2010 New York Code
RPA - Real Property Actions & Proceedings
Article 7 - (701 - 767) SUMMARY PROCEEDING TO RECOVER POSSESSION OF REAL PROPERTY
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 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  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.

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