Let Tenants Withhold Rent for Repairs

Section 1. The real property actions and proceedings law is amended by adding a new article 7-C to read as follows:

ARTICLE 7-C

SPECIAL PROCEEDINGS BY TENANTS OF DWELLINGS

FOR JUDGMENT DIRECTING DEPOSIT OF RENTS AND THE USE

THEREOF FOR THE PURPOSE OF REMEDYING CONDITIONS DANGEROUS

TO LIFE, HEALTH OR SAFETY Section 796. Definitions.

796-a. Jurisdiction; court; venue.

796-b. Grounds for the proceeding.

796-c. Commencement; notice of petition; time and manner of

service.

796-d. Contents of petition.

796-e. Answer.

796-f. Trial.

796-g. Defenses.

796-h. Judgment.

796-i. Application by mortgagee or lienor of record or other

person having an interest in the property.

796-j. Appointment of administrator.

796-k. Presentation or settlement of accounts.

796-l. Waiver void.

796-m. Defense of warranty of habitability inapplicable.

§ 796. Definitions. As used in this article:

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD15457-03-0

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1. "Owner" means the owner or owners of the dwelling, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, agent, or any other person or entity directly or indirectly in control of a dwelling, but shall not include a receiver appointed pursuant to section three hundred nine of the multiple dwelling law.

2. "Dwelling" or "premises" means any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings and is either rented, leased, let or hired out, to be occupied as such, including, but not limited to, an apartment building, a condominium, a townhouse, a single-family house or a multiple-family residence building. "Dwelling" or "premises" shall also include premises zoned for mixed residential and commercial use, provided that a portion of such premises are, in fact, occupied by one or more tenants for residential purposes.

3. "Commissioner" means the commissioner, chief supervisor or chief officer of a department.

4. "Department" means a department, agency or office.

5. "Municipality" means a county, city, town or village.

6. "Person" means an individual, partnership, corporation, association, trust or other group or legal entity, however organized.

§ 796-a. Jurisdiction; court; venue. 1. A special proceeding for a judgment directing the deposit of rents into court and the use of such monies for the purpose of remedying conditions at a dwelling dangerous to life, health or safety may be maintained by tenant or tenants of the dwelling in the county court, district court or city court having jurisdiction in the municipality in which the dwelling is located.

2. A special proceeding as described in subdivision one of this section may also be commenced by the commissioner of the department charged with enforcement of the housing maintenance code in the municipality where the dwelling is located.

(a) If the proceeding is instituted by such commissioner, one-third or more of the tenants of the dwelling may, at any time thereafter during the pendency of the proceeding or after final judgment pursuant to section seven hundred ninety-six-h or seven hundred ninety-six-i of this article, petition for substitution of themselves in place and instead of such commissioner. Such substitution shall be ordered by the court unless good reason to the contrary shall be shown.

(b) A special proceeding pursuant to the provisions of this article may only be commenced with respect to the same premises by one municipality at a time.

3. The place of trial of the special proceeding shall be within the county in which the dwelling or a portion thereof from which the rents issue is situated.

4. The provisions of this article shall not apply to dwellings located in the city of New York or in the counties of Nassau, Suffolk, Rockland and Westchester or in any cities, towns or villages of such counties.

§ 796-b. Grounds for the proceeding. One-third or more of the tenants occupying a multiple residence dwelling or a tenant occupying a single residence dwelling or the commissioner of the department charged with enforcement of the housing maintenance code in the municipality where the dwelling is located may maintain a special proceeding as provided in this article, upon the grounds that there exists in such dwelling, or in any part thereof:

1. a lack of heat, running water, light, electricity, adequate sewage disposal facilities, or any other condition dangerous to life, health or

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safety, which has existed for five days, or an infestation by rodents, or any combination of such conditions; or

2. a course of conduct by the owner or the owner's agents of harassment, illegal eviction, continued deprivation of services or other acts dangerous to life, health or safety.

§ 796-c. Commencement; notice of petition; time and manner of service.

1. A special proceeding prescribed by this article shall be commenced by the service of a petition and notice of petition. A notice of petition may be issued only by a judge or the clerk of the court.

2. The notice of petition shall specify the time and place of the hearing on the petition and state that if at such time, a defense to such petition is not interposed and established by the owner or any mortgagee or lienor of record, a final judgment may be rendered directing that:

(a) the rents due on the date of entry of such judgment from the petitioning tenants and the rents due on the dates of service of such judgment on all other tenants occupying such dwelling, from such other tenants, shall be deposited with the administrator appointed pursuant to section seven hundred ninety-six-j of this article;

(b) any rents to become due in the future from such petitioners and from all other tenants occupying such dwelling shall be deposited with such administrator as they fall due; and

(c) such deposited rents shall be used, subject to the court's direction, to the extent necessary to remedy the condition or conditions alleged in the petition.

