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NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
(RPAPL)
ARTICLE 7
SUMMARY PROCEEDING TO RECOVER POSSESSION OF REAL PROPERTY
Section 701. Jurisdiction; courts; venue.
711. Grounds where landlord-tenant
relationship exists.
713. Grounds where no landlord-tenant
relationship exists.
713a. Special proceeding for termination
of adult home and residence for adults
admission agreements.
715. Grounds and procedure where use or
occupancy is illegal.
721. Person who may maintain proceeding.
731. Commencement; notice of petition.
732. Special provisions applicable in non-
payment proceeding if the rules so provide.
733. Time of service; order to show cause.
734. Notice of petition; service on the
Westchester county department of social
services.
735. Manner of service; filing; when service
complete.
741. Contents of petition.
743. Answer.
745. Trial.
747. Judgment.
749. Warrant.
751. Stay upon paying rent or giving
undertaking; discretionary stay outside city
of New York.
753. Stay where tenant holds over in premises
occupied for dwelling purposes in city of New
York.
755. Stay of proceeding or action for rent
upon failure to make repairs.
756. Stay of summary proceedings or actions
for rent under certain conditions.
761. Redemption by lessee.
763. Redemption by creditor of lessee.
765. Effect of redemption upon lease.
767. Order of redemption; liability of
persons redeeming.
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Sec. 701. JURISDICTION; COURTS; VENUE.
1. A special proceeding to recover real property may be
maintained in a county court, the court of a police justice
of the village, a justice court, a court of civil
jurisdiction in a city, or a district court.
2. The place of trial of the special proceeding shall be within
the jurisdictional area of the court in which the real
property or a portion thereof is situated; except that where
the property is located in an incorporated village which
includes parts of two or more towns the proceeding may be
tried by a justice of the peace of any such town who keeps
an office in the village.
Sec. 711. GROUNDS WHERE LANDLORD-TENANT RELATIONSHIP EXISTS.
A tenant shall include an occupant of one or more rooms in a
rooming house or a resident, not including a transient occupant,
of one or more rooms in a hotel who has been in possession for
thirty consecutive days or longer; he shall not be removed from
possession except in a special proceeding. A special proceeding
may be maintained under this article upon the following grounds:
1. The tenant continues in possession of any portion of the
premises after the expiration of his term, without the
permission of the landlord or, in a case where a new lessee
is entitled to possession, without the permission of the new
lessee. Acceptance of rent after commencement of the special
proceeding upon this ground shall not terminate such
proceeding nor effect any award of possession to the
landlord or to the new lessee, as the case may be. A
proceeding seeking to recover possession of real property by
reason of the termination of the term fixed in the lease
pursuant to a provision contained therein giving the
landlord the right to terminate the time fixed for occupancy
under such agreement if he deem the tenant objectionable,
shall not be maintainable unless the landlord shall by
competent evidence establish to the satisfaction of the
court that the tenant is objectionable.
2. The tenant has defaulted in the payment of rent, pursuant to
the agreement under which the premises are held, and a
demand of the rent has been made, or at least three days'
notice in writing requiring, in the alternative, the payment
of the rent, or the possession of the premises, has been
served upon him as prescribed in section 735. The landlord
may waive his right to proceed upon this ground only by an
express consent in writing to permit the tenant to continue
in possession, which consent shall be revocable at will, in
which event the landlord shall be deemed to have waived his
right to summary dispossess for nonpayment of rent accruing
during the time said consent remains unrevoked. Any person
succeeding to the landlord's interest in the premises may
proceed under this subdivision for rent due his predecessor
in interest if he has a right thereto. Where a tenant dies
during the term of the lease and rent due has not been paid
and no representative or person has taken possession of the
premises and no administrator or executor has been
appointed, the proceeding may be commenced after three
months from the date of death of the tenant by joining the
surviving spouse or if there is none, then one of the
surviving issue or if there is none, then any one of the
distributees.
3. The tenant, in a city defaults in the payment, for sixty
days after the same shall be payable, of any taxes or
assessments levied on the premises which he has agreed in
writing to pay pursuant to the agreement under which the
premises are held, and a demand for payment has been made,
or at least three days' notice in writing, requiring in the
alternative the payment thereof and of any interest and
penalty thereon, or the possession of the premises, has been
served upon him, as prescribed in section 735. An acceptance
of any rent shall not be construed as a waiver of the
agreement to pay taxes or assessments.
4. The tenant, under a lease for a term of three years or less,
has during the term taken the benefit of an insolvency
statute or has been adjudicated a bankrupt.
5. The premises, or any part thereof, are used or occupied as a
bawdy-house, or house or place of assignation for lewd
persons, or for purposes of prostitution, or for any illegal
trade or manufacture, or other illegal business.
