NY State Senate Bill 2009-S204

Archive: Last Bill Status - In Senate Committee Housing, Construction And Community Development Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to housing, construction and community development
Feb 10, 2009	reported and committed to codes
Jan 07, 2009	referred to judiciary

2009-S204 (ACTIVE) - Details

Current Committee:: Senate Housing, Construction And Community Development
Law Section:: Real Property Actions and Proceedings Law
Laws Affected:: Amd §715, RPAP L
Versions Introduced in 2011-2012 Legislative Session:: S2221

2009-S204 (ACTIVE) - Summary

Increases the ability to remove persons from premises used for illegal purposes; enables tenants, block associations and community organizations within 1,000 feet of a property being used for an illegal activity to serve owners with a written notice requiring the owner to make application for the removal of the person using the premises for illegal activities and allows such organizations to bring a proceeding when the owner fails to act.

2009-S204 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S204

 TITLE OF BILL :
An act to amend the real property actions and proceedings law, in
relation to grounds and procedures to recover premises where use or
occupancy is illegal


 SUMMARY OF PROVISIONS :
This bill amends the Real Property Actions and Proceedings Law (RPAPL)
by amending Section 715 to remove archaic terms and enhance its use to
remove occupants conducting illegal activities in the building. This
bill would make the following changes to the statute:

1. Provide for a more reasonable time period in which an owner is
required to initiate a proceeding under Article 7 from the current
five days to 20 days after a notice to initiate an eviction is served;

2. Provides an owner the right to have the legal basis of the notice
served upon him requiring removal of a tenant clarified;

3. Adds tenant and community organizations to the current parties that
have standing to initiate notice requiring an owner to initiate the
removal of a person using a premises for an illegal activity and adds
these groups to the current parties that can bring a proceeding under
Article 7 to remove an occupant conducting an illegal activity where

an owner fails to act;

4. A presumptive value for criminal convictions involving controlled
substance and marijuana are added as equivalents to those that exist
for gambling and prostitution;

5. The burden of proof is set expressly as preponderance of the
evidence;

6. A blanket requirement for criminal convictions is expressly
rejected;

7. The need for a notice to cure is expressly rejected.

 REASONS FOR SUPPORT :
This long standing law has recently been utilized as a mechanism to
evict drug dealers from properties. The Bawdy House Law is a statutory
conferral of standing to parties whose lives and property are affected
by the presence of an illegal activity in their neighborhoods. The
grounds for initiating an action is similar to the basis for
initiating an action in the public nuisance law, where a person
affected by a nuisance may bring an action for abatement and damages
against the person causing the nuisance. The statutory conferral of
standing is not unique and parallels provisions in the Multiple
Dwelling Law, the Alcoholic Beverage Control Law and the State Finance
Law.

This bill updates and clarifies the Bawdy House Law to make it a more
effective tool to rid buildings of drug dealers and drug dens. This
legislation would delete archaic and outdated terms and provide more
reasonable notice and proceeding timetables. The bill would also
expand the grounds to evict and recover a premises to include the
possession of controlled substances. Community and tenant
organizations can provide effective assistance in the fight to rid
building of drug dealers and drug dens. The Bawdy House Law gives
special standing to persons located within 200 feet of an illegal
business. The bill adds to the current list of those with standing,
tenant and community organizations and enables all persons with
standing that are within 1,000 feet of a premises where illegal
activity is taking place to serve owners with a written notice of
illegal activity and requiring them to initiate a proceeding to evict.
Where owners fail to act, the bill will add these organizations to
those that already have standing to bring a proceeding to remove the
occupant conducting an illegal activity. In addition, the bill expands
the unrealistic time frame established in the Bawdy House Law to
initiate a proceeding from five to 20 days and provides owners with
the right to have the legal basis of the notice that is served upon
them by tenants or qualified organizations clarified.

The bill also codifies several important points which have been
seriously contested in recent cases commenced pursuant to the Bawdy
House Law. First, the bill provides that notices to cure and notice of
termination are not required in this type of case. Authorities have
held that these notices are reasonable only when a tenant's or
subtenant's conduct is in violation of a provision of the lease but
never when it is in violation of the law. Second, the bill expressly
identifies selling narcotics as one of the illegal businesses which
provide the grounds for an eviction. The retail and wholesale selling
of narcotics from inside a multiple dwelling is a modern phenomenon
and should be clearly identified as an illegal business. Third, this
bill sets the preponderance of evidence as the standard of proof that
the petitioner must carry. Fourth, it expressly rejects the notion
that criminal convictions are a prerequisite to the commencement of
actions of this type. Finally, the bill increases the potential amount
of the civil fine for non-compliance which is paid to a municipality
from $5,000 to $10,000.

