Revises proceedings to recover possession of premises located in a multiple dwelling; requires premises to be registered with the local agency responsible for code enforcement; petition shall be stated in plain language and include notice of the rights of the respondent and a statement of any outstanding code violations on the premises and whether rent payments from a public assistance office is being withheld therefor; provides civil penalties for willful misstatements on such petition.
STATE OF NEW YORK
________________________________________________________________________
641
2019-2020 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2019
___________
Introduced by M. of A. L. ROSENTHAL -- read once and referred to the
Committee on Housing
AN ACT to amend the real property actions and proceedings law, in
relation to proceedings to recover possession
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of section 711 of the real property
2 actions and proceedings law, as amended by chapter 739 of the laws of
3 1982, is amended to read as follows:
4 [A] No tenant in a residential dwelling shall be removed from
5 possession except in a special proceeding or through other judicial
6 process. For the purposes of this article, a tenant shall include an
7 occupant of one or more rooms in a rooming house or a resident, not
8 including a transient occupant, of one or more rooms in a hotel who has
9 been in possession for thirty consecutive days or longer[; he shall not
10 be removed from possession except in a special proceeding]. A special
11 proceeding may be maintained under this article upon the following
12 grounds:
13 § 2. Subdivision 1 of section 721 of the real property actions and
14 proceedings law, as added by chapter 312 of the laws of 1962, is amended
15 to read as follows:
16 1. The landlord or lessor, provided, however, that no person may
17 institute a proceeding pursuant to this article with respect to premises
18 located in a multiple dwelling until such time as the owner of the
19 multiple dwelling has registered properly with the agency responsible
20 for code enforcement, in accordance with the provisions of section three
21 hundred of the multiple residence law or section three hundred of the
22 multiple dwelling law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03989-01-9
A. 641 2
1 § 3. Subdivision 1 of section 731 of the real property actions and
2 proceedings law, as amended by chapter 563 of the laws of 1994, is
3 amended to read as follows:
4 1. The special proceeding prescribed by this article shall be
5 commenced by petition and a notice of petition prepared in accordance
6 with rules approved by the appellate division with jurisdiction over the
7 proceedings. Such rules shall provide for the use of language that is
8 designed to be understood by the respondent in the proceeding. The peti-
9 tion shall include such other notice of the rights of the respondent as
10 may be deemed appropriate, including a statement that a form answer is
11 available from the clerk of the court. A notice of petition may be
12 issued only by an attorney, judge or the clerk of the court; it may not
13 be issued by a party prosecuting the proceeding in person.
14 § 4. Section 741 of the real property actions and proceedings law, as
15 added by chapter 312 of the laws of 1962, the opening paragraph as
16 amended by chapter 583 of the laws of 1979 and subdivision 5 as amended
17 by chapter 302 of the laws of 1976, is amended to read as follows:
18 § 741. Contents of petition. The petition shall be verified by the
19 person authorized by section seven hundred twenty-one of this article to
20 maintain the proceeding; or by a legal representative, attorney or agent
21 of such person pursuant to subdivision (d) of section [thirty hundred]
22 three thousand twenty of the civil practice law and rules. An attorney
23 of such person may verify the petition on information and belief
24 notwithstanding the fact that such person is in the county where the
25 attorney has his office. Every petition shall:
26 1. State the interest of the petitioner in the premises from which
27 removal is sought.
28 2. State the respondent's interest in the premises and his relation-
29 ship to petitioner with regard thereto.
30 3. Describe the premises from which removal is sought.
31 4. State whether there are any violations of any state or local hous-
32 ing codes which remain outstanding on the premises or common areas. In
33 cities with a population of one million or more, or in any municipality
34 in which housing code violations are classified by degree of threat to
35 health and safety, the petition shall itemize any such violations which
36 have been identified by the applicable code enforcement agency in its
37 notice of violation as being "hazardous", "immediately hazardous" or
38 which have been otherwise categorized as constituting a serious, or
39 imminent, threat to health and safety or requiring immediate repair.