6. The tenant, in a city having a population of one million or
more, removes the batteries or otherwise disconnects or
makes inoperable an installed smoke or fire detector which
the tenant has not requested be moved from its location so
as not to interfere with the reasonable use of kitchen
facilities provided that the court, upon complaint thereof,
has previously issued an order of violation of the
provisions heretofore stated and, subsequent to the
thirtieth day after service of such order upon the tenant,
an official inspection report by the appropriate department
of housing preservation and development is presented, in
writing, indicating non-compliance herewith; provided
further, that the tenant shall have the additional ten day
period to cure such violation in accordance with the
provisions of subdivision four of section seven hundred
fifty-three of this chapter.
Sec. 713. GROUNDS WHERE NO LANDLORD-TENANT RELATIONSHIP EXISTS.
A special proceeding may be maintained under this article after a
ten-day notice to quit has been served upon the respondent in the
manner prescribed in section 735, upon the following grounds:
1. The property has been sold by virtue of an execution against
him or a person under whom he claims and a title under the
sale has been perfected.
2. He occupies or holds the property under an agreement with
the owner to occupy and cultivate it upon shares or for a
share of the crops and the time fixed in the agreement for
his occupancy has expired.
3. He or the person to whom he has succeeded has intruded into
or squatted upon the property without the permission of the
person entitled to possession and the occupancy has
continued without permission or permission has been revoked
and notice of the revocation given to the person to be
removed.
4. The property has been sold for unpaid taxes and a tax deed
has been executed and delivered to the purchaser and he or
any subsequent grantee, distributee or devisee claiming
title through such purchaser has complied with all
provisions of law precedent to the right to possession and
the time of redemption by the former owner or occupant has
expired.
5. The property has been sold in foreclosure and either the
deed delivered pursuant to such sale, or a copy of such
deed, certified as provided in the civil practice law and
rules, has been exhibited to him.
6. He is the tenant of a life tenant of the property, holding
over and continuing in possession of the property after the
termination of the estate of such life tenant without the
permission of the person entitled to possession of the
property upon termination of the life estate.
7. He is a licensee of the person entitled to possession of the
property at the time of the license, and (a) his license has
expired, or (b) his license has been revoked by the
licensor, or (c) the licensor is no longer entitled to
possession of the property; provided, however, that a
mortgagee or vendee in possession shall not be deemed to be
a licensee within the meaning of this subdivision.
8. The owner of real property, being in possession of all or a
part thereof, and having voluntarily conveyed title to the
same to a purchaser for value, remains in possession without
permission of the purchaser.
9. A vendee under a contract of sale, the performance of which
is to be completed within ninety days after its execution,
being in possession of all or a part thereof, and having
defaulted in the performance of the terms of the contract of
sale, remains in possession without permission of the
vendor.
10. The person in possession has entered the property or remains
in possession by force or unlawful means and he or his
predecessor in interest was not in quiet possession for
three years before the time of the forcible or unlawful
entry or detainer and the petitioner was peaceably in actual
possession at the time of the forcible or unlawful entry or
in constructive possession at the time of the forcible or
unlawful detainer; no notice to quit shall be required in
order to maintain a proceeding under this subdivision.
11. The person in possession entered into possession as an
incident to employment by petitioner, and the time agreed
upon for such possession has expired or, if no such time was
agreed upon, the employment has been terminated; no notice
to quit shall be required in order to maintain the
proceeding under this subdivision.
Sec. 713a. SPECIAL PROCEEDING FOR TERMINATION OF ADULT HOME AND
RESIDENCE FOR ADULTS ADMISSION AGREEMENTS.
A special proceeding to terminate the admission agreement of a
resident of an adult home or residence for adults and discharge a
resident therefrom may be maintained in a court of competent
jurisdiction pursuant to the provisions of section four hundred
sixty-one-h of the social services law and nothing contained in
such section shall be construed to create a relationship of
landlord and tenant between the operator of an adult home or
residence for adults and a resident thereof.
Sec. 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,
of any premises within two hundred feet from other demised
real 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 for any 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, or any duly authorized enforcement 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 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 agent
does not make such application within five days thereafter;
or, having made it, does not in good faith diligently
prosecute it, the person, corporation 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 and not
prosecuted diligently and in good faith. Proof of the ill
repute of the demised premises or of the inmates thereof or
of those resorting thereto shall constitute presumptive
evidence of the unlawful use of the demised premises
required to be stated in the petition for removal. Both the
person in possession of the property and the owner or
landlord shall be made respondents in the proceeding.
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 subdivision four of
section four of the multiple dwelling law shall be
presumptive evidence of conduct constituting use of the
premises for purposes of prostitution.
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
premises and of the owner's knowledge of the same.
4. A court granting a petition pursuant to this section may, in
addition 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 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 multiple
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.
