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This entry was published on 2019-07-26
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Real Property Actions & Proceedings (RPA) CHAPTER 81, ARTICLE 7
§ 745. Trial. 1. Where triable issues of fact are raised, they shall
be tried by the court unless, at the time the petition is noticed to be
heard, a party demands a trial by jury, in which case trial shall be by
jury. At the time when issue is joined the court, at the request of
either party shall adjourn the trial of the issue, not less than
fourteen days, except by consent of all parties. A party's second or
subsequent request for adjournment shall be granted in the court's sole

2. In the city of New York:

(a) In a summary proceeding upon the second of two adjournments
granted solely at the request of the respondent, or, upon the 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 may,
upon consideration of the equities, direct that the respondent, upon a
motion on notice made by the petitioner, deposit with the court sums of
rent or 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. The court shall not order deposit or payment of use and
occupancy where the respondent can establish, to 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 hazardous or immediately
hazardous violations of the housing maintenance code 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
certificate 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.

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

(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 family 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 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 not be required to
deposit more than thirty percent of the monthly 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.

(d) (i) In the event that the respondent fails to deposit with the
court or pay, as the case may be, upon the due date, all rent or use and
occupancy which may become due subsequent to the issuance of the court's
deposit order, the court upon an application of the petitioner 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 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.

(ii) The court may extend any time provided for such deposit under
this subdivision for good cause shown.

(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

(e) The court may dismiss any summary proceeding without prejudice and
with costs to the respondent by reason of excessive adjournments
requested by the petitioner.

(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
without prejudice to their assertion in another forum.