 EFFECTIVE DATE :
Immediately.

2009-S204 (ACTIVE) - Bill Text download pdf

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

                                   204

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the  real  property  actions  and  proceedings  law,  in
  relation  to  grounds  and procedures to recover premises where use or
  occupancy is illegal

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

  Section  1.  Section  715 of the real property actions and proceedings
law, as amended by chapter 494 of the laws of  1976,  subdivision  1  as
amended  by  chapter 555 of the laws of 1978, subdivision 3 as added and
subdivisions 4 and 5 as renumbered by chapter 206 of the  laws  of  1980
and  subdivision  5  as  added  by  chapter  627 of the laws of 1978, is
amended to read as follows:
  S 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,] ANY OWNER, TENANT
OR TENANT ORGANIZATION of any premises OR ANY BLOCK  ASSOCIATION  within
[two  hundred feet from] ONE THOUSAND FEET OF other [demised real] RENT-
ED, TRESPASSED UPON OR SQUATTED UPON 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 ILLEGAL GAMBLING OR ILLEGAL
SALES OF CONTROLLED SUBSTANCES OR MARIHUANA, or for  any  OTHER  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,]  TENANT  ORGANIZATION,  COMMUNITY  ORGANIZATION, BLOCK
ASSOCIATION OR SIMILAR INCORPORATED OR UNINCORPORATED ASSOCIATION ORGAN-
IZED TO PROMOTE THE PUBLIC WELFARE WITHIN AN AREA ENCOMPASSING ONE THOU-
SAND FEET OF THE SUBJECT PREMISES or  any  duly  authorized  enforcement

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD02818-01-9

S. 204                              2

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 OR HER 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 OR HER  agent  does  not  make
such  application  within [five] TWENTY days thereafter; or, having made
it, does not in good faith diligently prosecute it, the  person,  corpo-
ration,  ASSOCIATION 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 OR HER  and  not  prosecuted  dili-
gently  and in good faith. [Proof of the ill repute of the demised prem-
ises or of the inmates thereof  or  of  those  resorting  thereto  shall
constitute presumptive evidence of the unlawful use of the demised prem-
ises required to be stated in the petition for removal.] NOTWITHSTANDING
ANY  OTHER PROVISION OF LAW TO THE CONTRARY, NO OWNER OR LANDLORD OR HIS
OR HER AGENT NEED  MAKE  SUCH  APPLICATION  UNDER  THIS  ARTICLE  UNLESS
PROVIDED  WITH  ADMISSIBLE  EVIDENCE  CONCERNING  A  TENANT, OCCUPANT OR
TRESPASSER'S ILLEGAL BUSINESS IN THE SUBJECT PREMISES. Both  the  person
in  possession  of  the property and the owner or landlord shall be made
respondents in the proceeding. THE OWNER OR LANDLORD OR HIS OR HER AGENT
MAY DEMAND WITHIN THE FIRST TEN DAYS AFTER RECEIVING THE WRITTEN  NOTICE
THAT  THE  PERSON,  CORPORATION, ASSOCIATION OR ENFORCEMENT AGENCY, THAT
SERVED IT PARTICULARIZE THE  BASIS  UPON  WHICH  THE  ACTION  IS  TO  BE
BROUGHT.  NOTWITHSTANDING  ANY OTHER PROVISIONS OF LAW UNLESS A RESPONSE
TO SAID DEMAND IS DULY RECEIVED WITHIN FIVE DAYS, AFTER SERVICE  OF  THE
DEMAND  THE  PERIOD  IN  WHICH THE OWNER OR LANDLORD OR HIS OR HER AGENT
MUST COMMENCE A PROCEEDING IS  TOLLED  UNTIL  AN  ADEQUATE  RESPONSE  IS
RECEIVED.
  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 subdi-
vision  four  of  section  four  of  the  multiple dwelling law shall be
presumptive evidence of conduct constituting use  of  the  premises  for
purposes of prostitution] TENANT OR OCCUPANT OF THE SUBJECT PREMISES HAD
WITHIN A PERIOD OF ONE YEAR, FOR ANY OF THE OFFENSES DESCRIBED IN SUBDI-
VISION  ONE OF SECTION 220.16 OR SECTION 220.31, 220.34, 220.39, 220.41,
220.43 OR 220.44 OF THE PENAL LAW, RELATING  TO  CONTROLLED  SUBSTANCES;
SECTION  220.45  OF  THE PENAL LAW ONLY AS IT RELATES TO SALE OF A HYPO-
DERMIC SYRINGE OR HYPODERMIC NEEDLE;  SECTION  221.30,  221.35,  221.40,
221.45,  221.50  OR  221.55  OF  THE  PENAL  LAW, RELATING TO MARIHUANA;
SECTION 225.05, 225.10, 225.15, 225.20  OR  225.30  OF  THE  PENAL  LAW,
RELATING TO GAMBLING; OR SECTION 230.04, 230.05, 230.06, 230.20, 230.25,
230.30,  230.32  OR  230.40  OF THE PENAL LAW, RELATING TO PROSTITUTION,
ARISING OUT OF CONDUCT ENGAGED IN INSIDE THE SUBJECT PREMISES, OR INSIDE
THE BUILDING IN WHICH THE SUBJECT PREMISES IS LOCATED SHALL BE  PRESUMP-
TIVE EVIDENCE OF THE UNLAWFUL USE OF SUCH PREMISES AND THE OWNER'S KNOW-
LEDGE  OF  THE SAME. ANY RELEVANT, ADMISSIBLE EVIDENCE MAY BE ADDUCED TO
PROVE THE UNLAWFUL USE OF THE  SUBJECT  PREMISES.  CRIMINAL  CONVICTIONS
SHALL NOT BE REQUIRED TO PROVE THE UNLAWFUL USE. PROOF OF THE ILL REPUTE
OF  THE  SUBJECT PREMISES SHALL CONSTITUTE EVIDENCE OF THE UNLAWFUL USE.