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 a court and require that any
books, records, documents or papers relevant or material to
the inquiry be turned over to him 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 shall be guilty of a class B misdemeanor.
Sec. 721. PERSON WHO MAY MAINTAIN PROCEEDING. THE PROCEEDING MAY
BE BROUGHT BY:
1. The landlord or lessor.
2. The reversioner or remainderman next entitled to possession
of the property upon the termination of the estate of a life
tenant, where a tenant of such life tenant holds over.
3. The purchaser upon the execution or foreclosure sale, or the
purchaser on a tax sale to whom a deed has been executed and
delivered or any subsequent grantee, distributee or devisee
claiming title through such purchaser.
4. The person forcibly put out or kept out.
5. The person with whom, as owner, the agreement was made, or
the owner of the property occupied under an agreement to
cultivate the property upon shares or for a share of the
crops.
6. The person lawfully entitled to the possession of property
intruded into or squatted upon.
7. The person entitled to possession of the property occupied
by a licensee who may be dispossessed.
8. The person, corporation or law enforcement agency authorized
by this article to proceed to remove persons using or
occupying premises for illegal purposes.
9. The receiver of a landlord, purchaser or other person so
entitled to apply, when authorized by the court.
10. The lessee of the premises, entitled to possession.
11. Not-for-profit corporations, and tenant associations
authorized in writing by the commissioner of the department
of the city of New York charged with enforcement of the
housing maintenance code of such city to manage residential
real property owned by such city.
Sec. 731. COMMENCEMENT; NOTICE OF PETITION.
1. The special proceeding prescribed by this article shall be
commenced by petition and a notice of petition. A notice of
petition may be issued only by an attorney, judge or the
clerk of the court; it may not be issued by a party
prosecuting the proceeding in person.
2. Except as provided in section 732, relating to a proceeding
for non-payment of rent, the notice of petition shall
specify the time and place of the hearing on the petition
and state that if respondent shall fail at such time to
interpose and establish any defense that he may have, he may
be precluded from asserting such defense or the claim on
which it is based in any other proceeding or action.
Sec. 732. SPECIAL PROVISIONS APPLICABLE IN NON-PAYMENT PROCEEDING
IF THE RULES SO PROVIDE.
If the appropriate appellate division shall so provide in the
rules of a particular court, this section shall be applicable in
such court in a proceeding brought on the ground that the
respondent has defaulted in the payment of rent; in such event,
all other provisions of this article shall remain applicable in
such proceeding, except to the extent inconsistent with the
provisions of this section.
1. The notice of petition shall be returnable before the clerk,
and shall be made returnable within five days after its
service.
2. If the respondent answers, the clerk shall fix a date for
trial or hearing not less than three nor more than eight
days after joinder of issue, and shall immediately notify by
mail the parties or their attorneys of such date. If the
determination be for the petitioner, the issuance of a
warrant shall not be stayed for more than five days from
such determination.
3. If the respondent fails to answer within five days from the
date of service, as shown by the affidavit or certificate of
service of the notice of petition and petition, the judge
shall render judgment in favor of the petitioner and may
stay the issuance of the warrant for a period of not to
exceed ten days from the date of service.
4. The notice of petition shall advise the respondent of the
requirements of subdivisions 1, 2 and 3, above.
Sec. 733. TIME OF SERVICE; ORDER TO SHOW CAUSE.
1. Except as provided in section 732, relating to a proceeding
for non-payment of rent, the notice of petition and petition
shall be served at least five and not more than twelve days
before the time at which the petition is noticed to be
heard.
2. The court may grant an order to show cause to be served in
lieu of a notice of petition. If the special proceeding is
based upon the ground specified in subdivision 1 of section
711, and the order to show cause is sought on the day of the
expiration of the lease or the next day thereafter, it may
be served at a time specified therein which shall be at
least two hours before the hour at which the petition is to
be heard.
Sec. 734. NOTICE OF PETITION; SERVICE ON THE WESTCHESTER COUNTY
DEPARTMENT OF SOCIAL SERVICES.
In the county of Westchester, if the local legislative body has,
by local law, opted to require such notice, service of a copy of
the notice of petition and petition in any proceeding commenced
against a residential tenant in accordance with the provisions of
this article shall be served upon the county commissioner of
social services. Such service shall be made by certified mail,
return receipt requested, directed to an address set forth in the
local law, or pursuant to the provisions of the civil practice
law and rules. Such service shall be made at least five days
before the return date set in the notice of petition. Proof of
such service shall be filed with the court. Failure to serve the
commissioner shall not be a jurisdictional defect, and shall not
be a defense to a proceeding brought pursuant to the provisions
of this article.
Sec. 735. MANNER OF SERVICE; FILING; WHEN SERVICE COMPLETE.
