL)

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
     section.

8.   The commissioner of the department of the city of New York
     charged with the enforcement of the housing maintenance code
     of such city shall promulgate rules and regulations
     regarding criteria for the selection of administrators to be
     appointed pursuant to this section and shall establish and
     maintain a list of persons approved by such department.
     Unless the administrator is the city of New York, any person
     appointed as an administrator within such city shall be
     selected from among the persons approved as administrators
     pursuant to such list.

9.   Such administrator shall, within thirty days of appointment,
     file with the court a plan for the provision of essential
     services and for the correction of such other hazardous
     conditions as may exist at the premises, specifying dates by
     which such services shall be provided and such conditions
     corrected. If such administrator cannot provide such
     services and correct such conditions by the dates specified
     in the plan, he shall be required to file with the court an
     amendment to the plan setting forth the reasons why such
     services and corrections could not be provided by such date
     and specifying new dates for such services and corrections.
     Such plan and any amendments to such plan shall be provided
     to the tenants by mail or by posting in a common area of the
     building and to the owner of record by mail.


Sec. 779. PRESENTATION OR SETTLEMENT OF ACCOUNTS.

The court shall require the keeping of written accounts itemizing
the receipts and expenditures under an order issued pursuant to
section seven hundred seventy-six or seven hundred seventy-seven
of this article, which shall be open to inspection by the owner,
any mortgagee or lienor or any other person having an interest in
such receipts or expenditures provided, however, notwithstanding
any other provision of law to the contrary, such information as
may be in the possession of the city of New York with the
department charged with the enforcement of the housing
maintenance code of such city shall be available from such
department for inspection only by the owner, tenant of such
property, or person having a recorded interest in the property.
Upon motion of the court or the administrator or of the owner,
any mortgagee or lienor of record or of any person having an
interest, the court may require a presentation or settlement of
the accounts with respect thereto. Notice of a motion for
presentation or settlement of such accounts shall be served on
the owner, any mortgagee or other lienor of record who appeared
in the proceeding and any person having an interest in such
receipts or expenditures.


Sec. 780. WAIVER VOID.

Any provision of a lease or other agreement whereby any provision
of this article for the benefit of a tenant, resident or occupant
of a dwelling is waived, shall be deemed against public policy
and shall be void.


Sec. 781. "OWNER" DEFINED.

As used in this article, the term "owner" shall mean and include
the owner or owners of the freehold of the premises or lesser
estate therein, mortgagee or vendee in possession, assignee of
rents, receiver, executor, trustee, lessee, agent, or any other
person, firm or corporation, directly or indirectly in control of
a dwelling, but shall not include a receiver appointed pursuant
to section three hundred nine of the multiple dwelling law.


Sec. 782. "DWELLING" DEFINED.

As used in this article, the term "dwelling" shall mean any
building or structure or portion thereof which is occupied in
whole or in part as the home, residence or sleeping place of one
or more human beings and is either rented, leased, let or hired
out, to be occupied, or is occupied as the residence or home of
three or more families living independently of each other; or is
a garden-type maisonette dwelling project as defined in the
multiple dwelling law or other similar dwellings which in their
aggregate are arranged or designed to provide three or more
apartments, have common facilities such as but not limited to a
sewer line, water main, or heating plant and are operated as a
unit under common ownership, notwithstanding that certificates of
occupancy were issued for portions thereof as one or two family
dwellings or that the dwellings are not a multiple dwelling as
defined in the multiple dwelling law.


Sec. 783. DEFENSE OF WARRANTY OF HABITABILITY INAPPLICABLE.

Notwithstanding any other provision of law, in any proceeding for
the payment of rent commenced by an administrator appointed
pursuant to this article, the provisions of section two hundred
thirty-five-b of the real property law pertaining to the warranty
of habitability shall not be a defense to such a proceeding for
rent which accrues during the period of time that a judgment or
an order pursuant to this article is in effect, unless the court
determines that the conditions upon which such defense is based
were caused by the failure of such administrator to perform his
duties in a reasonable manner.




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