NY-RPA Real Property Actions & Proceedings Law NY

Short title. This chapter shall be known as the real property

actions and proceedings law and may be cited as "RPAPL".

Definitions. 1. As used in section 1641 of this chapter and in

sections 1901 and 1911 of this chapter, the terms "real property" and

"lands" are co-extensive in meaning with lands, tenements and

hereditaments.

2. As used in section 1921, the term "real property" includes lands,

tenements and hereditaments and chattels real, except a lease for a term

not exceeding three years.

3. As used in this chapter the term "incompetent" or "incompetent

person" means a person incompetent to manage his affairs of whose

property a committee has been appointed pursuant to section 78.03 or a

person of whose property a committee has been appointed pursuant to

section 78.07 of the mental hygiene law.

4. As used in this chapter the term "infant" or "minor" means a person

who has not attained the age of eighteen years.

5. As used in this chapter, the term "conservatee" means a person

under substantial impairment within the meaning of the conservatorship

provisions of article seventy-seven of the mental hygiene law for whom a

conservator has been appointed.

Jurisdiction of certain actions relating to real property

situate without the state. An action may be maintained in the courts of

this state to recover damages for injuries to real estate without the

state, or for breach of contracts or of covenants relating thereto,

whenever such an action could be maintained in relation to personal

property without the state. The action must be tried in the county in

which the parties or some one thereof resides, or if no party resides

within the state, in any county.

Construction of act of reconsolidation. 1. This chapter shall

be construed as a continuation and reenactment of the provisions of the

real property law repealed by article 21 hereof as such provisions

existed on December 31, 1961.

2. The repeal by this chapter of provisions of the real property law

specified in article 21 hereof and the enactment of this chapter shall

not affect any action or proceeding pending under any such provision at

the time this chapter shall take effect.

3. Any act of the legislature of the year 1962 or 1963 which in form

amends or repeals or purports to amend or repeal any provision or

provisions of the real property law repealed by article 21 of this

chapter shall be legally effective notwithstanding the repeal of such

provision or provisions and shall be construed as an amendment or

repeal, as the case may be, of the corresponding provision or provisions

of this chapter, and such corresponding provisions shall be construed to

be amended, modified, changed or repealed as though they had been

expressly and in terms so amended or repealed.

4. Reference by any law, general or special, in force on December 31,

1961, or in any act of the legislature of the year 1962 or 1963, to a

provision of the real property law repealed by article 21 of this

chapter as in force immediately before the time this chapter shall take

effect shall be construed to refer to the corresponding provision of

this chapter.

State tax commission, state or industrial commissioner as

defendant in certain real property actions. In any action affecting real

property upon which the state tax commission has a lien under the tax

law or under a law enacted pursuant to the authority of the tax law or

article two-E of the general city law, whether or not such lien exists

by reason of the filing or docketing of a warrant under such laws, the

state tax commission may be made a party defendant in the same manner as

a private person. In any action affecting real property upon which the

state has a lien under sections two hundred forty-six-a and two hundred

forty-six-b of the lien law, the state may be made a party defendant in

the same manner as a private person. In any action affecting real

property upon which a lien exists by reason of the docketing of a

warrant pursuant to the unemployment insurance law, the industrial

commissioner may be made a party defendant in the same manner as a

private person.

Pleading interest of the state. Where the state or any

department, bureau, board, commission, council, officer, agency or

instrumentality of the state is defendant in an action affecting real

property, the complaint shall set forth:

1. Detailed facts showing the particular nature of the interest in or

lien on the real property and the reason for making the state a party

defendant.

2. If the lien exists by virtue of a judgment, other than a warrant

the name of the court, date recorded, clerk's office in which filed, and

names of the parties against whom and in whose favor recorded. In the

case of a warrant, the date filed or docketed, clerk's office in which

filed or docketed, and names of the parties against whom and in whose

favor issued.

3. If the lien exists by virtue of a provision of law other than a

judgment, the provision of law under which said lien is created.

4. If the lien is one under articles ten, ten-a, ten-b, ten-c or

twenty-six of the tax law, whether or not such lien exists by reason of

the filing or docketing of a warrant under such law, the name of each

decedent against whose estate there is an unpaid transfer or estate tax,

the date of death, place of residence at the time of death, heirs at law

and next of kin, whether the decedent died testate or intestate, whether

his estate has been administered, and if so where.

5. If the lien is one under articles nine, nine-a, nine-b, nine-c or

twenty-seven of the tax law, whether or not such lien exists by reason

of the filing or docketing of a warrant under such law, the name of the

corporation, association, joint-stock company, unincorporated company,

person, or partnership against whose property there is an unpaid

corporation, license, or franchise tax or penalty.

6. If the lien is one under article twenty-six-a of the tax law,

whether or not such lien exists by reason of the filing or docketing of

a warrant under such law, the names of the donees or transferees against

whose property there is an unpaid gift tax.

Pleading interest of a city. Where a city or any department,

bureau, board, commission, officer, agency or instrumentality thereof is

a defendant in an action affecting real property, the complaint shall

set forth:

1. Detailed facts showing the particular nature of the interest in or

lien on the real property and the reason for making such city a

party-defendant.

2. If the lien exists by virtue of a judgment, the name of the court,

date recorded, clerk's office in which filed, the names of the parties

against whom and in whose favor such judgment was recovered and a brief

description of the grounds for or the nature of such judgment.

3. If the lien exists by virtue of a provision of law other than a

judgment, the provision of law under which said lien is created.

Judgment in action adversely affecting the title, interest or

claim of the state based upon tax deed. In any action affecting the

title, or the possession, enjoyment or use of, real property in which

one of the parties is the state, any judgment that may adversely affect

the title, interest or claim of the state based upon a tax deed shall

provide in effect as follows:

1. That the state shall have a lien upon such real property or part

thereof described in such tax deed, prior and superior to all other

liens, (a) for the amount of the unpaid taxes not adjudged illegal in

such action for which such real property was sold or liable to be sold

in the first instance and for which such tax deed was issued, together

with fees, charges and interest; (b) for the amount of the unpaid taxes

not adjudged illegal in such action for which such real property was

subsequently sold or liable to be sold, together with fees, charges and

interest; (c) for the amount of all taxes, fees and charges admitted or

paid by the state upon such real property to the date of the entry of

such judgment, together with interest thereon from the date of such

admission or payment. In the determination of the amount of such lien,

establishment of payments of taxes on said real property by the adjudged

or admitted owner of the property during any of the same years in which

payments were also made by the state shall reduce the lien of the state

by the larger of the two tax payments for each of the years affected by

duplicate payments, and in the event that wholly identical areas are not

affected by the duplicate payments the court shall have power to

apportion and adjust the amount of the lien as equity may require.

2. That the state may foreclose such lien as a mortgage on real

property is foreclosed, provided such lien remains unpaid after the

expiration of one year from the entry of such judgment.

The remedy provided by this section for recovery of tax payments shall

be in addition to any other remedy now or hereafter available in law or

in equity.

Prevention of waste or damage during pendency. If, during the

pendency of an action to recover a judgment affecting the title to, or

the possession, use or enjoyment of, real property, a party commits

waste upon, or does any other damage to, the property in controversy,

the court may grant, without notice or security, an order restraining

him from the commission of any further waste upon or damage to the

property. Disobedience to such an order may be punished as a contempt of

the court. This section does not affect the right to a permanent or

temporary injunction in such an action.

Compelling delivery of possession of real property. Where a

judgment affecting the title to, or the possession, enjoyment or use of,

real property allots to any person a distinct parcel of real property,

or contains a direction for the sale of real property, or confirms such

an allotment or sale, it also may direct the delivery of the possession

of the property to the person entitled thereto, subject to the rights

and obligations set forth in section thirteen hundred five of this

chapter.

If a party, or his representative or successor, who is bound by the

judgment, withholds possession from the person thus declared to be

entitled thereto, the court, by order, in its discretion, besides

punishing the disobedience as a contempt, may require the sheriff to put

that person into possession. Such an order shall be executed as if it

were an execution for the delivery of the possession of the property.

Sale; notice of; when and how conducted. 1. A sale of real

property made in pursuance of a judgment affecting the title to, or the

possession, enjoyment or use of, real property, shall be at public

auction to the highest bidder.

2. (a) Notice of such sale shall be given by the officer making it by

publishing a notice of the time and place of the sale, containing a

description of the property to be sold, in a newspaper published in the

county in which the property is located, or, if there is none, in a

newspaper published in an adjoining county, unless the property is

situated wholly or partly in a city, or in an incorporated village in

which a daily, semi-weekly or tri-weekly newspaper is published, and, in

that case, by publishing notice of the sale in such a daily, semi-weekly

or tri-weekly paper, except that where such real property is located in

a county within the city of New York such publication shall be in a

daily newspaper published within such county, or in a weekly paper

published in a city or in such incorporated village. If the property be

situated in a city, or a village in which no newspaper is published

daily, semi-weekly or tri-weekly, and there be an adjoining city or

village in the same or another county, in which a newspaper is

published, daily, semi-weekly or tri-weekly, such notice may be

published in such daily, semi-weekly or tri-weekly newspaper of the

latter city or village or in a weekly newspaper of such city. In each

case, publication may be either once in each week for four successive

weeks or at least twice in each week for three successive weeks

perceding the original date fixed for the sale. If the publication is

for three weeks, such sale shall take place on any day on or after the

twenty-first day and on or before the twenty-eighth day after the day of

the first publication; and if the publication is for four weeks such

sale shall take place on any day on or after the twenty-eighth day and

on or before the thirty-fifth day after the day of the first

publication. Any period of seven successive days shall constitute a

week under this section.

(b) Where the property is situated wholly outside a city or an

incorporated village referred to in subparagraph (a) of this

subdivision, notice of such sale shall also be given by posting a copy

of the notice of sale at least twenty-eight days preceding the original

date fixed for the sale in three public places in the town in which the

property is located, and, if the sale is to be held in another town or

in a city, in three public places therein.

3. If the officer appointed to make such sale does not appear at the

time and place where such sale has been advertised to take place, the

attorney for the plaintiff may postpone or adjourn such sale not to

exceed four weeks, during which time such attorney may make application

to the court to have another person appointed to make such sale. Notice

of postponement of the sale shall be posted at least three days prior to

the postponed date in the same places as the original notice of sale

when posting of the notice of sale is required, and shall be published

once at least three days prior to the postponed date in the newspaper in

which the notice of sale was originally published.

4. The terms of the sale shall be made known at the sale, and if the

property or any part thereof is to be sold subject to the right of

dower, charge or lien, that fact shall be declared at the time of the

sale.

5. If the property consists of two or more distinct buildings, farms

or lots, they shall be sold separately, unless otherwise ordered by the

court; but where two or more buildings are situated in the same city

lot, they shall be sold together.

6. At any time within one year after the sale, but not thereafter, the

court, upon such terms as may be just, may set the sale aside for

failure to comply with the provisions of this section as to the notice,

time or manner of such sale if a substantial right of a party was

prejudiced by the defect.

Purchases by certain officers prohibited; penalty. No officer

making a sale as prescribed in section 231, or guardian of an infant

party, or any person for his benefit, directly or indirectly, shall

purchase or be interested in the purchase of any of the property sold;

except that a guardian, where he is lawfully authorized to do so, may

purchase for the benefit or in behalf of his ward. The violation of this

section is a misdemeanor; and a purchase made contrary to this section

is void.