1. Service of the notice of petition and petition shall be made
by personally delivering them to the respondent; or by
delivering to and leaving personally with a person of
suitable age and discretion who resides or is employed at
the property sought to be recovered, a copy of the notice of
petition and petition, if upon reasonable application
admittance can be obtained and such person found who will
receive it; or if admittance cannot be obtained and such
person found, by affixing a copy of the notice and petition
upon a conspicuous part of the property sought to be
recovered or placing a copy under the entrance door of such
premises; and in addition, within one day after such
delivering to such suitable person or such affixing or
placement, by mailing to the respondent both by registered
or certified mail and by regular first class mail,
(a) if a natural person, as follows: at the property sought
to be recovered, and if such property is not the place
of residence of such person and if the petitioner shall
have written information of the residence address of
such person, at the last residence address as to which
the petitioner has such information, or if the
petitioner shall have no such information, but shall
have written information of the place of business or
employment of such person, to the last business or
employment address as to which the petitioner has such
information; and
(b) if a corporation, joint-stock or other unincorporated
association, as follows: at the property sought to be
recovered, and if the principal office or principal
place of business of such corporation, joint stock or
other unincorporated association is not located on the
property sought to be recovered, and if the petitioner
shall have written information of the principal office
or principal place of business within the state, at the
last place as to which petitioner has such information,
or if the petitioner shall have no such information but
shall have written information of any office or place
of business within the state, to any such place as to
which the petitioner has such information. Allegations
as to such information as may affect the mailing
address shall be set forth either in the petition, or
in a separate affidavit and filed as part of the proof
of service.
2. The notice of petition, or order to show cause, and petition
together with proof of service thereof shall be filed with
the court or clerk thereof within three days after;
(a) personal delivery to respondent, when service has been
made by that means, and such service shall be complete
immediately upon such personal delivery; or
(b) mailing to respondent, when service is made by the
alternatives above provided, and such service shall be
complete upon the filing of proof of service.
Sec. 741. CONTENTS OF PETITION.
The petition shall be verified by the person authorized by
section seven hundred twenty-one to maintain the proceeding; or
by a legal representative, attorney or agent of such person
pursuant to subdivision (d) of section thirty hundred twenty of
the civil practice law and rules. An attorney of such person may
verify the petition on information and belief notwithstanding the
fact that such person is in the county where the attorney has his
office. Every petition shall:
1. State the interest of the petitioner in the premises from
which removal is sought.
2. State the respondent's interest in the premises and his
relationship to petitioner with regard thereto.
3. Describe the premises from which removal is sought.
4. State the facts upon which the special proceeding is based.
5. State the relief sought. The relief may include a judgment
for rent due, and for a period of occupancy during which no
rent is due, for the fair value of use and occupancy of the
premises if the notice of petition contains a notice that a
demand for such a judgment has been made.
Sec. 743. ANSWER.
Except as provided in section 732, relating to a proceeding for
non-payment of rent, at the time when the petition is to be heard
the respondent, or any person in possession or claiming
possession of the premises, may answer, orally or in writing. If
the answer is oral the substance thereof shall be indorsed upon
the petition. If the notice of petition was served at least eight
days before the time at which it was noticed to be heard and it
so demands, the answer shall be made at least three days before
the time the petition is noticed to be heard and, if in writing,
it shall be served within such time; whereupon any reply shall be
served at least one day before such time. The answer may contain
any legal or equitable defense, or counterclaim. The court may
render affirmative judgment for the amount found due on the
counterclaim.
Sec. 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, in its discretion at the request of either party and
upon proof to its satisfaction by affidavit or orally that
an adjournment is necessary to enable the applicant to
procure his necessary witnesses, or by consent of all the
parties who appear, may adjourn the trial of the issue, but
not more than ten days, except by consent of all parties.
2. In the city of New York:
(a) In a summary proceeding upon the second request by the
tenant for an adjournment, the court shall direct that
the tenant post all sums as they become due for future
rent and use and occupancy, which may be established
without the use of expert testimony, unless waived by
the court for good cause shown. Two adjournments shall
not include an adjournment requested by a tenant
unrepresented by counsel for the purpose of securing
counsel made on the initial return date of the
proceeding. Such future rent and use and occupancy sums
shall be deposited with the clerk of the court or paid
to such other person or entity, including the
petitioner, as the court shall direct or shall be
expended for such emergency repairs as the court shall
approve.
(b) In any adjournment of a summary proceeding, other than
on consent or at the request of the petitioner, the
court shall at the petitioner's request state on the
record why for good cause shown it is not directing the
tenant to pay or post all sums demanded pursuant to a
lease or rental agreement in the proceeding as rent and
use and occupancy.