3. The notice of petition and petition shall be served upon the person set forth as the owner on the last recorded deed to the rented dwelling and upon every mortgagee and lienor of record, at least five days before the time at which the petition is noticed to be heard.

4. The proof of service shall be filed with the court before which the petition is to be heard on or before the return date.

5. (a) Service of the notice of petition and petition shall be made by personally delivering them to the person or persons required to be served pursuant to subdivision three of this section. If service cannot with due diligence be made upon an owner, mortgagee or lienor of record in such manner, it shall be made:

(i) upon the person set forth as the owner on the last recorded deed, to the rented dwelling by registered or certified mail, return receipt requested, at the address set forth in the recorded deed and by delivering to and leaving copies of the notice of petition and the petition personally with the person designated as the managing agent of the dwelling, if one shall have been designated;

(ii) upon a mortgagee or lienor of record, by registered or certified mail, return receipt requested, at the address set forth in the recorded mortgage or lien.

(b) If such personal service upon the person set forth as the owner on the last recorded deed to the rented property cannot be made with due diligence, service upon such last registered owner shall be made by affixing a copy of the notice and petition upon a conspicuous part of the subject dwelling; and in addition, within two days after such affixing, by sending a copy thereof by registered or certified mail, return receipt requested, to the owner at the address set forth in the last recorded deed with respect to such dwelling.

6. Notice of the proceeding shall be given to the non-petitioning tenants occupying the dwelling by affixing a copy of the notice of petition and petition upon a conspicuous part of the subject dwelling.

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§ 796-d. Contents of petition. The petition shall:

1. Allege material facts showing that there exists in such dwelling or any part thereof one or more of the following:

(a) a lack of heat, running water, light, electricity, adequate sewage disposal facilities, or any other condition dangerous to life, health or safety, which has existed for five days, or an infestation of rodents; or

(b) a course of conduct by the owner or his agents of harassment, illegal eviction, continued deprivation of services or other acts dangerous to life, health or safety.

2. If the petitioners shall be tenants occupying the dwelling, they shall allege the number of petitioners making the petition and that:

(a) in the case of a multiple residence dwelling, they constitute one-third or more of the tenants in occupancy thereof; or

(b) in the case of a single residence dwelling, they are the occupants of such single-residence dwelling.

3. Allege a brief description of the nature of the work required to remove or remedy the condition and an estimate as to the cost thereof except that if the petitioners shall be tenants occupying the dwelling, the petition may allege the conditions complained of in which event such description shall not be required to be made by anyone not a party to the petition.

4. If the petitioners shall be tenants occupying the dwelling, they shall allege the amount of rent due from each such petitioner, monthly.

5. State the relief sought.

§ 796-e. Answer. At the time when the petition is to be heard, the owner and any mortgagee or lienor of record, shall answer in writing. 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 served at least three days before the time the petition is noticed to be heard and any reply shall be served at least one day before such time.

§ 796-f. Trial. Where triable issues of fact are raised, they shall be tried by the court without a jury at the time when issue is joined; provided, however, that the court, in its discretion, may grant an adjournment of such trial at request of either party, if it determines that an adjournment is necessary to enable either of the parties to procure the necessary witnesses, or upon consent of all the parties who appear. Such adjournment shall not be for more than five days except by consent of all the parties who appear.

§ 796-g. Defenses. It shall be a sufficient defense to the proceeding, if the owner or any mortgagee or lienor of record establish that:

1. The condition or conditions alleged in the petition did not in fact exist or that such condition or conditions have been removed or remedied; or

2. Such condition or conditions have been caused by a petitioning tenant or tenants or members of the family or families of such petitioner or petitioners or of their guests or by other residents of the dwelling or their families or guests; or

3. Any tenant or resident of the dwelling has refused entry to the owner or the owner's agent to a portion of the premises for the purpose of correcting such condition or conditions.

§ 796-h. Judgment. 1. The court shall render a final judgment either:

(a) Dismissing the petition for failure to affirmatively establish the allegations thereof or because of the affirmative establishment by the owner or a mortgagee or lienor of record of a defense or defenses specified in section seven hundred ninety-six-g of this article; or

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(b)(i) Directing that:

(A) the rents due on the date of the entry of such judgment from the petitioning tenants and the rents due on the dates of service of the judgment on all other residential and non-residential tenants occupying such dwelling from such other tenants, shall be deposited with the administrator appointed by the court, pursuant to section seven hundred ninety-six-j of this article;

(B) any rents to become due in the future from all tenants occupying such dwelling shall be deposited with such administrator as they come due;

(C) such deposited rents shall be used, subject to the court's direction, to the extent necessary to remedy the condition or conditions alleged in the petition; and

(D) upon the completion of such work in accordance with such judgment, any remaining surplus shall be turned over to the owner, together with a complete accounting of the rents deposited and the costs incurred; and

(ii) granting such other and further relief as to the court may seem just and proper.