Persons bound by judgment in certain actions. In an action

brought to recover a judgment affecting the title to, or the possession,

use or enjoyment of, real property, all the proceedings and the judgment

shall bind, in addition to the persons who are bound by the filing of a

notice of pendency of the action pursuant to law, all persons born

between the filing of the notice of pendency and the entry of judgment

who would have been bound by such proceedings if born after such

judgment.

Conveyance and record as evidence. 1. The certificate of the

acknowledgment or of the proof of a conveyance, or the record, or the

transcript of the record, of such a conveyance, is not conclusive, and

it may be rebutted, and the effect thereof may be contested, by a party

affected thereby.

2. If it appears that the acknowledgment or proof was taken upon the

oath of an interested or incompetent witness, the conveyance, or the

record or transcript of the record thereof, shall not be received in

evidence until its execution is established by other competent proof,

except in a case where the title to the land conveyed or affected by

such conveyance or instrument has passed to a subsequent purchaser for a

valuable consideration.

Presumption of possession from legal title. In an action to

recover real property or the possession thereof, the person who

establishes a legal title to the premises is presumed to have been

possessed thereof within the time required by law; and the occupation of

the premises by another person is deemed to have been under and in

subordination to the legal title unless the premises have been held and

possessed adversely to the legal title for ten years before the

commencement of the action.

Proof of ownership of unoccupied lands and timber thereon. In

all actions to recover the possession of, or otherwise to determine the

title to, or for trespass upon or injury to, unoccupied lands, timber,

trees, or underwood thereon, any party seeking such recovery or

determination may show an unbroken chain of title for twenty years, or

conveyance of the land to himself more than twenty years next preceding

the commencement of the action or the assertion of the defense or

counterclaim except in actions for trespass, and in actions for trespass

for twenty years next preceding the commission of the trespass or

injury, and such proof shall be presumptive evidence of ownership at the

times respectively of the commencement of such action or assertion of

the defense or counterclaim or commission of such trespass or injury.

Such presumption may be rebutted by any other or opposing party by

showing ownership of said lands, at the times respectively of the

commencement of the action or the commission of the trespass or injury,

in some person other than the party claiming ownership by virtue of such

presumption. In any such action wherein the state, or any county or any

state officer, board or commission shall be a party, evidence as

aforesaid shall not be deemed to create any presumption of ownership as

against said designated parties.

Proof of lost execution or writ after sheriff's sale of real

property. Whenever, upon the trial of an action, it shall appear that

at least ten years theretofore real property has been sold by a sheriff

for enforcement of the valid lien thereon of a duly docketed judgment,

and that a certificate of the sale has been duly made by the sheriff and

filed, and that a conveyance in completion of the purchase has been

executed and recorded, but that the execution or writ by virtue of which

the sale has so been made cannot be found in the office of the clerk

with whom the same should have been filed, then and in such case the

recital of or reference to such execution or writ contained in the said

certificate, or in the said conveyance, or in the record thereof, shall

be prima facie evidence of the said execution or writ and of the

issuance of the same as against any party whose claim of title is not

shown to have been accompanied or supported by peaceable possession of

the premises in controversy for at least three years immediately

preceding the commencement of the action.

Recitals as to heirships in conveyances. Hereafter, in any

special proceeding or action in any of the courts of this state, any

deed, mortgage, lease, release, power of attorney or other instrument

more than ten years old, executed for the purpose of transferring the

title to or interest in lands, tenements or hereditaments situated

within this state, which contains recitals that the grantors, grantees,

or either, or both, are the heirs at law of a prior owner of the title

or interest described in said instrument, or a survivor of a tenancy by

the entirety or joint tenancy, shall be presumptive evidence of said

heirship, or of such survivorship, as therein recited, if such

instrument be duly acknowledged or witnessed and proved in any manner

required or permitted at the date of the execution thereof, and be duly

recorded in any county where any part of the lands described therein

shall be located, or duly recorded in the office of the secretary of

state of the state of New York.

Recitals in judgments affecting title to real property as

evidence. In any action or special proceeding in any of the courts of

this state, a judgment, decree or order of any court of record, or made

by a judge of any court of record in this state, in any action affecting

the title of real property, which contains recitals that any acts were

done or proceedings had which were necessary to give to such court or

judge jurisdiction or power to grant such judgment, decree or order,

shall be presumptive evidence that such acts were duly performed or

proceedings duly had, if such judgment, decree or order shall have been

duly entered or filed in the office of the clerk of the county in which

the action or special proceeding was pending wherein such judgment,

decree or order was granted.

Evidence as to common lands in the city of New York. In any

action or special proceeding involving a question as to the situs of any

lot of the common lands, so-called, in the city of New York, the court

may, upon the offer of any party, receive in evidence any evidence which

was received in the action heretofore prosecuted in the superior court

of the city of New York, by Russell D. Miner, and continued by the

personal representatives of the same Russell D. Miner, deceased, against

the city of New York, or in the action in such court between certain

heirs at law of the same Russell D. Miner, deceased, and Jacob Scholle

and others, and also the deposition of Isaac T. Ludlam, deceased,

verified before E. Henry Lacombe, as referee, upon the fourteenth day of

November, eighteen hundred seventy-eight, in an action in such court by

Hester Sherman and others, against Thomas Kane and others; provided that

the testimony of a witness shall not be admissible, under the provisions

of this section until the court is satisfied that such witness has

heretofore died; and provided further, that no provision of this section

shall give to any documentary evidence introduced in connection with any

former testimony any greater or different effect than may be due to it

by reason of the testimony relative thereto. Such evidence may be

introduced in any mode established by the practice of the courts for the

introduction of testimony given upon a former trial, by a witness who

has since died, or by reading from the printed cases on appeal,

heretofore filed in the office of the clerk of the superior court of the

city of New York.

When interests are valued under this article. The following

interests shall be valued in the manner provided by this article: (a) an

interest in real property dependent as to value upon the duration of one

or more lives in being, whether such interest is present or future; and

(b) a future interest preceded only by one or more interests described

in clause (a); whenever 1. the owner of such interest is entitled to

receive a sum in gross in satisfaction of, or in compensation for

impairment of, his interest in real property which has been transformed

into a fund by judicial action or proceeding; or 2. ownership of real

property is divided into successive legal interests, including one or

more interests dependent as to value upon the duration of one or more

lives of persons in being, and the fraction of complete ownership

belonging to each partial owner must be ascertained so as to permit an

adjudication of the fraction of some new capital expenditure required

either for the payment of a mortgage, special assessment or other lien

upon such property, or for the satisfaction of an obligation imposed by

law as an incident of ownership; or 3. such valuation is necessary for

the final determination of some action or proceeding, other than an

action or proceeding for which the insurance law, the workmen's

compensation law or the tax law prescribes methods of valuation.

Interest rate. In all valuations made under this article, the

interest rate of four per centum, compounded annually, shall be employed

for all purposes.

Mortality and other tables. In all valuations made under this

article where such valuation depends upon the continuance of, or upon

the termination of a life or lives in being, the table of mortality

prescribed by section four thousand two hundred seventeen of the

insurance law for new, ordinary life policies shall be employed in the

manner required by accepted actuarial practice. If, in any case, such

table fails to provide required data, other tables accepted by actuarial

practice may be employed.

Evidence as to ancestry, health and habits of individual In all

valuations made under this article, no significance shall be given to

the ancestry, health or habits of the person whose life is involved.

Each valuation shall be based exclusively on the actuarial data.

Interest defeasible by remarriage. Whenever an interest is

defeasible on the remarriage of a person whose life is involved, this

fact of defeasibility may be taken into account in the valuation of any

such interest or of any interest subject thereto, if justice requires.

For this purpose, the Casualty Actuarial Society's Table on Remarriage

or other tables accepted by actuarial practice shall be employed.

Computation by superintendent of financial services. Any court,

judge, referee or other judicial or administrative officer by whom any

valuation under this article must be made is authorized to transmit to

the superintendent of financial services such statement of facts as is

necessary to permit the required computation, and such superintendent

shall thereupon make the computation and, without charge, certify the

same to the court or other officer submitting such statement. Any such

certificate shall be conclusive evidence that the method of computation

adopted therein is correct.

Adverse possession; defined. For the purposes of this article:

1. Adverse possessor. A person or entity is an "adverse possessor" of

real property when the person or entity occupies real property of

another person or entity with or without knowledge of the other's

superior ownership rights, in a manner that would give the owner a cause

of action for ejectment.

2. Acquisition of title. An adverse possessor gains title to the

occupied real property upon the expiration of the statute of limitations

for an action to recover real property pursuant to subdivision (a) of

section two hundred twelve of the civil practice law and rules, provided

that the occupancy, as described in sections five hundred twelve and

five hundred twenty-two of this article, has been adverse, under claim

of right, open and notorious, continuous, exclusive, and actual.

3. Claim of right. A claim of right means a reasonable basis for the

belief that the property belongs to the adverse possessor or property

owner, as the case may be. Notwithstanding any other provision of this

article, claim of right shall not be required if the owner or owners of

the real property throughout the statutory period cannot be ascertained

in the records of the county clerk, or the register of the county, of

the county where such real property is situated, and located by

reasonable means.

Adverse possession under written instrument or judgment. Where

the occupant or those under whom the occupant claims entered into the

possession of the premises under claim of right, exclusive of any other

right, founding the claim upon a written instrument, as being a

conveyance of the premises in question, or upon the decree or judgment

of a competent court, and there has been a continued occupation and

possession of the premises included in the instrument, decree or

judgment, or of some part thereof, for ten years, under the same claim,

the premises so included are deemed to have been held adversely; except

that when they consist of a tract divided into lots, the possession of

one lot is not deemed a possession of any other lot.

Essentials of adverse possession under written instrument or

judgment. For the purpose of constituting an adverse possession, founded

upon a written instrument or a judgment or decree, land is deemed to

have been possessed and occupied in any of the following cases:

1. Where there has been acts sufficiently open to put a reasonably

diligent owner on notice.

2. Where it has been protected by a substantial enclosure, except as

provided in subdivision one of section five hundred forty-three of this

article.

3. Where, although not enclosed, it has been used for the supply of

fuel or of fencing timber, either for the purposes of husbandry or for

the ordinary use of the occupant.

Where a known farm or a single lot has been partly improved, the

portion of the farm or lot that has been left not cleared or not

enclosed, according to the usual course and custom of the adjoining

country, is deemed to have been occupied for the same length of time as

the part improved and cultivated.

Adverse possession not under written instrument or judgment.

Where there has been an actual continued occupation of premises under a

claim of right, exclusive of any other right, but not founded upon a

written instrument or a judgment or decree, the premises so actually

occupied, and no others, are deemed to have been held adversely.

Essentials of adverse possession not under written instrument

or judgment. For the purpose of constituting an adverse possession not

founded upon a written instrument or a judgment or decree, land is

deemed to have been possessed and occupied in either of the following

cases, and no others:

1. Where there have been acts sufficiently open to put a reasonably

diligent owner on notice.

2. Where it has been protected by a substantial enclosure, except as

provided in subdivision one of section five hundred forty-three of this

article.

Adverse possession, how affected by relation of landlord and

tenant. Where the relation of landlord and tenant has existed, the

possession of the tenant is deemed the possession of the landlord until

the expiration of ten years after the termination of the tenancy; or,

where there has been no written lease, until the expiration of ten years

after the last payment of rent; notwithstanding that the tenant has

acquired another title or has claimed to hold adversely to his landlord.

But this presumption shall cease after the periods prescribed in this

section and such tenant may then commence to hold adversely to his

landlord.