(c) The provisions of this subdivision shall not apply if
the housing accommodation in question or the public
areas pertaining thereto are charged with immediately
hazardous violations of record as defined by the New
York city housing maintenance code.
(d) The court may dismiss any summary proceeding without
prejudice and with costs to the respondent by reason of
excessive adjournments requested by the petitioner.
(e) The provisions of this subdivision shall not be
construed as to deprive a tenant of a trial of any
summary proceeding.
Sec. 747. JUDGMENT.
1. The court shall direct that a final judgment be entered
determining the rights of the parties. The judgment shall
award to the successful party the costs of the special
proceeding.
2. The judgment shall not bar an action to recover the
possession of real property. The judgment shall not bar an
action, proceeding or counterclaim, commenced or interposed
within sixty days of entry of the judgment, for affirmative
equitable relief which was not sought by counterclaim in the
proceeding because of the limited jurisdiction of the court.
3. If the proceeding is founded upon an allegation of forcible
entry or forcible holding out the court may award to the
successful party a fixed sum as costs, not exceeding fifty
dollars, in addition to his disbursements.
4. The judgment, including such money as it may award for rent
or otherwise, may be docketed in such books as the court
maintains for recording the steps in a summary proceeding;
unless a rule of the court, or the court by order in a given
case, otherwise provides, such judgment need not be recorded
or docketed in the books, if separately maintained, in which
are docketed money judgments in an action.
Sec. 749. WARRANT.
1. Upon rendering a final judgment for petitioner, the court
shall issue a warrant directed to the sheriff of the county
or to any constable or marshal of the city in which the
property, or a portion thereof, is situated, or, if it is
not situated in a city, to any constable of any town in the
county, describing the property, and commanding the officer
to remove all persons, and, except where the case is within
section 715, to put the petitioner into full possession.
2. The officer to whom the warrant is directed and delivered
shall give at least seventy-two hours notice, in writing and
in the manner prescribed in this article for the service of
a notice of petition, to the person or persons to be evicted
or dispossessed and shall execute the warrant between the
hours of sunrise and sunset.
3. The issuing of a warrant for the removal of a tenant cancels
the agreement under which the person removed held the
premises, and annuls the relation of landlord and tenant,
but nothing contained herein shall deprive the court of the
power to vacate such warrant for good cause shown prior to
the execution thereof. Petitioner may recover by action any
sum of money which was payable at the time when the special
proceeding was commenced and the reasonable value of the use
and occupation to the time when the warrant was issued, for
any period of time with respect to which the agreement does
not make any provision for payment of rent.
Sec. 751. STAY UPON PAYING RENT OR GIVING UNDERTAKING;
DISCRETIONARY STAY OUTSIDE CITY OF NEW YORK.
The respondent may, at any time before a warrant is issued, stay
the issuing thereof and also stay an execution to collect the
costs, as follows:
1. Where the lessee or tenant holds over after a default in the
payment of rent, or of taxes or assessments, he may effect a
stay by depositing the amount of the rent due or of such
taxes or assessments, and interest and penalty, if any
thereon due, and the costs of the special proceeding, with
the clerk of the court, or where the office of clerk is not
provided for, with the court, who shall thereupon, upon
demand, pay the amount deposited to the petitioner or his
duly authorized agent; or by delivering to the court or
clerk his undertaking to the petitioner in such sum as the
court approves to the effect that he will pay the rent, or
such taxes or assessments, and interest and penalty and
costs within ten days, at the expiration of which time a
warrant may issue, unless he produces to the court
satisfactory evidence of the payment.
2. Where the lessee or tenant has taken the benefit of an
insolvency statute or has been adjudicated a bankrupt, he
may effect a stay by paying the costs of the special
proceeding and by delivering to the court or clerk his
undertaking to the petitioner in such a sum as the court
approves to the effect that he will pay the rent of the
premises as it has become or thereafter becomes due.
3. Where he continues in possession of real property which has
been sold by virtue of an execution against his property, he
may effect a stay by paying the costs of the special
proceeding, and delivering to the court or clerk an
affidavit that he claims the possession of the property by
virtue of a right or title acquired after the sale or as
guardian or trustee for another; together with his
undertaking to the petitioner in such a sum as the court
approves to the effect that he will pay any costs and
damages which may be recovered against him in an action to
recover the property brought against him by the petitioner
within six months thereafter; and that he will not commit
any waste upon or injury to the property during his
occupation thereof.
