Senate Bill S4526

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4526
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              March 14, 2019
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Housing, Construction  and
   Community Development
 
 AN  ACT  to  amend  the  real  property  actions and proceedings law, in
   relation to summary proceedings to recover possession of real  proper-
   ty; and to repeal certain provisions of such law relating to judgments
   in non-payment proceedings in the city of New York
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 2 of section 745 of the real  property  actions
 and  proceedings  law,  as  amended  by chapter 116 of the laws of 1997,
 subparagraph (i) of paragraph (b) as amended by chapter 601 of the  laws
 of 2007, is amended to read as follows:
   2. In the city of New York:
   (a) In a summary proceeding upon the second of two adjournments GRANT-
 ED  SOLELY  at  the  request of the respondent, or, upon the [thirtieth]
 SIXTIETH day after the first appearance of the parties in court less any
 days that the proceeding has been adjourned  upon  the  request  of  the
 petitioner, COUNTING ONLY DAYS ATTRIBUTABLE TO ADJOURNMENT REQUESTS MADE
 SOLELY  AT  THE  REQUEST  OF  THE RESPONDENT AND NOT COUNTING AN INITIAL
 ADJOURNMENT REQUESTED BY A RESPONDENT UNREPRESENTED BY COUNSEL  FOR  THE
 PURPOSE  OF SECURING COUNSEL, whichever occurs sooner, the court [shall]
 MAY, UPON CONSIDERATION OF THE EQUITIES,  direct  that  the  respondent,
 upon [an application] A MOTION ON NOTICE MADE by the petitioner, deposit
 with  the  court  [within  five  days] sums of rent or use and occupancy
 [accrued from the date the petition and notice of  petition  are  served
 upon  the  respondent,  and all sums as they become due for rent and use
 and occupancy] THAT SHALL ACCRUE SUBSEQUENT TO THE DATE OF  THE  COURT'S
 ORDER,  which  may  be established without the use of expert testimony[,
 unless]. THE COURT SHALL NOT ORDER DEPOSIT OR PAYMENT OF USE  AND  OCCU-
 PANCY  WHERE the respondent can establish[, at an immediate hearing], to
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09959-01-9

 S. 4526                             2
 
 the satisfaction of the court that respondent  has  properly  interposed
 one of the following defenses or established the following grounds:
   (i) the petitioner is not a proper party to the proceeding pursuant to
 section seven hundred twenty-one of this article; or
   (ii)  (A)  actual  eviction,  or  (B)  actual partial eviction, or (C)
 constructive eviction; and respondent has quit the premises; or
   (iii) a defense pursuant to section one hundred forty-three-b  of  the
 social services law; or
   (iv)    A  DEFENSE  BASED  UPON  THE  EXISTENCE  OF  "B"  OR "C" CLASS
 VIOLATIONS IN THE SUBJECT APARTMENT OR COMMON AREAS; OR
   (V) A COLORABLE DEFENSE OF RENT OVERCHARGE; OR
   (VI) A DEFENSE THAT THE UNIT IS IN VIOLATION OF THE BUILDING'S CERTIF-
 ICATE OF OCCUPANCY OR IS OTHERWISE ILLEGAL UNDER THE  MULTIPLE  DWELLING
 LAW OR THE NEW YORK CITY HOUSING MAINTENANCE CODE; OR
   (VII) the court lacks PERSONAL jurisdiction OVER THE RESPONDENT.
   [When  the  rental unit that is the subject of the petition is located
 in a building containing twelve or fewer units, the court shall  inquire
 of  the  respondent  as to whether there is any undisputed amount of the
 rent or use and occupancy due to the  petitioner.  Any  such  undisputed
 amount shall be paid directly to the petitioner, and any disputed amount
 shall  be  deposited  to the court by the respondent as provided in this
 subdivision.]
   Two adjournments shall NOT  include  an  adjournment  requested  by  a
 respondent  unrepresented by counsel for the purpose of securing counsel
 made on a return date of the proceeding. Such rent or use and  occupancy
 sums  shall  be  deposited  with  the clerk of the court or paid to such
 other person or entity, including the petitioner or an agent  designated
 by  the  division  of  housing and community renewal, as the court shall
 direct or shall be expended for such  emergency  repairs  as  the  court
 shall approve.
   (b)  IN  ESTABLISHING  THE  MONTHLY  AMOUNT TO BE DEPOSITED, THE COURT
 SHALL NOT EXCEED THE AMOUNT OF THE REGULATED RENT FOR THE UNIT UNDER ANY
 STATE, LOCAL OR FEDERAL REGULATORY SCHEME, OR THE AMOUNT OF THE TENANT'S
 RENT SHARE UNDER A STATE, LOCAL  OR  FEDERAL  SUBSIDY  PROGRAM,  OR  THE
 AMOUNT OF THE TENANT'S SHARE UNDER AN EXPIRED SUBSIDY, UNLESS THE TENANT
 HAS  ENTERED  INTO  AN  ENFORCEABLE  NEW AGREEMENT TO PAY THE FULL LEASE
 RENT.
   (C) (i) The court shall not require  the  respondent  to  deposit  the
 portion of rent or use and occupancy, if any, which is payable by direct
 government  housing  subsidy,  any  currently  effective  senior citizen
 increase exemption authorized pursuant to sections four  hundred  sixty-
 seven-b  and  four  hundred  sixty-seven-c of the real property tax law,
 direct payment of rent or a two-party check issued by a social  services
 district or the office of temporary and disability assistance, or rental
 assistance that is payable pursuant to court orders issued in litigation
 commenced  in nineteen hundred eighty-seven in a proceeding in which the
 amount of shelter allowance is at issue on behalf of recipients of fami-
 ly assistance. In the event the respondent or other adult member of  the
 respondent's  household  receives  public  assistance  pursuant to title
 three or title ten of article five  of  the  social  services  law,  the
 respondent  shall, when directed by the court to deposit rent and use or
 occupancy, only be required to deposit with the court the amount of  the
 shelter  allowance  portion of the public assistance grant issued by the
 office of temporary and  disability  assistance  or  a  social  services
 district. In the event the respondent receives A FIXED INCOME, INCLUDING
 BUT NOT LIMITED TO, SOCIAL SECURITY INCOME, supplemental security income