Adverse possession, how affected by relation of tenants in

common. Where the relation of tenants in common has existed, the

occupancy of one tenant, personally or by his servant or by his tenant,

is deemed to have been the possession of the other, notwithstanding that

the tenant so occupying the premises has acquired another title or has

claimed to hold adversely to the other. But this presumption shall cease

after the expiration of ten years of continuous exclusive occupancy by

such tenant, personally or by his servant or by his tenant, or

immediately upon an ouster by one tenant of the other and such occupying

tenant may then commence to hold adversely to his cotenant.

Adverse possession; how affected by acts across a boundary

line. 1. Notwithstanding any other provision of this article, the

existence of de minimus non-structural encroachments including, but not

limited to, fences, hedges, shrubbery, plantings, sheds and

non-structural walls, shall be deemed to be permissive and non-adverse.

2. Notwithstanding any other provision of this article, the acts of

lawn mowing or similar maintenance across the boundary line of an

adjoining landowner's property shall be deemed permissive and

non-adverse.

Right of person to possession not affected by descent cast. The

right of a person to the possession of real property is not impaired or

affected by a descent being cast in consequence of the death of a person

in possession of the property.

Damages for withholding real property obtainable in action to

recover possession; set-off by defendant. In an action to recover the

possession of real property, the plaintiff may recover damages for

withholding the property, including the rents and profits or the value

of the use and occupation of the property for a term not exceeding six

years; but the damages shall not include the value of the use of any

improvements made by the defendant or those under whom he claims. Where

permanent improvements have been made in good faith by the defendant or

those under whom he claims, while holding, under color of title,

adversely to the plaintiff, the value thereof must be allowed to the

defendant in reduction of the damages of the plaintiff, but not beyond

the amount of those damages.

Where action cannot be maintained: dower; property not

exceeding six inches in width; by mortgagee. The action cannot be

maintained:

1. Where an action for dower may be maintained.

2. Where the real property consists of a strip of land not exceeding

six inches in width upon which there stands the exterior wall of a

building erected partly upon said strip and partly upon the adjoining

lot, and a building has been erected upon land of the plaintiff abutting

on the said wall, unless said action be commenced within one year after

the completion of the erection of such wall. But an action may be

maintained if commenced within the further period of one year, for the

recovery of damages by reason of the erection of such wall, and upon the

satisfaction of the judgment for such damages the title of the plaintiff

to such strip of land shall thereby be transferred to and vest in the

defendant. If an action for the recovery of real property or damages is

not brought within the period hereby limited therefor, the person in

possession of such lands shall be deemed to have an easement in said

strip of land so long as the said wall partly erected thereon shall

stand, and no longer, and in case of the destruction of such wall the

owner of such strip shall have the same right to take or recover the

possession thereof as if such wall had never existed.

3. By a mortgagee, or his assignee, or other representative.

Where action cannot be maintained; action based on reverter or

breach of condition subsequent. 1. Except as otherwise provided in this

section, an action to recover the possession of real property cannot be

maintained where it is founded upon a claim of reverter of an estate in

fee conveyed upon special limitation or founded upon a claim of breach

of a condition subsequent, other than a condition of a lease for a term

of years, unless (a) within ten years after the occurrence of the

reverter or the first occurrence of the breach, the plaintiff, or any

predecessor in interest then entitled to possession or to exercise the

power of termination, shall have served upon the person or persons

against whom the action might then have been commenced a written demand

that possession be delivered, stating the ground thereof, and the action

is commenced within one year thereafter or (b), if no such demand is

served, the action is commenced within such ten years.

2. Where the reverter or breach occurred before September 1, 1963, an

action may be maintained if demand is made as provided in this section

before the expiration of ten years computed from the occurrence of the

reverter or the first occurrence of the breach, or on or before

September 1, 1965, whichever is later, and the action is commenced

within one year thereafter or if, without previous demand as provided in

this section, the action is commenced before the expiration of ten years

computed from the occurrence of the reverter or the first occurrence of

the breach, or on or before September 1, 1965, whichever is later.

3. The demand shall be served either personally or by mailing the same

by certified mail addressed to the person or persons against whom the

action might then have been commenced, at his or their last known

address or addresses.

4. The demand may be made on behalf of an infant by his parent or

guardian or by the person with whom he resides, may be made on behalf of

an incompetent by the committee of his person or property, and may be

made on behalf of a conservatee by the conservator of his property. If

the person entitled to maintain the action shall have died, the demand

may be made either by the persons succeeding to the right of the

decedent, or one of them, or on their behalf by the personal

representative of the decedent.

5. The demand shall become ineffective unless action to recover

possession in accordance therewith is commenced within one year from the

date of service thereof. If no action is commenced, or no such demand is

served within the time specified in subdivisions 1 or 2, or if the

demand served becomes ineffective, it shall be conclusively presumed

that the possibility of reverter by reason of which the estate is

claimed to have reverted, or the power of termination for breach of the

condition which is claimed to have been broken, was extinguished at or

before the date when the reverter would have occurred or a right of

entry would have accrued by reason of such possibility of reverter or

breach of such condition.

6. The operation of this section is not affected by any disability, or

by the fact that the person against whom the action might have been

brought within the period herein provided was during that time a

non-resident or absent from the state, and is not affected by any lack

of knowledge on the part of any person that the reverter or breach has

occurred, unless it is established that the facts upon which the

reverter occurred, or the facts constituting the breach, were concealed

from the plaintiff or his predecessor in interest by actual fraud. If

such fraud be established, the time provided in subdivision 1 or 2 shall

commence to run when the facts are discovered by a person entitled to

serve the demand as provided in this section.

7. This section does not limit any other statute or rule of law or

equity by which a possibility of reverter or right of entry is or may be

extinguished or rendered unenforceable, or by which an action to recover

possession of the property may be extinguished or barred.

Separate action by joint tenant or tenant in common. Where two

or more persons are entitled to the possession of real property as joint

tenants or tenants in common, one or more of them may maintain the

action to recover his or their undivided shares in the property in any

case where such an action might be maintained by all.

Action by grantee of lands held adversely. The action shall be

maintained by a grantee, his executors, administrators or assigns in his

own name, although at the time of the conveyance, such real property was

in the actual possession of a person claiming under a title adverse to

that of the grantor.

Action by reversioner or remainderman after tenant's default.

Where a tenant for life or for a term of years suffers judgment to be

taken against him, by consent or by default, in an action to recover

real property, the heir or person owning the reversion or remainder, may

maintain an action to recover the property, after the determination of

the particular estate.

Defendants. Where the complaint demands judgment for the

immediate possession of the property, if the property is actually

occupied, the occupant shall be made defendant in the action. If it is

not so occupied, the action shall be brought against some person

exercising acts of ownership thereupon, or claiming title thereto or an

interest therein, at the time of the commencement of the action. Any

person claiming title to, or the right to the possession of, the real

property sought to be recovered, as landlord, remainderman, reversioner,

or otherwise adversely to the plaintiff, may be joined as defendant.

Action against co-tenant; ouster to be proved. Where the action

is brought by a tenant in common or a joint tenant against his

co-tenant, the plaintiff, besides proving his right, shall also prove

that the defendant actually ousted him or did some other act amounting

to a total denial of his right.

Action against occupants of apartments. In a case where two or

more defendants occupy different apartments in a building the plaintiff

is entitled to judgment jointly against all the defendants who are

liable to him.

Action against one defendant subject to rights of others.

Where one or more answering defendants hold under another defendant, and

the plaintiff elects to proceed against the latter, subject to the

rights and interests of the former, if the plaintiff recovers final

judgment against the defendant under whom they hold, the judgment

operates as a transfer to the plaintiff of that defendant's right, title

and interest.

Complaint. The complaint shall state the plaintiff's interest

in the property and describe it with reasonable certainty in such manner

that, from the description, possession of the property claimed may be

delivered.

Expiration of plaintiff's title before trial. If the right or

title of the plaintiff expires after the commencement of the action but

before the trial, and he would have been entitled to recover but for the

expiration, the verdict, report or decision shall be rendered according

to the fact; and the plaintiff is entitled nevertheless to judgment for

his damages for the withholding of the property to the time when his

right or title so expired.

Judgment to state plaintiff's estate. A verdict, report or

decision in favor of the plaintiff and the judgment rendered thereon,

shall specify in writing the estate of the plaintiff in the property

recovered, whether it is in fee, or for life, or for a term of years

stating for whose life it is, or specifying the duration of the term, if

the estate be less than a fee.

Liability of purchaser pending an action. If the defendant

aliens the real property in question after the filing of a notice of

pendency of the action, and an execution against him for the plaintiff's

damages is returned wholly or partly unsatisfied, an action may be

maintained by the plaintiff against any person who has been in

possession of the property, under the defendant's conveyance, to recover

the unsatisfied portion of the damages, for a time not exceeding that

during which he possessed the property.

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.

Rent in a residential dwelling. 1. In a proceeding relating to

a residential dwelling or housing accommodation, the term "rent" shall

mean the monthly or weekly amount charged in consideration for the use

and occupation of a dwelling pursuant to a written or oral rental

agreement. No fees, charges or penalties other than rent may be sought

in a summary proceeding pursuant to this article, notwithstanding any

language to the contrary in any lease or rental agreement.

2. This section shall not apply to a summary proceeding in which the

parties are a cooperative housing corporation, other than a cooperative

housing corporation subject to the provisions of article two, article

four, article five or article eleven of the private housing finance law,

and a tenant who is a dwelling unit owner or shareholder of such

corporation, provided that the proprietary lease or occupancy agreement

between the cooperative housing corporation and the tenant provides for

fees, charges, penalties or assessments other than rent to be

recoverable in such a proceeding.

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.

A tenant shall not include a squatter. For the purposes of this section,

a squatter is a person who enters onto or intrudes upon real property

without the permission of the person entitled to possession, and

continues to occupy the property without title, right or permission of

the owner or owner's agent or a person entitled to possession. In the

event of a conflict between the provisions regarding squatters of this

section and the provisions of subdivision three of section seven hundred

thirteen of this article, the provisions of section seven hundred

thirteen of this article shall be controlling. No tenant or lawful

occupant of a dwelling or housing accommodation shall 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 written demand of the

rent has been made with at least fourteen days' notice requiring, in the

alternative, the payment of the rent, or the possession of the premises,

has been served upon the tenant as prescribed in section seven hundred

thirty-five of this article. The fourteen-day notice shall append or

contain the notice required pursuant to section two hundred thirty-one-c

of the real property law, which shall state the following: (i) if the

premises are or are not subject to article six-A of the real property

law, the "good cause eviction law", and if the premises are exempt, such

notice shall state why the premises are exempt from such law; (ii) if

the landlord is not renewing the lease for a unit subject to article

six-A of the real property law, the lawful basis for such non-renewal;

and (iii) if the landlord is increasing the rent upon an existing lease

of a unit subject to article six-A of the real property law above the

applicable local rent standard, as defined in subdivision eight of

section two hundred eleven of the real property law, the justification

for such increase. Any person succeeding to the landlord's interest in

the premises may proceed under this subdivision for rent due such

person's predecessor in interest if such person has a right thereto.

Where a tenant dies during the term of the lease and rent due has not

been paid and the apartment is occupied by a person with a claim to

possession, a proceeding may be commenced naming the occupants of the

apartment seeking a possessory judgment only as against the estate.

Entry of such a judgment shall be without prejudice to the possessory

claims of the occupants, and any warrant issued shall not be effective

as against the occupants.