4. (a) In a proceeding to recover the possession of
premises outside the city of New York occupied for
dwelling purposes, other than a room or rooms in an
hotel, lodging house or rooming house, upon the ground
that the occupant is holding over and continuing in
possession of the premises after the expiration of his
term and without the permission of the landlord, or, in
a case where a new lessee is entitled to possession,
without the permission of the new lessee, the court, on
application of the occupant, may stay the issuance of a
warrant and also stay any execution to collect the
costs of the proceeding for a period of not more than
four months, if it appears that the premises described
in the petition are used for dwelling purposes; that
the application is made in good faith; that the
applicant cannot within the neighborhood secure
suitable premises similar to those occupied by him and
that he made due and reasonable efforts to secure such
other premises, or that by reason of other facts it
would occasion extreme hardship to him or his family if
the stay were not granted.
(b) Such stay shall be granted and continue effective only
upon the condition that the person against whom the
judgment is entered shall make a deposit in court of
the entire amount, or such installments thereof from
time to time, as the court may direct, for the
occupation of the premises for the period of the stay,
at the rate for which he was liable as rent for the
month immediately prior to the expiration of his term
or tenancy, plus such additional amount, if any, as the
court may determine to be the difference between such
rent and the reasonable rent or value of the use and
occupation of the premises; such deposit shall also
include all rent unpaid by the occupant prior to the
stay.
The amount of such deposit shall be determined by the
court upon the application for the stay and such
determination shall be final and conclusive in respect
to the amount of such deposit, and the amount thereof
shall be paid into court, in such manner and in such
installments, if any, as the court may direct. A
separate account shall be kept of the amount to the
credit of each proceeding, and all such payments shall
be deposited in a bank or trust company and shall be
subject to the check of the clerk of the court, if
there be one, or otherwise of the court. The clerk of
the court, if there be one, and otherwise the court
shall pay to the landlord or his duly authorized agent,
the amount of such deposit in accordance with the terms
of the stay or the further order of the court.
(c) The provisions of this subdivision shall not apply to a
proceeding where the petitioner shows to the
satisfaction of the court that he desires in good faith
to recover the premises for the purposes of demolishing
same with the intention of constructing a new building,
plans for which new building shall have been duly filed
and approved by the proper authority; nor shall it
apply to a proceeding to recover possession upon the
ground that an occupant is holding over and is
objectionable if the landlord shall establish to the
satisfaction of the court that such occupant is
objectionable.
(d) Any provision of a lease or other agreement whereby a
lessee or tenant waives any provision of this
subdivision shall be deemed against public policy and
void.
(e) The provisions of this subdivision shall continue in
effect only until September first, nineteen hundred
sixty-seven.
Sec. 753. STAY WHERE TENANT HOLDS OVER IN PREMISES OCCUPIED FOR
DWELLING PURPOSES IN CITY OF NEW YORK.
1. In a proceeding to recover the possession of premises in the
city of New York occupied for dwelling purposes, other than
a room or rooms in an hotel, lodging house, or rooming
house, upon the ground that the occupant is holding over and
continuing in possession of the premises after the
expiration of his term and without the permission of the
landlord, or, in a case where a new lessee is entitled to
possession, without the permission of the new lessee, the
court, on application of the occupant, may stay the issuance
of a warrant and also stay any execution to collect the
costs of the proceeding for a period of not more than six
months, if it appears that the premises are used for
dwelling purposes; that the application is made in good
faith; that the applicant cannot within the neighborhood
secure suitable premises similar to those occupied by him
and that he made due and reasonable efforts to secure such
other premises, or that by reason of other facts it would
occasion extreme hardship to him or his family if the stay
were not granted.
2. Such stay shall be granted and continue effective only upon
the condition that the person against whom the judgment is
entered shall make a deposit in court of the entire amount,
or such installments thereof from time to time as the court
may direct, for the occupation of the premises for the
period of the stay, at the rate for which he was liable as
rent for the month immediately prior to the expiration of
his term or tenency, plus such additional amount, if any, as
the court may determine to be the difference between such
rent and the reasonable rent or value of the use and
occupation of the premises; such deposit shall also include
all rent unpaid by the occupant prior to the period of the
stay. The amount of such deposit shall be determined by the
court upon the application for the stay and such
determination shall be final and conclusive in respect to
the amount of such deposit, and the amount thereof shall be
paid into court, in such manner and in such installments, if
any, as the court may direct. A separate account shall be
kept of the amount to the credit of each proceeding, and all
such payments shall be deposited in a bank or trust company
and shall be subject to the check of the clerk of the court,
if there be one, or otherwise of the court. The clerk of the
court, if there be one, and otherwise the court shall pay to
the landlord or his duly authorized agent, the amount of
such deposit in accordance with the terms of the stay or the
further order of the court.
3. The provisions of this section shall not apply to a
proceeding where the petitioner shows to the satisfaction of
the court that he desires in good faith to recover the
premises for the purpose of demolishing same with the
intention of constructing a new building, plans for which
new building shall have been duly filed and approved by the
proper authority; nor shall it apply to a proceeding to
recover possession upon the ground that an occupant is
holding over and is objectionable if the landlord shall
establish to the satisfaction of the court that such
occupant is objectionable.
