§ 1309. Expedited application for judgment of foreclosure and sale for
vacant and abandoned property. 1. The plaintiff in any foreclosure
proceeding may make an application by notice of motion or order to show
cause for a judgment of foreclosure and sale on the grounds that the
subject property is vacant and abandoned. The motion or order to show
cause shall include the last known address of the borrower and the
property address. Notwithstanding subdivision (m) of rule thirty-four
hundred eight of the civil practice law and rules no such application
may be made until the defendant's time to answer the complaint in the
foreclosure proceeding shall have expired. Such application shall be
served on defendant, regardless of whether a defendant has filed an
answer or appeared in the case. Such application shall: (a) state in
bold letters, on the first page of the notice of motion or order to show
cause: (i) "The plaintiff in this lawsuit has applied for an expedited
judgment of foreclosure and sale of your property on the ground that it
is vacant and abandoned"; (ii) "Your property may be foreclosed upon and
sold without any further proceedings if you do not respond to this
motion by or on the return date, which is ___"; (iii) "You have the
right to stay in your property until a court orders you to leave"; and
(iv) "You may respond to this motion by either submitting a written
document or by appearing in court on the return date."; (b) be supported
by affidavit and other proof, including but not limited to: (i) proof of
ownership of the mortgage and the note, (ii) photographs evidencing that
the subject property is vacant and abandoned as provided for under
subdivision two of this section, and (iii) if available, utility company
records or other documentation evidencing the vacant and abandoned
status of the premises; (c) set forth, supported by documentary
evidence, the sums alleged to be due and owing upon the subject mortgage
and note, including the current principal balance and a detailed and
itemized account of each fee, each cost, and a calculation of interest
accrued; and (d) request that the court confirm the sums due and owing
upon the subject mortgage and note without appointment of a referee. The
court shall promptly send a notice to the defendant of the plaintiff's
notice of motion or order to show cause for a judgement of foreclosure
and sale on the grounds that the subject property is vacant and
abandoned. The notice shall advise the defendant that the lender is
asking the court to expedite a judgement of foreclosure and sale of his
or her property on the ground that it is vacant and abandoned and about
the time and place of the court date. The notice shall be in a form
prescribed by the courts, or, at the discretion of the courts.

2. (a) As used in this section, "vacant and abandoned residential
property" means residential real property, as defined in section
thirteen hundred five of this article, with respect to which the
plaintiff has proven, by preponderance of the evidence, that it has
conducted at least three consecutive inspections of such property, with
each inspection conducted twenty-five to thirty-five days apart and at
different times of the day, and at each inspection (i) no occupant was
present and there was no evidence of occupancy on the property to
indicate that any persons are residing there; and (ii) the residential
real property was not being maintained in a manner consistent with the
standards set forth in New York property maintenance code chapter 3
sections 301, 302 (excluding 302.2, 302.6, 302.8), 304.1, 304.3, 304.7,
304.10, 304.12, 304.13, 304.15, 304.16, 307.1 and 308.1.

(b) Residential real property will also be deemed vacant and abandoned
if:

(i) A court or other appropriate state or local governmental entity
has formally determined, following due notice to the borrower at the
property address and any other known addresses, that such residential
real property is vacant and abandoned; or

(ii) Each borrower and owner has separately issued a sworn written
statement, expressing his or her intent to vacate and abandon the
property and an inspection of the property shows no evidence of
occupancy to indicate that any persons are residing there.

(c) Evidence of lack of occupancy shall include but not be limited to
the following conditions: (i) overgrown or dead vegetation; (ii)
accumulation of newspapers, circulars, flyer or mail; (iii) past due
utility notices, disconnected utilities, or utilities not in use; (iv)
accumulation of trash, refuse or other debris; (v) absence of window
coverings such as curtains, blinds, or shutters; (vi) one or more
boarded, missing or broken windows; (vii) the property is open to casual
entry or trespass; or (viii) the property has a building or structure
that is or appears structurally unsound or has any other condition that
presents a potential hazard or danger to the safety of persons.

(d) Residential real property will not be deemed vacant and abandoned
if, on the property:

(i) There is an unoccupied building that is undergoing construction,
renovation, or rehabilitation that is proceeding diligently to
completion;

(ii) There is a building occupied on a seasonal basis, but otherwise
secure;

(iii) There is a building that is secure, but is the subject of a
probate action, action to quiet title, or other ownership dispute of
which the servicer has actual notice;

(iv) There is a building damaged by a natural disaster and one or more
owner intends to repair and reoccupy the property; or

(v) There is a building occupied by the mortgagor, a relative of the
mortgagor or a tenant lawfully in possession.

3. In connection with an application for a judgment of foreclosure and
sale on the ground that the subject property is vacant and abandoned,
the court may require the plaintiff or an agent to appear to provide
testimony in support of the application.

4. The court shall make a written finding as soon as practicable as to
whether the plaintiff has proved that the property to be foreclosed upon
pursuant to this section is vacant and abandoned pursuant to subdivision
two of this section and, if the court determines that the property is
vacant and abandoned, it shall set forth: (a) the evidence relied upon
by the court in finding that the property is vacant and abandoned; (b)
the evidence showing that the plaintiff is the owner and holder of the
subject mortgage and note, or has been delegated the authority to
institute a mortgage foreclosure action by the owner of same; and (c)
the sums due and owing upon the subject mortgage and note after a review
of the detailed and itemized account of each fee, each cost, and a
calculation of interest accrued.

5. With respect to foreclosure actions brought pursuant to this
section:

(a) A judgment of foreclosure and sale shall not be entered pursuant
to this section if the mortgagor or any other defendant has filed an
answer, appearance, other written objection that is not withdrawn, or
has otherwise demonstrated an intention to contest the foreclosure
action.

(b) A denial of a judgment of foreclosure and sale pursuant to this
section where the court does not find that the mortgaged property is
vacant and abandoned shall not be deemed to be on the merits for
purposes of any other proceeding with respect to such real property.

6. It shall be unlawful for a lender, assignee, mortgage loan
servicer, or a third party agent or other person acting on behalf of a
lender, assignee or mortgage loan servicer to enter residential real
property that is not vacant and abandoned for the purpose of forcing,
intimidating, harassing or coercing a lawful occupant of such
residential property to vacate that property in order to render the
property vacant and abandoned, or to otherwise force, intimidate,
harass, or coerce a lawful occupant of residential real property to
vacate that property so that it may be deemed vacant and abandoned,
provided however, a lender, assignee, mortgage loan servicer, or a third
party agent or other person acting on behalf of a lender, assignee or
mortgage loan servicer who peacefully enters a vacant and abandoned
property in order to render the property vacant and abandoned shall be
immune from liability when such lender, assignee, mortgage loan
servicer, third party agent or other person acting on behalf of a
lender, assignee or mortgage loan servicer is making reasonable efforts
to comply with this section.

7. The chief administrative judge of the courts shall adopt such rules
as he or she deems necessary to expeditiously implement the provisions
of this section.