* NB Effective until June 15, 2034

* 2. The tenant has defaulted in the payment of rent, pursuant to the

agreement under which the premises are held, and a written demand of the

rent has been made with at least fourteen days' notice requiring, in the

alternative, the payment of the rent, or the possession of the premises,

has been served upon him as prescribed in section seven hundred

thirty-five of this article. 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 the

apartment is occupied by a person with a claim to possession, a

proceeding may be commenced naming the occupants of the apartment

seeking a possessory judgment only as against the estate. Entry of such

a judgment shall be without prejudice to the possessory claims of the

occupants, and any warrant issued shall not be effective as against the

occupants.

* NB Effective June 15, 2034

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.

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. Subject to the rights and obligations set forth in section thirteen

hundred five of this chapter, 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.

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.

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, 230.06, 230.11, 230.12, 230.13,

230.20, 230.25, 230.30, 230.32 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.

Grounds and procedure for removal of commercial tenants for

unlicensed cannabis retail sale. 1. 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, or the cannabis control

board, office of cannabis management or the attorney general pursuant to

section one hundred thirty-eight-a of the cannabis law, may serve

personally upon the owner or landlord of real property authorized or

otherwise intended or advertised, in whole or part, for use to buy, sell

or otherwise provide goods or services, or for other business,

commercial, professional services or manufacturing activities, or upon

their agent, a written notice requiring the owner or landlord to make an

application for the removal of a commercial tenant so using or occupying

the same for a violation of article two hundred twenty-two of the penal

law or article six of the cannabis law involving the unlicensed sale of

cannabis or products marketed or labeled as such. If the owner or

landlord or their agent does not make such application within five days

thereafter; or, having made it, does not in good faith diligently

prosecute it, the 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 them and not prosecuted diligently and

in good faith. An enforcement agency authorized to bring a petition

hereunder may do so on their own initiative or upon a referral from an

agency of the state or a subdivision thereof. The person in possession

of the property, as well as any lessee or sublessee and the owner or

landlord shall be made respondents in the proceeding.

2. A court, upon a finding of such violation may, in addition to any

other order provided by law:

(a) grant a petition pursuant to this section ordering the immediate

removal of such tenant;

(b) impose and require the payment by any respondent not otherwise

subject to a civil penalty under section sixteen or one hundred

twenty-five of the cannabis law, who has been found to have knowingly

permitted such a violation, a civil penalty not exceeding five times the

amount of rent charged, owed, or paid, as the case may be, for the

duration of the violation, which may be calculated from the date the

owner or landlord respondent received notice of the violation to the

date the unlicensed activity is abated, for which a respondent shall be

required to provide sufficient proof thereof, including but not limited

to a sworn statement by a local law enforcement or other governmental

entity that the unlicensed activity has been abated; provided, however,

that in a city with a population of over one million the civil penalty

shall be fifty thousand dollars. The landlord or property owner shall

also provide a copy of any executed lease with such tenant;

(c) order the payment of reasonable attorneys fees and the costs of

the proceeding to the petitioner; and

(d) order that any such multiple respondents shall be jointly and

severally liable for any payment so ordered under this subdivision.

3. 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 themselves or a court and

require that any books, records, documents or papers relevant or

material to the inquiry be turned over to them for inspection,

examination or audit, pursuant to the civil practice law and rules.

4. The use or occupancy of premises customarily or habitually for the

unlicensed retail sale of cannabis or products marketed or labeled as

such shall constitute an illegal trade, manufacture, or other business

for the purposes of section two hundred thirty-one of the real property

law.

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.

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.

3. In the city of New York, when the petitioner seeks to make an

application pursuant to subdivision two of section seven hundred

forty-five of this article, the notice of petition shall advise the

respondent of the requirements of subdivision two of section seven

hundred forty-five of this article.

4. In an action premised on a tenant defaulting in the payment of

rent, payment to the landlord of the full amount of rent due, when such

payment is made at any time prior to the hearing on the petition, shall

be accepted by the landlord and renders moot the grounds on which the

special proceeding was commenced.

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 ten 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, except as provided in section seven hundred

fifty-three of this article.

3. If the respondent fails to answer within ten 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, except as

provided in section seven hundred fifty-three of this article.

4. The notice of petition shall advise the respondent of the

requirements of subdivisions 1, 2 and 3, above.

Time of service; order to show cause. 1. Except as provided in

section seven hundred thirty-two of this article, relating to a

proceeding for non-payment of rent, the notice of petition and petition

shall be served at least ten and not more than seventeen 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.

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.

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.

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.

* 5-a. Append or incorporate the notice required pursuant to section

two hundred thirty-one-c of the real property law, which shall state the

following: (i) if the premises are or are not subject to article six-A

of the real property law, the "good cause eviction law", and if the

premises are exempt, such petition shall state why the premises are

exempt from such law; (ii) if the landlord is not renewing the lease for

a unit subject to article six-A of the real property law, the lawful

basis for such non-renewal; and (iii) if the landlord is increasing the

rent upon an existing lease of a unit subject to article six-A of the

real property law above the applicable local rent standard, as defined

in subdivision eight of section two hundred eleven of the real property

law, the justification for such increase.

* NB Repealed June 15, 2034

* 5-b. If the petitioner claims exemption from the provisions of

article six-A of the real property law pursuant to subdivision one of

section two hundred fourteen of the real property law, append or

incorporate the information required pursuant to subdivision one of

section two hundred fourteen of the real property law.

* NB Repealed June 15, 2034

6. In the city of Albany, where the premises from which removal is

sought is subject to a local law requiring the registration of said

premises as a condition of legal rental, allege proof of compliance with

such local law.

7. In the city of Newburgh, where the premises from which removal is

sought is subject to a local law requiring the registration of said

premises as a condition of legal rental, allege proof of compliance with

such local law.

8. In the city of Syracuse, where the premises from which removal is

sought is subject to a local law requiring the registration of said

premises as a condition of legal rental, allege proof of compliance with

such local law.

9. In the city of Schenectady, where the premises from which removal

is sought is subject to a local law requiring the registration of said

premises as a condition of legal rental, allege proof of compliance with

such local law.

Answer. Except as provided in section seven hundred thirty-two

of this article, 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

recorded by the clerk or, if a particular court has no clerk, by the

presiding judge or justice of such court, and maintained in the case

record. 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.

Eviction based on domestic violence victim status prohibited.

1. A tenant shall not be removed from possession of a residential unit

pursuant to this article because of such person's domestic violence

victim status, as defined in section two hundred twenty-seven-d of the

real property law. It shall be a defense to a proceeding to recover

possession of a residential unit that a landlord seeks such recovery

because of a person's domestic violence victim status, and that, but for

such status, the landlord would not seek to recover possession. A

landlord may rebut such defense by showing that he or she seeks to

recover possession of a residential unit because of any other lawful

ground.

2. Nothing in this section shall restrict a landlord's legal rights to

recover possession of a residential unit on grounds not based on or

derived from domestic violence victim status.

3. A landlord shall not be civilly liable to other tenants, guests,

invitees, or licensees arising from reasonable and good faith efforts to

comply with this section.

4. This section shall not apply to buildings used for dwelling

purposes that are owner occupied and have two or fewer residential

units.

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.

Stipulations. 1. In any proceeding under this article, if a

stipulation is made, on the occasion of a court appearance in the

proceeding, setting forth an agreement between the parties, other than a

stipulation solely to adjourn or stay the proceeding, and either the

petitioner or the respondent is not represented by counsel, the court

shall fully describe the terms of the stipulation to that party on the

record.

2. No stipulation required to be on the record by subdivision one of

this section may be approved by the court unless the court first

conducts an allocution on the record that shall, at a minimum, find the

following:

(a) the identity of the parties and whether all necessary parties have

been named in the proceeding;

(b) the authority of the signatory to the stipulation if the named

party is not present; and

(c) shall further find:

(i) that the unrepresented party understands that he or she may try

the case if he or she does not agree with the proposed stipulation or if

an acceptable stipulation cannot be negotiated;

(ii) where the other party is represented, whether the party's

attorney inappropriately gave legal advice to the unrepresented litigant

or whether the unrepresented litigant is agreeing to the proposed

stipulation as a result of undue duress;

(iii) whether the unrepresented respondent agrees with or contests any

allegation in the petition and predicate notices;

(iv) that the unrepresented party is aware of and understands claims

or defenses he or she may have in the proceeding and is aware of the

available options in light of those claims or defenses, especially where

the stipulation provides for a surrender of the dwelling unit or the

conversion of a nonpayment proceeding into a holdover proceeding;

(v) that the unrepresented litigant's claims or defenses are

adequately addressed in the stipulation;

(vi) that the unrepresented party understands and agrees to the terms

of the stipulation;

(vii) that the unrepresented party understands the effect of

non-compliance with the terms of the stipulation by either side and what

the deadlines and procedures are for addressing such non-compliance,

including how to restore the case to the court calendar to obtain relief

under or from the stipulation;

(viii) in all non-payment cases, including where the unrepresented

party indicates that he or she intends to apply for public assistance

benefits or to a charity to pay rent that is sought in the proceeding

and that the court has determined to be owing to the petitioner, that an

appropriate rent breakdown is included in the stipulation; and

(ix) that the unrepresented party understands the implications of a

judgment against him or her and the legal requirement that the

petitioner provide a satisfaction of judgment upon payment.

3. The court may use a court attorney to conference a case to

determine the unrepresented party's claims or defenses and his or her

understanding of all available options in light of those claims or

defenses, or any of the other elements of the allocution required by

this section. However, such conference may not substitute for an

allocution by the court and, where it is used, the results shall be

reported to the court, which shall note on the record that such

conference occurred.

4. Notwithstanding the foregoing, where the court, in its discretion,

determines that, in the interests of justice, inclusion in the

allocution required by subdivision two of this section of one or more

findings described in paragraph (c) of such subdivision is or are not

necessary given the history of the case, prior appearances or other

factors, excluding a court attorney conference provided for in

subdivision three above, such finding or findings may be omitted and the

reason for such omission shall be set forth on the record.

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.

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, stating

the earliest date upon which execution may occur pursuant to the order

of the court, and commanding the officer to remove all persons named in

the proceeding, provided upon a showing of good cause, the court may

issue a stay of re-letting or renovation of the premises for a

reasonable period of time.

2. (a) The officer to whom the warrant is directed and delivered shall

give at least fourteen days' 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 on a business day between the hours of sunrise and sunset.

(b) Such officer shall check such property for the presence of a

companion animal prior to executing such warrant and coordinate with

such person or persons to be evicted or dispossessed to provide for the

safe and proper care of such companion animal or animals. If such

persons to be evicted or dispossessed cannot be found after reasonable

efforts are made to coordinate with such persons, or if such person is

found and declines to take possession of such animal or animals, such

officer shall promptly coordinate with the duly incorporated humane

society, duly incorporated society for the prevention of cruelty to

animals or pound maintained by or under contract or agreement with the

municipality in which the animal was found for the safe removal of such

companion animal or animals. Such officer shall make reasonable efforts

to provide notice to the person or persons to be evicted regarding the

location of such companion animal or animals. Disposition of such

companion animal or animals shall be in accordance with the provisions

of sections one hundred seventeen and three hundred seventy-four of the

agriculture and markets law, and all other laws, rules and regulations

that govern the humane treatment of animals. "Companion animal," as used

in this paragraph, shall have the same meaning as provided in

subdivision five of section three hundred fifty of the agriculture and

markets law.