4. In the event that such proceeding is based upon a claim that
the tenant or lessee has breached a provision of the lease,
the court shall grant a ten day stay of issuance of the
warrant, during which time the respondent may correct such
breach.
5. Any provision of a lease or other agreement whereby a lessee
or tenant waives any provision of this section shall be
deemed against public policy and void.
Sec. 755. STAY OF PROCEEDING OR ACTION FOR RENT UPON FAILURE TO
MAKE REPAIRS.
1. (a) Upon proper proof that a notice or order to remove
or cease a nuisance or a violation or to make necessary
and proper repairs has been made by the municipal
department charged with the enforcement of the multiple
dwelling law, the multiple residence law, or any other
applicable local housing code, or officer or officers
thereof charged with the supervision of such matters,
if the condition against which such notice or order is
directed is, in the opinion of the court, such as to
constructively evict the tenant from a portion of the
premises occupied by him, or is, or is likely to
become, dangerous to life, health, or safety, the court
before which the case is pending may stay proceedings
to dispossess the tenant for non-payment of rent or any
action for rent or rental value. In any such
proceeding, on the question of fact, as to the
condition of the dwelling the landlord or petitioner
shall have the burden of disproving the condition of
the dwelling as such condition is described in the
notice or order.
(b) Upon proper proof of the existence of a condition that
is in the opinion of the court, such as to
constructively evict the tenant from a portion of the
premises occupied by him, or is or is, likely to
become, dangerous to life, health, or safety, the court
before which the case is pending may stay proceedings
to dispossess the tenant for non-payment of rent, or
any action for rent or rental value.
(c) The court shall in no case grant a stay where it
appears that the condition against which the notice or
order is directed has been created by the willful or
negligent act of the tenant or his agent. Such stay
shall continue in force, until an order shall be made
by the court vacating it, but no order vacating such
stay shall be made, except upon three days' notice of
hearing to the tenant, or respondent, or his attorney,
and proof that such notice or order has been complied
with.
2. The tenant or respondent shall not be entitled to the stay
unless he shall deposit with the clerk of the court the rent
then due, which shall, for the purposes of this section, be
deemed the same as the tenant was liable for during the
preceding month or such as is reserved as the monthly rent
in the agreement under which he obtained possession of the
premises. The stay may be vacated upon three days' notice
upon failure to deposit with the clerk the rent within five
days after it is due, during the pendency of the proceeding
or action.
3. During the continuance of the stay, the court may direct, in
its discretion, upon three days notice to all parties, the
release to a contractor or materialman of all or such part
of the moneys on deposit as shall be sufficient to pay bills
properly presented by such contractor or materialman for the
maintenance of and necessary repairs to the building
(including but not limited to payments for fuel,
electricity, gas, janitorial services and repairs necessary
to remove violations), upon a showing by the tenant that the
landlord is not meeting his legal obligations therefor or
direct such release to a municipal department to pay bills
and expenses for such maintenance and repairs upon a showing
that the landlord did not meet his legal obligation to
provide such maintenance or perform repairs and that the
department incurred expenses therefor. Upon the entry of an
order vacating the stay the remaining money deposited shall
be paid to the plaintiff or landlord or his duly authorized
agent.
4. Neither party shall be entitled to any costs in any
proceeding or action wherein the stay shall be granted
except that costs may be awarded against the tenant or
defendant in the discretion of the court in the event the
condition complained of shall be found to be due to the
willful act of the tenant or defendant, such costs, however,
not to exceed the sum of twenty-five dollars.
Sec. 756. STAY OF SUMMARY PROCEEDINGS OR ACTIONS FOR RENT UNDER
CERTAIN CONDITIONS.
In the event that utilities are discontinued in any part of a
multiple dwelling because of the failure of the landlord or other
person having control of said multiple dwelling to pay for
utilities for which he may have contracted, any proceeding to
dispossess a tenant from said building or an action against any
tenant of said building for rent shall be stayed until such time
as the landlord or person having control of said multiple
dwelling pays the amount owing for said utilities and until such
time as the utilities are restored to working order.
Sec. 761. REDEMPTION BY LESSEE.
