N.Y. Real Property Actions & Proceedings Law § 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, at the request of

either party shall adjourn the trial of the issue, not less than

fourteen days, except by consent of all parties. A party's second or

subsequent request for adjournment shall be granted in the court's sole

discretion.

2. In the city of New York:

(a) In a summary proceeding upon the second of two adjournments

granted solely at the request of the respondent, or, upon the sixtieth

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, counting only days attributable to adjournment requests made

solely at the request of the respondent and not counting an initial

adjournment requested by a respondent unrepresented by counsel for the

purpose of securing counsel, whichever occurs sooner, the court may,

upon consideration of the equities, direct that the respondent, upon a

motion on notice made by the petitioner, deposit with the court sums of

rent or use and occupancy that shall accrue subsequent to the date of

the court's order, which may be established without the use of expert

testimony. The court shall not order deposit or payment of use and

occupancy where the respondent can establish, 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) a defense based upon the existence of hazardous or immediately

hazardous violations of the housing maintenance code in the subject

apartment or common areas; or

(v) a colorable defense of rent overcharge; or

(vi) a defense that the unit is in violation of the building's

certificate of occupancy or is otherwise illegal under the multiple

dwelling law or the New York city housing maintenance code; or

(vii) the court lacks personal jurisdiction over the respondent.

Two adjournments shall not 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) In establishing the monthly amount to be deposited, the court

shall not exceed the amount of the regulated rent for the unit under any

state, local or federal regulatory scheme, or the amount of the tenant's

rent share under a state, local or federal subsidy program, or the

amount of the tenant's share under an expired subsidy, unless the tenant

has entered into an enforceable new agreement to pay the full lease

rent.

(c) (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 a fixed income, including but not limited to, social security

income, supplemental security income pursuant to title sixteen of the

federal social security act and title six of article five of the social

services law, or pension income, the respondent shall not be required to

deposit more than thirty percent of the monthly payments.

(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.

(d) (i) In the event that the respondent 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 subsequent to the issuance of the court's

deposit order, the court upon an application of the petitioner may 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 upon respondent's sole request shall be granted, the case

shall be assigned by the administrative judge to a trial ready part and

such trial shall commence as soon as practicable and continue day to day

until completed.

(ii) The court may extend any time provided for such deposit under

this subdivision for good cause shown.

(iii) 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.

(e) The court may dismiss any summary proceeding without prejudice and

with costs to the respondent by reason of excessive adjournments

requested by the petitioner.

(f) Under no circumstances shall the respondent's failure or inability

to pay use and occupancy as ordered by the court constitute a basis to

dismiss any of the respondent's defenses or counterclaims, with or

without prejudice to their assertion in another forum.