3. Nothing contained herein shall deprive the court of the power to

stay or vacate such warrant for good cause shown prior to the execution

thereof, or to restore the tenant to possession subsequent to execution

of the warrant. In a judgment for non-payment of rent, the court shall

vacate a warrant upon tender or deposit with the court of the full rent

due at any time prior to its execution, unless the petitioner

establishes that the tenant withheld the rent due in bad faith.

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.

* § 749-a. New York city marshals. A marshal of the city of New York

shall provide notice of execution of a warrant of eviction by physical

posting of the notice and by an electronic filing. For purposes of this

section, "electronic filing" shall mean an electronic filing as

described in section twenty-one hundred three-a of the New York city

civil court act.

* NB Repealed June 30, 2028

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.

Stay in premises occupied for dwelling purposes. 1. In a

proceeding to recover the possession of premises occupied for dwelling

purposes, other than a room or rooms in an hotel, lodging house, or

rooming house, 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 one year, 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 the applicant and

that the applicant made due and reasonable efforts to secure such other

premises, or that by reason of other facts it would occasion extreme

hardship to the applicant or the applicant's family if the stay were not

granted. In determining whether refusal to grant a stay would occasion

extreme hardship, the court shall consider serious ill health,

significant exacerbation of an ongoing condition, a child's enrollment

in a local school, and any other extenuating life circumstances

affecting the ability of the applicant or the applicant's family to

relocate and maintain quality of life. The court shall consider any

substantial hardship the stay may impose on the landlord in determining

whether to grant the stay or in setting the length or other terms of the

stay. In an application brought outside a city of one million or more,

the term "neighborhood" shall be construed to mean (i) the same town,

village or city where the applicant now resides, or (ii) if the

applicant has school aged children residing with him or her,

"neighborhood" shall mean the school district where such children attend

or are eligible to attend.

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 the

applicant was liable as rent for the month immediately prior to the

expiration of the applicant's 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 may 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 the landlord's 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 to

recover possession upon the ground that an occupant is holding over and

is objectionable if the landlord shall establish by competent evidence

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 thirty 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.

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 wilful 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

wilful act of the tenant or defendant, such costs, however, not to

exceed the sum of twenty-five dollars.

Stay of summary proceedings or actions for rent under certain

conditions. In the event that utilities are discontinued in any part of

a dwelling because of the failure of the landlord or other person having

control of said 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

dwelling pays the amount owing for said utilities and until such time as

the utilities are restored to working order.

Stay of action or proceeding when a party's claim to title is

in dispute. 1. (a) A federal, state or local government agency may move

for a stay of any proceeding to recover possession of or quiet title to

real property relating to a residential dwelling unit or property, based

on a pending good faith investigation into the theft or fraud in the

title to, or the financing of, the premises that is the subject of any

proceeding. Upon the agency's showing of the pendency of a good faith

investigation, the court shall issue a stay of the proceeding, including

staying execution of a warrant of eviction or enforcement of a judgment

so long as the investigation is ongoing.

(b) Every six months, the court shall schedule a status conference

with the government agency and any other parties to the action to review

any stay and to determine if the investigation is still continuing in

good faith and shall continue the stay of the proceeding until the

government investigation is closed. If it should deem necessary, a court

may review any supporting documents filed by the government agency in

camera and to be filed under seal if deemed necessary by the government

agency.

2. The court shall stay all proceedings to recover possession of or

quiet title to real property relating to a residential dwelling unit or

property, where a charging instrument is filed against a party to such

proceeding for deed theft, larceny, offering a false instrument for

filing, criminal possession of stolen property or any other law

asserting theft or fraud in obtaining title to property and said

charging instrument relates to the premises that are the subject of such

proceeding. The stay shall remain in effect until resolution of such

criminal action.

3. The court shall stay all proceedings to recover possession of or

quiet title to real property relating to a residential dwelling unit or

property, where a federal, state or local government agency has

commenced a civil action or proceeding relating to the theft or fraud in

the title to, or the financing of, the premises that are the subject of

such proceeding.

4. The court shall stay all proceedings under section seven hundred

eleven or seven hundred thirteen of this article for ninety days to

allow a party to file a complaint in the appropriate forum when the

court makes a determination that there is a bona fide dispute between

parties purporting to own the property that is the subject of the

proceeding.

(a) A rebuttable presumption that a bona fide dispute to title exists

shall be created when the party disputing petitioner's title, owns or

owned the property that is the subject of the court proceeding during

the last three years, or is a person interested in the property, as

defined by section one hundred three of the surrogate's court procedure

act.

(b) A party may seek an additional stay of the proceeding beyond the

initial ninety day stay by the court if they were unable to file a

complaint or seek a stay from another forum. In extending the stay, the

court shall consider, without limitation, the totality of the

circumstances including steps the parties have taken to resolve the

dispute, the harm to the parties of a further stay, and the ability of

the parties to advocate for themselves or retain counsel.

(c) This section shall not apply to any proceeding commenced pursuant

to subdivision ten of section seven hundred thirteen of this article.

5. Nothing in this section shall diminish the court's own discretion

to further stay a proceeding in the interests of justice.

6. Nothing in this section shall limit a party from seeking relief,

including a stay of a proceeding under this article, in another court.

7. For purposes of this section, a proceeding to recover possession of

or quiet title to real property shall include any proceeding under

section seven hundred eleven or seven hundred thirteen of this article,

an ejectment action or a writ of assistance pursuant to section two

hundred twenty-one of this chapter, a foreclosure action, an action to

enforce a mortgage note, or any other action affecting title to or

encumbrance upon real property, or any other judicial or administrative

proceeding to recover possession of or quiet title to real property.

8. For purposes of this section, a party shall include:

(a) a corporation, limited liability company, partnership or other

entity where a charging instrument has been filed against an individual

who has a financial or controlling interest in the entity that holds

title to the property; or

(b) where a charging instrument has been filed against a seller of the

property, including an individual or corporation, limited liability

company, partnership or other entity, or where a charging instrument has

been filed against an individual who has a financial or controlling

interest in the entity that sold the property.

Eviction as the result of foreclosure. In the event that a

lessee is removed from real property pursuant to this article, and the

leased real property was the subject of a foreclosure proceeding

pursuant to this chapter or the subject of a tax foreclosure proceeding,

the court records relating to any such lessee shall be sealed and be

deemed confidential. No disclosure or use of such information relating

to any such lessee shall be authorized, and the use of such information

shall be prohibited.

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.

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.

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.

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.

Unlawful eviction. 1. (a) It shall be unlawful for any person

to evict or attempt to evict an occupant of a dwelling unit who has

lawfully occupied the dwelling unit for thirty consecutive days or

longer or who has entered into a lease with respect to such dwelling

except to the extent permitted by law pursuant to a warrant of eviction

or other order of a court of competent jurisdiction or a governmental

vacate order by:

(i) using or threatening the use of force to induce the occupant to

vacate the dwelling unit; or

(ii) engaging in a course of conduct which interferes with or is

intended to interfere with or disturb the comfort, repose, peace or

quiet of such occupant in the use or occupancy of the dwelling unit, to

induce the occupant to vacate the dwelling unit including, but not

limited to, the interruption or discontinuance of essential services; or

(iii) engaging or threatening to engage in any other conduct which

prevents or is intended to prevent such occupant from the lawful

occupancy of such dwelling unit or to induce the occupant to vacate the

dwelling unit including, but not limited to, removing the occupant's

possessions from the dwelling unit, removing the door at the entrance to

the dwelling unit; removing, plugging or otherwise rendering the lock on

such entrance door inoperable, or changing the lock on such entrance

door without supplying the occupant with a key.

(b) It shall be unlawful for an owner of a dwelling unit to fail to

take all reasonable and necessary action to restore to occupancy an

occupant of a dwelling unit who either vacates, has been removed from or

is otherwise prevented from occupying a dwelling unit as the result of

any of the acts or omissions prescribed in paragraph (a) of this

subdivision and to provide to such occupant a dwelling unit within such

dwelling suitable for occupancy, after being requested to do so by such

occupant or the representative of such occupant, if such owner either

committed such unlawful acts or omissions or knew or had reason to know

of such unlawful acts or omissions, or if such acts or omissions

occurred within seven days prior to such request.

2. Criminal and civil penalties. (a) Any person who intentionally

violates or assists in the violation of any of the provisions of this

section shall be guilty of a class A misdemeanor. Each such violation

shall be a separate and distinct offense.

(b) Such person shall also be subject to a civil penalty of not less

than one thousand nor more than ten thousand dollars for each violation.

Each such violation shall be a separate and distinct offense. In the

case of a failure to take all reasonable and necessary action to restore

an occupant pursuant to paragraph (b) of subdivision one of this

section, such person shall be subject to an additional civil penalty of

not more than one hundred dollars per day from the date on which

restoration to occupancy is requested until the date on which

restoration occurs, provided, however, that such period shall not exceed

six months.

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.

Grounds for the proceeding. 1. One-third or more of the tenants

occupying a dwelling located in the city of New York or the commissioner

of the department of the city of New York charged with enforcement of

the housing maintenance code of such city, or in the counties of Nassau,

Suffolk, Rockland and Westchester may maintain a special proceeding as

provided in this article, upon the ground that there exists in such

dwellings or in any part thereof a lack of heat or of running water or

of light or of electricity or of adequate sewage disposal facilities, or

any other condition dangerous to life, health or safety, which has

existed for five days, or an infestation by rodents, or any combination

of such conditions; or 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, or the

issuance of an order to the owner of such dwelling by the commissioner

of such department of the city of New York pursuant to the alternative

enforcement program under section 27-2153 of the administrative code of

the city of New York, provided that such dwelling has not been

discharged from the program pursuant to such section and there has not

been a determination that the owner has substantially complied with such

order.

2. If the proceeding is instituted by the commissioner of the

department of the city of New York charged with enforcement of the

housing maintenance code of such city, one-third or more of the tenants

may, at any time thereafter during the pendency of the proceeding or

after final judgment pursuant to section seven hundred seventy-six or

seven hundred seventy-seven of this article, petition for substitution

of themselves in place and stead of such commissioner of such

department. Such substitution shall be ordered by the court unless good

reason to the contrary shall be shown.

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 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 seventy-eight of this article, and 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 that 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 owner

of such dwelling last registered with the department of housing

preservation and development of such city pursuant to article forty-one

of chapter twenty-six of the administrative code of the city of New York

and in Nassau, Suffolk, Rockland and Westchester counties upon the

person set forth as the owner on the last recorded deed to the rented

property and upon every mortgagee and lienor of record, and upon the

city of New York, 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. Manner of service. 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. Service upon the city of New York shall be made by personal

delivery to the commissioner of the city department charged with

enforcement of the housing maintenance code of such city, or to an agent

duly authorized to accept such service on his behalf. If service cannot

with due diligence be made within the city upon an owner, mortgagee or

lienor of record in such manner, it shall be made:

(1) upon the owner last registered with the department of housing

preservation and development pursuant to article forty-one of chapter

twenty-six of the administrative code of the city of New York and in

Nassau, Suffolk, Rockland and Westchester counties upon the person set

forth as the owner on the last recorded deed to the rented property by

delivering to and leaving personally with the person designated pursuant

to article forty-one of chapter twenty-six of such code as managing

agent of the subject dwelling, and in Nassau, Suffolk, Rockland and

Westchester counties upon the person designated as the managing agent of

the rented property if one shall have been designated, a copy of the

notice of petition and petition;

(2) 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 designated pursuant to

article forty-one of chapter twenty-six of the administrative code of

the city of New York as managing agent of the subject dwelling and in

Nassau, Suffolk, Rockland and Westchester counties 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 last

address registered by him with the department of housing preservation

and development or, in the absence of such registration, to the address

set forth in the last recorded deed with respect to such premises.

