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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.
