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New York Real Property Actions and Proceedings Law Section 745 - Trial.

Legal Research Home > New York Lawyer > Real Property Actions and Proceedings > New York Real Property Actions and Proceedings Law Section 745 - Trial.

    § 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 of two adjournments at the
  request  of  the  respondent, or, upon the thirtieth 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,  whichever  occurs
  sooner,  the court shall direct that the respondent, upon an application
  by the petitioner, deposit with the court within five days sums of  rent
  or  use  and  occupancy accrued from the date the petition and notice of
  petition are served upon the respondent, and all sums as they become due
  for rent and use and occupancy, which may be established without the use
  of  expert  testimony,  unless  the  respondent  can  establish,  at  an
  immediate  hearing, 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) the court lacks jurisdiction.
    When the rental unit that is the subject of the petition is located in
  a  building containing twelve or fewer units, the court shall inquire of
  the respondent as to whether there is any undisputed amount of the  rent
  or  use  and occupancy due to the petitioner. Any such undisputed amount
  shall be paid directly to the petitioner, and any disputed amount  shall
  be  deposited  to  the  court  by  the  respondent  as  provided in this
  subdivision.
    Two  adjournments  shall  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)  (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  department  of  social  services,  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  aid
  to dependent children. 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
  department  of  social  services  or  a social services district. In the
  event the respondent receives supplemental security income  pursuant  to
  title  sixteen  of  the  federal  social  security  act and title six of
  article five of the social services law, the respondent  shall  only  be
  required  to  deposit  one-third  of  the  monthly supplemental security
  income payment.
    (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.
    (c)  (i)  If  the  respondent  shall  fail  to comply with the court's
  directions with respect to direct payment to the petitioner or making  a
  deposit  as  directed by the court of the full amount of the rent or use
  and occupancy required to be deposited, the court upon an application by
  the  petitioner  shall  dismiss  without  prejudice  the  defenses   and
  counterclaims  interposed  by  the  respondent  and  grant  judgment for
  petitioner unless respondent has interposed the defense of  payment  and
  shows  that the amount required to be deposited has previously been paid
  to the petitioner.
    (ii) In the event that the respondent makes a deposit required by this
  subdivision but 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 up to the  time  of  the  entry  of  judgment,  the  court  upon  an
  application  of  the  petitioner  shall  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 without petitioner
  consent  shall  be  granted,  the  case  shall  be   assigned   by   the
  administrative judge to a trial ready part and such trial shall commence
  and  continue day to day until completed. There shall be no stay granted
  of such trial without an order to respondent to  pay  rent  or  use  and
  occupancy due pursuant to this subdivision and rent or use and occupancy
  as it becomes due.
    (iii)  The  court  shall not extend any time provided for such deposit
  under this subdivision without the consent of the petitioner.
    (iv) 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
  judgment.
    (v)  The provisions of this paragraph requiring the deposit of rent or
  use and occupancy as it becomes due shall not be waived by the court.
    (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 respondent of a trial of any defenses or  counterclaims  in  a
  separate  action if such defenses or counterclaims are dismissed without
  prejudice.

Last modified: August 9, 2006