6. Notice to non-petitioning tenants. 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.

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 lack of heat or of

running water or of light or electricity or of 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 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 they

constitute one-third or more of the tenants of said dwelling in

occupancy thereof.

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.

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.

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.

However, 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.

Defenses. It shall be a sufficient defense to the proceeding,

if the owner or any mortgagee or lienor of record establish that:

a. 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

b. Such condition or conditions has 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

c. Any tenant or resident of the dwelling has refused entry to the

owner or his agent to a portion of the premises for the purpose of

correcting such condition or conditions.

Judgment. 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 seventy-five of this article; or

b. Directing that (1) 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 seventy-eight of this article; (2) any rents to

become due in the future from all tenants occupying such dwelling shall

be deposited with such administrator as they fall due; (3) 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 (4) 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 granting such other and further relief as to the court may

seem just and proper. A certified copy of such judgment shall be served

personally upon each non-petitioning tenant occupying such dwelling and

upon the city of New York by service as provided in subdivision five of

section seven hundred seventy-one of this article. If personal service

on any such non-petitioning tenant cannot be made with due diligence,

service on such tenant shall be made by affixing a certified copy of

such judgment on the entrance door of such tenant's apartment, store or

other unit and, in addition, within one day after such affixing, by

sending a certified copy thereof by registered mail, return receipt

requested, to such tenant. Any right of the owner of such dwelling to

collect such rent moneys from any petitioning tenant of such dwelling on

or after the date of entry of such judgment, and from any

non-petitioning tenant of such dwelling on or after the date of service

of such judgment on such non-petitioning tenant as herein provided,

shall be void and unenforceable to the extent that such petitioning or

non-petitioning tenant, as the case may be, has deposited such moneys

with the administrator in accordance with the terms of such judgment,

regardless of whether such right of the owner arises from a lease,

contract, agreement or understanding heretofore or hereafter made or

entered into or arises as a matter of law from the relationship of the

parties or otherwise. It shall be a valid defense in any action or

proceeding against any such tenant to recover possession of real

property for the non-payment of rent or for use or occupation to prove

that the rent alleged to be unpaid was deposited with the administrator

in accordance with the terms of a judgment entered under this section.

Application by mortgagee or lienor of record or other person

having an interest in the property. a. If, after a trial, the court

shall determine that the facts alleged in the petition have been

affirmatively established by the petitioners, that no defense thereto

specified in section seven hundred seventy-five of this article has been

affirmatively established by the owner or a mortgagee or lienor of

record, and that the facts alleged in the petition warrant the granting

of the relief sought, and if the owner or any mortgagee or lienor of

record or other person having an interest in the property, shall apply

to the court to be permitted to remove or remedy the conditions

specified in such petition and shall (1) demonstrate the ability

promptly to undertake the work required; and (2) post security for the

performance thereof within the time, and in the amount and manner,

deemed necessary by the court, then the court, in lieu of rendering

judgment as provided in section seven hundred seventy-six of this

article, may issue an order permitting such person to perform the work

within a time fixed by the court but in no event more than sixty days

from the date of the order of the court unless the court grants an

extension of time for good cause shown. The provisions of this

subdivision shall only be available to the mortgagee or lienor once with

respect to any petition filed pursuant to this article.

b. If, after the issuance of an order pursuant to subdivision a of

this section, but before the time fixed in such order for the completion

of the work prescribed therein, it shall appear to the petitioners that

the person permitted to do the same is not proceeding with due

diligence, the petitions may apply to the court on notice to those

persons who have appeared in the proceeding for a hearing to determine

whether judgment should be rendered immediately as provided in

subdivision c of this section.

c. If, upon a hearing authorized in subdivision b hereof, the court

shall determine that such owner, mortgagee, lienor or other person is

not proceeding with due diligence, or upon the failure of such owner,

mortgagee, lienor or other person to complete the work in accordance

with the provisions of said order, the court shall render a final

judgment appointing an administrator as authorized in section seven

hundred seventy-eight of this article. Such judgment shall direct the

administrator to apply the security posted by such person to the

removing or remedying of the condition or conditions specified in the

petition. In the event that the amount of such security should be

insufficient for such purpose, such judgment shall direct the deposit of

rents with the administrator, as authorized by section seven hundred

seventy-six of this article, to the extent of such deficiency. In the

event that such security should exceed the amount required to remove or

remedy such condition or conditions, such judgment shall direct the

administrator to file with the court, upon completion of the work

prescribed therein, a full accounting of the amount of such security and

the expenditures made pursuant to such judgment, and to turn over such

surplus to the person who posted such security, together with a copy of

such accounting.

Appointment of administrator. 1. The court is authorized and

empowered, in implementation of a judgment rendered pursuant to section

seven hundred seventy-six or seven hundred seventy-seven of this

article, to appoint a person other than the owner, a mortgagee or

lienor, to receive and administer the rent moneys or security deposited

with such owner, mortgagee or lienor, subject to the court's direction.

The court may appoint the commissioner of the department of the city of

New York charged with enforcement of the housing maintenance code of

such city or the commissioner's designee as such administrator, provided

that the commissioner or the commissioner's designee shall consent, in

writing, to such appointment. Any administrator is authorized and

empowered in accordance with the direction of the court, to order the

necessary materials, labor and services to remove or remedy the

conditions specified in the judgment, and to make disbursements in

payment thereof; and to demand, collect and receive the rents from the

tenants; and to institute all necessary legal proceedings including, but

not limited to, summary proceedings for the removal of any tenant or

tenants; and to rent or lease for terms not exceeding three years any

part of said premises, however, the court may direct the administrator

to rent or lease commercial parts of said premises for terms that the

court may approve. In addition, such administrator is authorized and

empowered in accordance with the direction of the court to accept and

repay such moneys as may be received from the department charged with

enforcement of the housing maintenance code of the city of New York for

the purpose of managing the premises, replacing or substantially

rehabilitating systems or making other repairs or capital improvements

authorized by the court. All moneys expended by the department pursuant

to the foregoing shall constitute a debt recoverable from the owner and

a lien upon the building and lot, and upon the rents and other income

thereof. Such lien shall be enforced in accordance with the provisions

of article eight of subchapter five of the housing maintenance code of

the city of New York. Such administrator, shall, upon completion of the

work prescribed in such judgment, file with the court a full accounting

of all receipts and expenditures for such work. Such administrator shall

dispose of the rents and other monies deposited with such administrator

according to the following order of priority:

(a) Payment in full for all of the work specified in the judgment.

Until all of the work specified in the judgment has been completed and

payment for such work has been made, no other disbursements shall be

permitted, except for fuel bills, fire and liability insurance, and

bills for ordinary repairs and maintenance.

(b) Payment of a reasonable amount for the services of such

administrator, including reimbursement of any legal fees incurred by

such administrator in connection with management of the building.

(c) Payment of outstanding real property tax liens claimed by the city

of New York.

(d) Payment of outstanding emergency repair liens filed and recorded

by the city of New York and outstanding liens filed and recorded by the

city pursuant to this section.

(e) Payment to the owner of any surplus remaining after payments of

paragraphs (a) through (d) of this subdivision have been made.

2. Unless the administrator is the city of New York, the court may

allow from the rent moneys or security on deposit a reasonable amount

for services of such administrator.

3. Unless such administrator is the city of New York, the

administrator so appointed shall furnish a bond, the amount and form of

which shall be approved by the court. In its discretion and for good

cause shown, the court may dispense with the necessity for a bond. The

cost of a required bond shall be paid from the moneys so deposited.

4. Such administrator shall file a transcript of the judgment

appointing him with the county clerk within fifteen days of his

appointment.

5. The duties of such administrator shall not be affected by the

appointment of a receiver in an action to foreclose a mortgage on the

premises, except that the rights of the owner, including the right to

any surplus, pursuant to paragraph (e) of subdivision one of this

section, shall pass to the receiver. The court in which the action to

foreclose a mortgage on the premises is pending may appoint such

administrator to serve as receiver in that action in addition to his

duties as administrator pursuant to this article.

6. Such administrator shall be liable only in his or her official

capacity for injury to persons and property by reason of conditions of

the premises in a case where an owner would have been liable; he or she

shall not have any liability in his or her personal capacity.

Appointment of an administrator pursuant to subdivision one of this

section shall not relieve an owner of liability for injury to persons

and property in such case.

7. No city or county specified in section seven hundred sixty-nine of

this article shall be liable to any party, including such administrator

or the owner, for injury to persons or property by reason of conditions

of the premises or the acts or omissions of such administrator, except

that when the city of New York is appointed administrator, liability

shall be determined in accordance with subdivision six of this section.

8. The commissioner of the department of the city of New York charged

with the enforcement of the housing maintenance code of such city shall

promulgate rules and regulations regarding criteria for the selection of

administrators to be appointed pursuant to this section and shall

establish and maintain a list of persons approved by such department.

Unless the administrator is the city of New York, any person appointed

as an administrator within such city shall be selected from among the

persons approved as administrators pursuant to such list.

9. Such administrator shall, within thirty days of appointment, file

with the court a plan for the provision of essential services and for

the correction of such other hazardous conditions as may exist at the

premises, specifying dates by which such services shall be provided and

such conditions corrected. If such administrator cannot provide such

services and correct such conditions by the dates specified in the plan,

he shall be required to file with the court an amendment to the plan

setting forth the reasons why such services and corrections could not be

provided by such date and specifying new dates for such services and

corrections. Such plan and any amendments to such plan shall be provided

to the tenants by mail or by posting in a common area of the building

and to the owner of record by mail.

* 10. (a) Where a building for which an administrator has been

appointed pursuant to this section is transferred to a new owner at any

time following the appointment of such administrator, whether or not

such building remains subject to such administrator, the department

charged with enforcement of the housing maintenance code of the city of

New York may enter into a regulatory agreement with such new owner. Such

regulatory agreement may impose such terms and conditions upon the

operation and repair of such building as such department may determine.

Notwithstanding any general, special or local law to the contrary, such

regulatory agreement may provide that, upon transfer of such building to

the new owner, any outstanding liens filed with and recorded by the city

pursuant to this section or pursuant to section three hundred nine of

the multiple dwelling law shall immediately be reduced to zero, provided

that such regulatory agreement shall require, in consideration for such

reduction to zero, the provision of adequate, safe and sanitary housing

accommodations for persons of low income for a period of not less than

thirty years. Any regulatory agreement pursuant to this subdivision

shall include a certification by the new owner of the real property that

(i) the prior owner has no direct or indirect interest in such real

property, and (ii) the prior owner has no direct or indirect interest in

such new owner.

(b) On or about June thirtieth, two thousand nine and for every three

years thereafter for as long as the program continues to be in effect,

the city shall submit a report to the governor, the temporary president

of the senate, the speaker of the assembly, the minority leader of the

senate and the minority leader of the assembly. Each report following

the initial report shall describe the program activities carried out

during the three prior calendar years pursuant to this subdivision.

* NB Repealed June 30, 2027

11. The court may only discharge an administrator if the owner has

paid in full or entered into a payment agreement to pay in full all

outstanding real property tax liens claimed by the city of New York, all

outstanding emergency repair liens filed and recorded by the city of New

York, all outstanding charges and liens assessed in connection to the

alternative enforcement program authorized by section 27-2153 of the

administrative code of the city of New York, and outstanding liens filed

and recorded by the city pursuant to this section. The provisions of

this subdivision shall not apply to buildings transferred pursuant to

subdivision ten of this section.