Where the special proceeding is founded upon an allegation that a
lessee holds over after a default in the payment of rent, and the
unexpired term of the lease under which the premises are held
exceeds five years at the time when the warrant is issued the
lessee, his executor, administrator or assignee, at any time
within one year after the execution of the warrant, unless by the
terms of the lease such lessee shall have waived his right to
redeem, or such lessee, executor, administrator or assignee shall
have subsequently waived the right to redeem by a written
instrument filed and recorded in the office in which the lease is
recorded, or if not so recorded, in the office in which deeds are
required to be recorded of the county in which the leased
premises are located, may pay or tender to the petitioner, his
heir, executor, administrator or assignee, or if, within five
days before the expiration of the year he cannot be found with
reasonable diligence within the city or town wherein the property
or a portion thereof is situated, then to the court which issued
the warrant, all rent in arrears at the time of the payment or
tender with interest thereupon and the costs and charges incurred
by the petitioner. Thereupon the person making the payment or
tender shall be entitled to the possession of the demised
premises under the lease and may hold and enjoy the same
according to the terms of the original demise, except as
otherwise prescribed in section 765.
Sec. 763. REDEMPTION BY CREDITOR OF LESSEE.
In a case specified in section 761, a judgment creditor of the
lessee whose judgment was docketed in the county before the
precept was issued, or a mortgagee of the lease whose mortgage
was duly recorded in the county before the precept was issued,
unless by the terms of the lease the lessee shall have waived his
right to redeem, or such lessee, or his executor, administrator
or assignee shall have subsequently waived the right to redeem by
a written instrument filed and recorded in the office in which
the lease is recorded, or if not so recorded, in the office in
which deeds are required to be recorded of the county in which
the leased premises are located, before such judgment was
docketed or such mortgage recorded, or such judgment creditor or
mortgagee himself shall have waived in writing his right to
redeem, may at any time before the expiration of one year after
the execution of the warrant, unless a redemption has been made
as prescribed in section 761, file with the court which issued
the warrant a notice specifying his interest and the sum due to
him, describing the premises, and stating that it is his
intention to redeem as prescribed in this section. If a
redemption is not made by the lessee, his executor, administrator
or assignee within a year after the execution of the warrant, the
person so filing a notice, or, if two or more persons have filed
such notices the one who holds the first lien, at any time before
two o'clock of the day, not a Sunday or a public holiday, next
succeeding the last day of the year, may redeem for his own
benefit in like manner as the lessee, his executor, administrator
or assignee might have so redeemed. Where two or more judgment
creditors or mortgagees have filed such notices, the holder of
the second lien may so redeem at any time before two o'clock of
the day, not a Sunday or a public holiday, next succeeding that
in which the holder of the first lien might have redeemed; and
the holder of the third and each subsequent lien may redeem in
like manner at any time before two o'clock of the day, not a
Sunday or a public holiday, next succeeding that in which his
predecessor might have redeemed. But a second or subsequent
redemption is not valid unless the person redeeming pays or
tenders to each of his predecessors who has redeemed the sum paid
by him to redeem and also the sum due upon his judgment or
mortgage; or deposits those sums with the court for the benefit
of his predecessor or predecessors.
Sec. 765. EFFECT OF REDEMPTION UPON LEASE.
Where a redemption is made, as prescribed in this article, the
rights of the person redeeming are subject to a lease, if any,
executed by the petitioner since the warrant was issued, so far
that the new lessee, his assigns, undertenants, or other
representatives, upon complying with the terms of the lease, may
hold the premises so leased until twelve o'clock, noon, of the
first day of May next succeeding the redemption. And in all other
respects, the person so redeeming, his assigns and
representatives succeed to all the rights and liabilities of the
petitioner under such a lease.
Sec. 767. ORDER OF REDEMPTION; LIABILITY OF PERSONS REDEEMING.
The person redeeming, as prescribed in this article or the owner
of the property so redeemed, may present to the court which
issued the warrant a petition setting forth the facts of the
redemption and praying for an order establishing the rights and
liabilities of the parties upon the redemption, whereupon the
court must make an order requiring the other party to the
redemption to show cause at a time and place therein specified
why the prayer of the petition should not be granted. The order
to show cause must be made returnable not less than two nor more
than ten days after it is granted; and it must be served at least
two days before it is returnable. Upon the return thereof, the
court must hear the allegations and proofs of the parties and
must make such a judgment as justice requires. The costs and
expenses must be paid by the petitioner. The judgment, or a
certified copy thereof, may be recorded in like manner as a deed.
A person, other than the lessee, who redeems as prescribed in
this article succeeds to all the duties and liabilities of the
lessee accruing after the redemption as if he was named as lessee
in the lease.
Sec. 769. JURISDICTION; COURT; VENUE.
1. A special proceeding by tenants of a dwelling in the city of
New York or the counties of Nassau, Suffolk, Rockland and
Westchester for a judgment directing the deposit of rents
into court and their use for the purpose of remedying
conditions dangerous to life, health or safety may be
maintained in the civil court of the city of New York, the
district court of the counties of Suffolk and Nassau and the
county courts or city courts in the counties of Rockland and
Westchester.
2. The place of trial of the special proceeding shall be within
the county in which the real property or a portion thereof
from which the rents issue is situated.