40 5. State whether the petitioner has been notified by the local depart-
41 ment of social services that payment for rent is being withheld pursuant
42 to section one hundred forty-three-b of the social services law for any
43 portion of the premises.
44 6. With respect to premises subsidized directly or indirectly under a
45 state or federal program which requires that conditions be met in
46 connection with lease termination or eviction, state the name of the
47 program, the name of the agency charged with supervision and whether the
48 petitioner has complied with all applicable rules, regulations and
49 administrative hearing requirements and has served all notices required
50 in connection with lease termination or eviction from that public or
51 subsidized housing program.
52 7. State the facts upon which the special proceeding is based.
53 [5.] 8. State the relief sought. The relief may include a judgment
54 for rent due, and for a period of occupancy during which no rent is due,
55 for the fair value of use and occupancy of the premises if the notice of
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1 petition contains a notice that a demand for such a judgment has been
2 made.
3 Any willful material misstatement or omission by the petitioner with
4 respect to the requirements of this section shall subject the petitioner
5 to a civil penalty, not to exceed one thousand dollars, to be assessed
6 in the eviction proceeding or in a subsequent plenary action. The peti-
7 tioner may request leave of the court to amend the petition for the
8 purpose of correcting material misstatements or curing omissions. In the
9 event leave to amend is granted, the respondent shall be provided an
10 adjournment to respond of not less than ten days from the date of
11 service of the amended petition. A petitioner shall be deemed to have
12 made a material misstatement or omission with respect to the require-
13 ments of subdivision four of this section upon submission to the court
14 of certified records, or otherwise properly authenticated records, of
15 the local agency or agencies charged with code compliance that
16 violations of applicable codes, other than tenant caused or housekeeping
17 as determined by the court, were outstanding at the time of the verifi-
18 cation of the petition which were not described therein. A material
19 misstatement shall be deemed willful unless the petitioner can establish
20 by a preponderance of the evidence that such misstatement was not will-
21 ful. In addition to the foregoing, in the event that an eviction warrant
22 is executed in a proceeding in which a willful material misstatement is
23 made, the respondent shall be entitled to damages not exceeding three
24 times the costs incurred as a result of the eviction unless the peti-
25 tioner can establish that the eviction would have been justified regard-
26 less of the misstatement.
27 § 5. Section 743 of the real property actions and proceedings law, as
28 amended by chapter 644 of the laws of 2003, is amended to read as
29 follows:
30 § 743. Answer. Except as provided in section [732] seven hundred thir-
31 ty-two of this article, relating to a proceeding for non-payment of
32 rent, at the time when the petition is to be heard the respondent, or
33 any person in possession or claiming possession of the premises, may
34 answer, orally or in writing. If the answer is oral the substance there-
35 of shall be recorded by the clerk or, if a particular court has no
36 clerk, by the presiding judge or justice of such court, and maintained
37 in the case record. A form answer, in a form approved by the appellate
38 division with jurisdiction over the proceeding, shall be made available
39 to the respondent by the clerk of the court. The form answer shall
40 include possible defenses to the proceeding, including but not limited
41 to defenses established by sections two hundred twenty-three and two
42 hundred thirty-five-b of the real property law, section one hundred
43 forty-three-b of the social services law and section three hundred
44 five-a of the multiple residence law. If the notice of petition was
45 served at least eight days before the time at which it was noticed to be
46 heard and it so demands, the answer shall be made at least three days
47 before the time the petition is noticed to be heard and, if in writing,
48 it shall be served within such time; whereupon any reply shall be served
49 at least one day before such time. The answer may contain any legal or
50 equitable defense, or counterclaim. The court may render affirmative
51 judgment for the amount found due on the counterclaim.
52 § 6. Subdivision 1 of section 745 of the real property actions and
53 proceedings law, as amended by chapter 403 of the laws of 1983, is
54 amended to read as follows:
55 1. Where triable issues of fact are raised, they shall be tried by
56 the court unless, at the time the petition is noticed to be heard, a
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1 party demands a trial by jury, in which case trial shall be by jury.