Presentation or settlement of accounts. The court shall

require the keeping of written accounts itemizing the receipts and

expenditures under an order issued pursuant to section seven hundred

seventy-six or seven hundred seventy-seven of this article, which shall

be open to inspection by the owner, any mortgagee or lienor or any other

person having an interest in such receipts or expenditures provided,

however, notwithstanding any other provision of law to the contrary,

such information as may be in the possession of the city of New York

with the department charged with the enforcement of the housing

maintenance code of such city shall be available from such department

for inspection only by the owner, tenant of such property, or person

having a recorded interest in the property. Upon motion of the court or

the administrator or of the owner, any mortgagee or lienor of record or

of any person having an interest, the court may require a presentation

or settlement of the accounts with respect thereto. Notice of a motion

for presentation or settlement of such accounts shall be served on the

owner, any mortgagee or other lienor of record who appeared in the

proceeding and any person having an interest in such receipts or

expenditures.

Waiver void. Any provision of a lease or other agreement

whereby any provision of this article for the benefit of a tenant,

resident or occupant of a dwelling is waived, shall be deemed against

public policy and shall be void.

"Owner" defined. As used in this article, the term "owner"

shall mean and include the owner or owners of the freehold of the

premises or lesser estate therein, mortgagee or vendee in possession,

assignee of rents, receiver, executor, trustee, lessee, agent, or any

other person, firm or corporation, 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.

"Dwelling" defined. As used in this article, the term

"dwelling" shall mean 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, or is occupied as the residence or home of three or

more families living independently of each other; or is a garden-type

maisonette dwelling project as defined in the multiple dwelling law or

other similar dwellings which in their aggregate are arranged or

designed to provide three or more apartments, have common facilities

such as but not limited to a sewer line, water main, or heating plant

and are operated as a unit under common ownership, notwithstanding that

certificates of occupancy were issued for portions thereof as one or two

family dwellings or that the dwellings are not a multiple dwelling as

defined in the multiple dwelling law.

Defense of warranty of habitability inapplicable.

Notwithstanding any other provision of law, in any proceeding for the

payment of rent commenced by an administrator appointed pursuant to this

article, the provisions of section two hundred thirty-five-b of the real

property law pertaining to the warranty of habitability shall not be a

defense to such a proceeding for rent which accrues during the period of

time that a judgment or an order pursuant to this article is in effect,

unless the court determines that the conditions upon which such defense

is based were caused by the failure of such administrator to perform his

duties in a reasonable manner.

Definitions. As used in this article the following terms shall

have the following meanings:

1. The term "manufactured home resident" means one who rents space in

a manufactured home park from a manufactured home park owner or operator

for the purpose of locating his or her manufactured home or one who

rents a manufactured home in a manufactured home park from a

manufactured home park owner or operator.

2. The term "manufactured home owner" means one who holds title to a

manufactured home.

3. The term "manufactured home park" means a contiguous parcel of

privately owned land which is used for the accommodation of three or

more manufactured homes occupied for year-round living.

4. The term "manufactured home" means a structure, transportable in

one or more sections, which in the traveling mode, is eight body feet or

more in width or forty body feet or more in length, or, when erected on

site, is three hundred twenty or more square feet, and which is built on

a permanent chassis and designed to be used as a dwelling with or

without a permanent foundation when connected to the required utilities,

and includes the plumbing, heating, air-conditioning, and electrical

systems contained therein; except that such term shall include a "mobile

home" as defined in subdivision five of this section, and shall include

a structure which meets all the requirements of this subdivision except

the size requirements and with respect to which the manufacturer

voluntarily files a certification required by the secretary of housing

and urban development.

5. The term "mobile home" means a moveable or portable unit,

manufactured prior to January first, nineteen hundred seventy-six,

designed and constructed to be towed on its own chassis, comprised of

frame and wheels, connected to utilities, and designed and constructed

without a permanent foundation for year-round living. A unit may contain

parts that may be folded, collapsed or telescoped when being towed and

expanded later to provide additional cubic capacity as well as two or

more separately towable components designed to be joined into one

integral unit capable of being again separated into the components for

repeated towing. "Mobile home" shall mean units designed to be used

exclusively for residential purposes, excluding travel trailers.

Jurisdiction; courts; venue. 1. A special proceeding to remove

abandoned homes may be maintained in a supreme court, a court of civil

jurisdiction in a city, a district court, or a county 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.

Grounds for the proceeding. A manufactured home park owner or

operator of such manufactured home park may commence a special

proceeding to obtain an order of the court granting a declaration that a

manufactured home has been abandoned upon proof that:

1. The manufactured home has been vacant for a period of not less than

one hundred eighty days without notice to the manufactured home park

owner or operator, provided however, that such period shall be ninety

days in the event that a warrant of eviction with respect to such

manufactured home has been issued;

2. The manufactured home resident has defaulted in the payment of rent

for such period;

3. The manufactured home community owner or operator has notified all

known holders of liens against such home. Prior to commencing a

proceeding pursuant to this article, the manufactured home community

owner or operator shall cause a search to be done of:

(a) for homes constructed (i) on or after July first, nineteen hundred

ninety-four and designated by the manufacturer as a nineteen hundred

ninety-five or later model year, or (ii) on or after January first,

nineteen hundred ninety-four, for which the manufacturer did not

designate a model year, the title records of the department of motor

vehicles, or

(b) for all other homes, filings made under the Uniform Commercial

Code, to determine whether there are any lien-holders with an existing

interest in the manufactured home; and

4. At least two of the following factors apply:

(a) the manufactured home resident has removed substantially all of

the personal property from the home;

(b) utility service to the home has been terminated or disconnected by

the utility provider, or the manufactured home resident for at least

sixty days;

(c) the home is in a state of substantial disrepair that makes the

home uninhabitable; or

(d) other objective evidence of abandonment that the court finds

reliable.

Commencement; notice of petition; time and manner of service.

1. The special proceeding prescribed by this article shall be commenced

by filing a petition and a notice of petition. The petition shall comply

with the requirements of a complaint in an action and shall 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, that a final judgment may be rendered if the court finds that

the petitioner has made the requisite showing; and that the result of

that final judgment shall be the loss of the resident's home.

2. The notice of petition, together with the petition and affidavits

specified in the notice, shall be served upon the owner of the

manufactured home in a manner prescribed by this section at least thirty

days before the time at which the petition is noticed to be heard.

3. Service of the notice of petition and petition shall be made in the

same manner as a summons in an action.

4. The notice of petition and petition, together with proof of service

thereof, shall be filed with the court or clerk thereof within three

days after service has been completed.

Answer. At the time when the petition is to be heard, the owner

shall answer in writing. If the notice of petition was served at least

thirty 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.

Judgment and warrant. 1. Upon the issuance of a declaration

that a manufactured home has been abandoned pursuant to this article,

and upon motion of the manufactured home park owner or operator, 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 manufactured home

and commanding the officer to remove the home from the manufactured home

park within thirty days of delivery of the warrant. The actual cost of

removing and subsequent destruction of the home shall be a charge

against the manufactured home park owner or operator.

2. The warrant shall clearly recite that a declaration of abandonment

has been granted and that the home will be removed from the manufactured

home park no later than the thirtieth day after the delivery of the

order.

3. In lieu of ordering the sheriff to remove the home, the court may,

upon good cause shown, provide for an alternate disposition of the home,

including, but not limited to destruction; provided, however, that if

the court provides for the sale of the home, and the sale price exceeds

any amounts owed to the manufactured home park owner or operator, the

excess shall be held in escrow for the benefit of the home owner. This

subdivision shall not be construed to require the manufactured home park

owner or operator to post a bond to secure the homeowner's equity in the

home nor shall it be construed to require the manufactured home park

owner or operator to store the home on the premises of the manufactured

home park.

4. To the extent that any household goods or other personal property

of the respondent remain in the home at the time of its disposition

hereunder, the manufactured home community owner or operator shall

provide for the storage of such household goods and personal property

for a period of not less than three months from the date of the final

order of the court providing for the disposition of the home. In the

event that the household goods or other personal property are stored in

a self-storage facility, an amount equal to the charges imposed for such

storage may be recovered from the respondent. Upon the expiration of

such period, the community owner or operator (a) shall have no further

liability for the storage or safekeeping of such household goods or

personal property, and (b) may provide for the destruction or other

disposition of such household goods or personal property.

Definitions. As used in this article:

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.

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.

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

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.

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.

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.

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.

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.

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.

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

(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.

2. (a) A certified copy of such judgment shall be served personally

upon each non-petitioning tenant occupying such dwelling. If personal

service on any such non-petitioning tenant cannot be made with due

diligence, service on such tenant shall be made by affixing a certified

copy of such judgment on the entrance door of such tenant's apartment or

other unit and, in addition, within one day after such affixing, by

sending a certified copy thereof by registered mail, return receipt

requested, to such tenant.

(b) Any right of the owner of such dwelling to collect such rent

moneys from any petitioning tenant of such dwelling on or after the date

of entry of such judgment, and from any non-petitioning tenant of such

dwelling on or after the date of service of such judgment on such

non-petitioning tenant as herein provided, shall be void and

unenforceable to the extent that such petitioning or non-petitioning

tenant, as the case may be, has deposited such moneys with the

administrator in accordance with the terms of such judgment, regardless

of whether such right of the owner arises from a lease, contract,

agreement or understanding heretofore or hereafter made or entered into

or arises as a matter of law from the relationship of the parties or

otherwise. It shall be a valid defense in any action or proceeding

against any such tenant to recover possession of real property for the

non-payment of rent or for use or occupation to prove that the rent

alleged to be unpaid was deposited with the administrator in accordance

with the terms of a judgment entered under this section.

Application by mortgagee or lienor of record or other person

having an interest in the property. 1. If, after a trial, the court

shall determine that the facts alleged in the petition have been

affirmatively established by the petitioners, that no defense thereto

specified in section seven hundred ninety-six-g of this article has been

affirmatively established by the owner or a mortgagee or lienor of

record, and that the facts alleged in the petition warrant the granting

of the relief sought, and if the owner or any mortgagee or lienor of

record or other person having an interest in the property, shall apply

to the court to be permitted to remove or remedy the conditions

specified in such petition and shall (i) demonstrate the ability

promptly to undertake the work required and (ii) post security for the

performance of such work within the time, and in the amount and manner,

deemed necessary by the court, then the court, in lieu of rendering

judgment as provided in section seven hundred ninety-six-h of this

article, may issue an order permitting such person to perform the work

within a time fixed by the court.

2. If, after the issuance of an order pursuant to subdivision one of

this section, but before the time fixed in such order for the completion

of the work prescribed therein, it shall appear to the petitioners that

the person permitted to do the same is not proceeding with due

diligence, the petitions may apply to the court on notice to those

persons who have appeared in the proceeding for a hearing to determine

whether judgment should be rendered immediately as provided in

subdivision three of this section.

3. If, upon a hearing authorized in subdivision two of this section,

the court shall determine that the owner, mortgagee, lienor or other

person is not proceeding with due diligence, or upon the failure of the

owner, mortgagee, lienor or other person to complete the work in

accordance with the provisions of the order, the court shall render a

final judgment appointing an administrator as authorized in section

seven hundred ninety-six-j of this article. Such judgment shall direct

the administrator to apply the security posted by such person to the

removing or remedying of the condition or conditions specified in the

petition. In the event that the amount of such security should be

insufficient for such purpose, such judgment shall direct the deposit of

rents with the administrator, as authorized by section seven hundred

ninety-six-h of this article, to the extent of such deficiency. In the

event that such security should exceed the amount required to remove or

remedy such condition or conditions, such judgment shall direct the

administrator to file with the court, upon completion of the work

prescribed therein, a full accounting of the amount of such security and

the expenditures made pursuant to such judgment, and to turn over such

surplus to the person who posted such security, together with a copy of

such accounting.