 S. 4526                             3
 
 pursuant  to  title sixteen of the federal social security act and title
 six of article five of the social services law, OR PENSION  INCOME,  the
 respondent shall [only] NOT be required to deposit [one-third] MORE THAN
 THIRTY  PERCENT  of  the  monthly [supplemental security income payment]
 PAYMENTS.
   (ii) Any sum required to be deposited with the court pursuant to  this
 subdivision  shall  be offset by payment, if any, made by the respondent
 pursuant to section two hundred thirty-five-a of the real  property  law
 or section three hundred two-c of the multiple dwelling law.
   [(c)  (i)  If  the  respondent  shall  fail to comply with the court's
 directions with respect to direct payment to the petitioner or making  a
 deposit  as  directed by the court of the full amount of the rent or use
 and occupancy required to be deposited, the court upon an application by
 the petitioner shall dismiss without prejudice the defenses and counter-
 claims interposed by the respondent and grant  judgment  for  petitioner
 unless  respondent  has interposed the defense of payment and shows that
 the amount required to be deposited has  previously  been  paid  to  the
 petitioner.
   (ii)]  (D)  (I)  In  the  event  that  the respondent [makes a deposit
 required by this subdivision but] fails to deposit  with  the  court  or
 pay, as the case may be, upon the due date, all rent or use and occupan-
 cy which may become due [up to the time of the entry of judgment] SUBSE-
 QUENT  TO  THE  ISSUANCE OF THE COURT'S DEPOSIT ORDER, the court upon an
 application of the petitioner [shall] MAY order an  immediate  trial  of
 the issues raised in the respondent's answer. An "immediate trial" shall
 mean  that no further adjournments of the proceeding [without petitioner
 consent] UPON RESPONDENT'S SOLE REQUEST shall be granted, the case shall
 be assigned by the administrative judge to a trial ready part  and  such
 trial  shall  commence  AS  SOON  AS PRACTICABLE and continue day to day
 until completed. [There shall be no stay granted of such  trial  without
 an  order to respondent to pay rent or use and occupancy due pursuant to
 this subdivision and rent or use and occupancy as it becomes due.
   (iii)] (II) The court [shall not] MAY extend  any  time  provided  for
 such  deposit  under  this subdivision [without the consent of the peti-
 tioner] FOR GOOD CAUSE SHOWN.
   [(iv)] (III) Upon the entry of the final judgment  in  the  proceeding
 such deposits shall be credited against any judgment amount awarded and,
 without further order of the court, be paid in accordance with the judg-
 ment.
   [(v) The provisions of this paragraph requiring the deposit of rent or
 use and occupancy as it becomes due shall not be waived by the court.
   (d)]  (E)  The court may dismiss any summary proceeding without preju-
 dice and with costs to the respondent by reason  of  excessive  adjourn-
 ments requested by the petitioner.
   [(e)  The  provisions of this subdivision shall not be construed as to
 deprive a respondent of a trial of any defenses or  counterclaims  in  a
 separate  action if such defenses or counterclaims are dismissed without
 prejudice.]
   (F) UNDER NO CIRCUMSTANCES SHALL THE RESPONDENT'S FAILURE OR INABILITY
 TO PAY USE AND OCCUPANCY AS ORDERED BY THE COURT CONSTITUTE A  BASIS  TO
 DISMISS ANY OF THE RESPONDENT'S DEFENSES OR COUNTERCLAIMS, WITH OR WITH-
 OUT PREJUDICE TO THEIR ASSERTION IN ANOTHER FORUM.
   § 2. Section 747-a of the real property actions and proceedings law is
 REPEALED.
   § 3. This act shall take effect immediately.