2 When the petition indicates pursuant to subdivision four of section
3 seven hundred forty-one of this article, that there are outstanding code
4 violations, the court shall inquire regarding the duration and severity
5 of the outstanding violations and may stay the proceeding pending
6 removal of the violations in accordance with section seven hundred
7 fifty-five of this article, or make other disposition of the proceeding
8 including granting a total or partial abatement of rent, or dismissal of
9 the proceeding, as appropriate. At the time when issue is joined the
10 court, in its discretion at the request of either party and upon proof
11 to its satisfaction by affidavit or orally that an adjournment is neces-
12 sary to enable the applicant to procure his necessary witnesses, or by
13 consent of all the parties who appear, may adjourn the trial of the
14 issue, but not more than ten days, except by consent of all parties.
15 § 7. Section 749 of the real property actions and proceedings law is
16 amended by adding two new subdivisions 4 and 5 to read as follows:
17 4. The notice described in subdivision two of this section shall
18 include a statement advising the respondent that assistance to prevent
19 the eviction or otherwise to prevent the respondent from becoming home-
20 less may be available from the local department of social services and
21 shall include the phone number provided to the enforcement officer by
22 any private or public agency providing such assistance at the request of
23 such agency. Referral to legal aid, legal services or other legal
24 assistance offices shall also be included on such notices at the request
25 of such offices. In a proceeding based upon non-payment, such notice
26 shall also advise the respondent of the rent determined due together
27 with taxes, assessments, interest, penalties and costs in accordance
28 with the provision of subdivision one of section seven hundred fifty-one
29 of this article, and shall advise the respondent of the amount required
30 and procedure for payment.
31 5. Upon written or oral notification to the officer by an authorized
32 representative of the local department of social services that an appli-
33 cation for assistance to prevent eviction is pending on behalf of the
34 respondent household, the officer shall refrain from execution of the
35 warrant until such time as that officer is advised by the social
36 services official of the determination of such application, provided,
37 however, that the social services district shall guarantee payment to
38 the petitioner for any additional rent accruing during this period to be
39 calculated on a pro-rata basis for the number of days delay occasioned
40 by the operation of this provision.
41 § 8. The opening paragraph and subdivision 1 of section 751 of the
42 real property actions and proceedings law, as added by chapter 312 of
43 the laws of 1962, are amended to read as follows:
44 The respondent may, at any time before a warrant is [issued]
45 executed, stay the [issuing] execution thereof and also stay an
46 execution to collect the costs, as follows:
47 1. Where the lessee or tenant holds over after a default in the
48 payment of rent, or of taxes or assessments, he may effect a stay by
49 depositing the amount of the rent due or of such taxes or assessments,
50 and interest and penalty, if any thereon due, and the costs of the
51 special proceeding, with the clerk of the court, or where the office of
52 clerk is not provided for, with the court, who shall thereupon, upon
53 demand, pay the amount deposited to the petitioner or his duly author-
54 ized agent; or by delivering to the court or clerk [his] a written
55 assurance by an authorized representative of the local department of
56 social services or an undertaking to the petitioner in such sum as the
A. 641 5
1 court approves to the effect that [he will pay] the rent[, or] due will
2 be paid together with such taxes or assessments, and interest and penal-
3 ty and costs within ten days, at the expiration of which time a warrant
4 may issue, unless [he] the respondent produces to the court satisfactory
5 evidence of the payment.
6 § 9. This act shall take effect on the first of February next succeed-
7 ing the date on which it shall have become a law and shall apply to
8 actions and proceedings commenced on or after such effective date,
9 provided, however, that effective immediately, all actions and proce-
10 dures with respect to the proposed adoption, amendment, suspension or
11 repeal of any rule or regulation necessary to the timely implementation
12 of this act on its effective date are directed and authorized to be made
13 and completed on or before such effective date.