S. 204                              3

UNLAWFUL USE OF THE SUBJECT PREMISES IS ESTABLISHED BY A FAIR PREPONDER-
ANCE OF THE EVIDENCE.
  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 prem-
ises and of the owner's knowledge  of  the  same.]  NOTWITHSTANDING  THE
PROVISION  OF  ANY LEASE OR REGULATION OR LAW TO THE CONTRARY, NEITHER A
NOTICE TO CURE NOR A NOTICE OF TERMINATION  IS  A  PREREQUISITE  TO  THE
COMMENCEMENT  OF A PROCEEDING BY THE OWNER OR LANDLORD OR AGENT OR OTHER
PERSON ENTITLED TO PROCEED PURSUANT TO THIS SECTION.
  4. A court granting a petition pursuant to this section may, in  addi-
tion  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] TEN 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  multi-
ple 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. HOWEVER, ONLY RESPONDENTS WHO  HAVE  BEEN  WILLFULLY
NONCOMPLIANT SHALL BE SUBJECT TO SUCH CIVIL PENALTY. A RESPONDENT MAY BE
FOUND  WILLFULLY  NONCOMPLIANT  WHEN  HE  OR  SHE  HAS FAILED TO PROCEED
DESPITE HAVING BEEN PROVIDED WITH CONVICTION  INFORMATION  CONCERNING  A
TENANT,  OCCUPANT  OR TRESPASSER'S ILLEGAL BUSINESS IN THE SUBJECT PREM-
ISES UNLESS HE OR SHE PROVES SUBSTANTIAL MITIGATING CIRCUMSTANCES EXIST.
ANY PERSON, CORPORATION, ASSOCIATION OR ENFORCEMENT AGENCY THAT IS FOUND
TO HAVE MADE FRIVOLOUS OR UNSUBSTANTIATED  CLAIMS  WHEN  PARTICULARIZING
THE BASIS UPON WHICH THE ACTION IS TO BE BROUGHT SHALL BE LIABLE FOR ANY
COSTS,  FEES  OR  DAMAGES  INCURRED BY THE LANDLORD, OWNER OR HIS OR HER
AGENT.
  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 HERSELF or a court
and require that any books, records, documents  or  papers  relevant  or
material  to  the  inquiry  be turned over to him OR HER 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 OR SHE
shall be guilty of a class B misdemeanor.
  S 2. This act shall take effect immediately.

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Senate Bill S204

Sponsored By

Archive: Last Bill Status - In Senate Committee Housing, Construction And Community Development Committee

2009-S204 (ACTIVE) - Details

2009-S204 (ACTIVE) - Summary

2009-S204 (ACTIVE) - Sponsor Memo

2009-S204 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S204

Share this bill

Sponsored By

Carl Kruger

Archive: Last Bill Status - In Senate Committee Housing, Construction And Community Development Committee

2009-S204 (ACTIVE) - Details

2009-S204 (ACTIVE) - Summary

2009-S204 (ACTIVE) - Sponsor Memo

2009-S204 (ACTIVE) - Bill Text download pdf

Comments