Appointment of administrator. 1.(a) The court is authorized

and empowered, in implementation of a judgment rendered pursuant to

section seven hundred ninety-six-h or seven hundred ninety-six-i of this

article, to appoint a person other than the owner, a mortgagee or a

lienor, to receive and administer the rent moneys or security deposited

with such owner, mortgagee or lienor, subject to the court's direction.

(b) The court may appoint the commissioner of the department charged

with enforcement of the housing maintenance code in the municipality

where the dwelling is located or the commissioner's designee as such

administrator, provided that the commissioner or the commissioner's

designee shall consent, in writing, to such appointment.

(c) Any administrator is authorized and empowered in accordance with

the direction of the court, to:

(i) order the necessary materials, labor and services to remove or

remedy the conditions specified in the judgment, and to make

disbursements in payment thereof;

(ii) demand, collect and receive the rents from the tenants of the

dwelling;

(iii) institute all necessary legal proceedings including, but not

limited to, summary proceedings for the removal of any tenant or

tenants;

(iv) to rent or lease for terms not exceeding three years any part of

said premises, however, the court may direct the administrator to rent

or lease commercial portions of a premises zoned for mixed commercial

and residential use for terms that the court may approve; and

(v) in accordance with the direction of the court, to accept and repay

such moneys as may be received from the department or departments

charged with enforcement of the housing maintenance code in the

municipality or municipalities where the dwelling is located for the

purpose of managing the premises, replacing or substantially

rehabilitating systems or making other repairs or capital improvements

authorized by the court. All moneys expended by such department or

departments pursuant to the foregoing shall constitute a debt

recoverable from the owner and a lien upon the building and lot, and

upon the rents and other income thereof.

(d) Upon completion of the work prescribed in such judgment, the

administrator, shall file with the court a full accounting of all

receipts and expenditures for such work. The administrator shall dispose

of the rents and other monies deposited with such administrator

according to the following order of priority:

(i) payment in full for all of the work specified in the judgment;

until all of the work specified in the judgment has been completed and

payment for such work has been made, no other disbursements shall be

permitted, except for fuel bills, fire and liability insurance, and

bills for ordinary repairs and maintenance.

(ii) payment of a reasonable amount for the services of the

administrator, including reimbursement of any legal fees incurred by the

administrator in connection with management of the building.

(iii) payment of outstanding real property tax liens claimed by any

municipality in which the dwelling is located.

(iv) payment of outstanding emergency repair liens filed and recorded

by any municipality in which the dwelling is located and outstanding

liens filed and recorded by such municipality or municipalities pursuant

to this section.

(v) payment to the owner of the dwelling of any surplus remaining

after payments of subparagraphs (i), (ii), (iii) and (iv) of this

paragraph have been made.

2. The court may allow from the rent moneys or security on deposit a

reasonable amount for services of such administrator.

3. The administrator shall furnish a bond, the amount and form of

which shall be approved by the court. In its discretion and for good

cause shown, the court may dispense with the necessity for a bond. The

cost of a required bond shall be paid from the moneys so deposited.

4. The administrator shall file a transcript of the judgment

appointing him or her with the clerk of the county in which the subject

premises is located within fifteen days of his or her appointment.

5. The duties of the administrator shall not be affected by the

appointment of a receiver in an action to foreclose a mortgage on the

premises, except that the rights of the owner, including the right to

any surplus, pursuant to subparagraph (v) of paragraph (d) of

subdivision one of this section, shall pass to the receiver. The court

in which the action to foreclose a mortgage on the premises is pending

may appoint such administrator to serve as receiver in that action in

addition to his or her duties as administrator pursuant to this article.

6.(a) Such administrator shall be liable only in his or her official

capacity for injury to persons and property by reason of conditions of

the premises in a case where an owner would have been liable; he or she

shall not have any liability in his or her personal capacity.

(b) Appointment of an administrator pursuant to subdivision one of

this section shall not relieve an owner of liability for injury to

persons and property in such case.

7. No municipality shall be liable to any party, including the

administrator or the owner of the dwelling, for injury to persons or

property by reason of conditions of the premises or the acts or

omissions of the administrator.

8. The commissioner of the department charged with enforcement of the

housing maintenance code in the municipality where the dwelling is

located shall promulgate rules and regulations regarding criteria for

the selection of administrators to be appointed pursuant to this section

and shall establish and maintain a list of persons approved by such

department. Any person appointed as an administrator within such

municipality shall be selected from among the persons approved as

administrators pursuant to such list. A city, town or village may

establish and maintain such list itself or elect to have such list

established and maintained by the commissioner of the department charged

with enforcement of the housing maintenance code in the county in which

a dwelling is located.

9. The administrator shall, within thirty days of appointment, file

with the court a plan for the provision of essential services and for

the correction of such other hazardous conditions as may exist at the

premises, specifying dates by which such services shall be provided and

such conditions corrected. If such administrator cannot provide such

services and correct such conditions by the dates specified in the plan,

he or she shall be required to file with the court an amendment to the

plan setting forth the reasons why such services and corrections could

not be provided by such date and specifying new dates for such services

and corrections. Such plan and any amendments to such plan shall be

provided to the tenants by mail or by posting in a common area of the

building and to the owner of record by mail.

10. The court may only discharge an administrator if the owner has

paid in full or entered into a payment agreement to pay in full all

outstanding real property tax liens claimed by any municipality in which

the dwelling is located, all outstanding emergency repair liens filed

and recorded by any municipality in which the dwelling is located and

all outstanding liens filed and recorded by such municipality or

municipalities pursuant to this section.

Presentation or settlement of accounts. The court shall

require the keeping of written accounts itemizing the receipts and

expenditures for work performed under an order issued pursuant to

section seven hundred ninety-six-h or seven hundred ninety-six-i of this

article, which shall be open to inspection by the owner of the dwelling,

or any mortgagee or lienor or any other person having an interest in

such receipts or expenditures provided, however, that notwithstanding

any other provision of law to the contrary, such information as may be

in the possession of the department charged with the enforcement of the

housing maintenance code of the municipality shall be available from

such department for inspection only by the owner of the dwelling, the

tenant of the dwelling, or a person having a recorded interest in the

property. Upon motion of the court or the administrator or of the owner,

any mortgagee or lienor of record or of any person having an interest,

the court may require a presentation or settlement of the accounts with

respect thereto. Notice of a motion for presentation or settlement of

such accounts shall be served on the owner, any mortgagee or other

lienor of record who appeared in the proceeding and any person having an

interest in such receipts or expenditures.

Waiver void. Any provision of a lease or other agreement

whereby any provision of this article for the benefit of a tenant,

resident or occupant of a dwelling is waived, shall be deemed against

public policy and shall be void.

Defense of warranty of habitability inapplicable.

Notwithstanding any other provision of law, in any proceeding for the

payment of rent commenced by an administrator appointed pursuant to this

article, the provisions of section two hundred thirty-five-b of the real

property law pertaining to the warranty of habitability shall not be a

defense to such a proceeding for rent which accrues during the period of

time that a judgment or an order pursuant to this article is in effect,

unless the court determines that the conditions upon which such defense

is based were caused by the failure of such administrator to perform his

or her duties in a reasonable manner.

Jurisdiction; courts; venue. 1. Except as prohibited under

subdivision three of this section, a special proceeding for judgment

directing repairs of conditions and other relief in residential real

property constituting violation of applicable local and state housing

standards or section two hundred thirty-five-b of the real property law

may be maintained in a county court, justice court, district court, or

city court.

2. The place of trial of the special proceeding shall be within the

jurisdictional area of the court in which the residential real property

or a portion thereof is situated.

3. A special proceeding pursuant to this article shall not be

maintained in any court within the counties of Nassau, Suffolk,

Richmond, New York, Bronx, Kings or Queens.

Person who may maintain proceeding. 1. The proceeding may be

maintained by any party, known herein as a tenant, who is an occupant of

residential real property for thirty consecutive days or longer under an

agreement not created by deed.

2. The proceeding may be maintained by one or more tenants of a

residential property.

Respondent. The following may be named as a respondent:

1. The person, corporation, limited liability company, general

partnership, limited partnership, or any other entity holding title to

the real property or an ownership interest in the property.

2. The person or organization listed on any state or local residential

registration statement.

3. Anyone who has a legal obligation to maintain the premises

consistent with the warranty of habitability: owner or owners of the

freehold of the premises or lesser estate therein, mortgagee or vendee

in possession, assignee of rents, receiver, executor, trustee, lessee,

agent, or any other person, firm or corporation, directly or indirectly

in control of a dwelling, but not a receiver appointed pursuant to

section three hundred nine of the multiple dwelling law.

4. A public housing authority or a governmental body that owns or

manages the property.

Commencement; notice of petition; petition. 1. The proceeding

shall be commenced by the filing of a notice of petition and petition

with the clerk of the court. A notice of petition may be issued by an

attorney, judge, or 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 the respondent shall fail to

appear at such time and place to interpose any defense, the respondent

may be precluded from asserting such defense.

3. The office of court administration shall promulgate instructional

materials in which tenant-petitioners may find guidance on how to

commence the special proceedings. Such instructional materials shall be

in plain, accessible language. Such instructional materials shall be

published in English, Spanish and in other languages spoken by

limited-English proficient individuals in any judicial district as

needed.

Time of service; order to show cause. 1. The notice of

petition and petition shall be served at least ten and not more than

seventeen days before the time at which the petition is to be heard.

2. The court may grant an order to show cause to be served in lieu of

a notice of petition at a time and in a manner specified therein.

Manner of service of notice of petition and petition; when

service complete. 1. Personal service upon a natural person may be

completed in the manner in which a summons is served under section three

hundred eight of the civil practice law and rules.

2. Personal service upon a partnership may be completed in a manner in

which a summons is served under sections three hundred eight, three

hundred ten or three hundred ten-a of the civil practice law and rules.

3. Personal service on a corporation may be completed in a manner in

which a summons is served under section three hundred eleven of the

civil practice law and rules.

4. Personal service upon a limited liability company may be completed

in a manner in which a summons is served under section three hundred

eleven-a of the civil practice law and rules.

5. In the alternative, personal service may be completed on any

natural person, partnership, corporation, or limited liability company

by mailing the notice of petition and petition by certified and

first-class mail to an address where local property tax bills are sent.

If the jurisdiction in which the court sits has a rental registry

requirement, service may be completed by mailing to the address for the

real property in the registry.

6. Proof of service shall be filed with the clerk of the court within

three days thereafter. Personal service on the respondent shall be

complete upon personal delivery. Any authorized mail service pursuant to

this subdivision shall be complete upon the filing of proof of service.

Contents of the petition. 1. The petition shall be verified

by the person authorized to maintain the proceeding under section seven

hundred ninety-seven-a of this article or by a legal representative,

attorney, or agent of such person pursuant to rule three hundred twenty

of the civil practice law and rules. The attorney of such person may

verify upon information and belief.

2. Every petition shall:

a. State the interest of the petitioner in the premises for which

relief under this article is sought;

b. Describe the premises that is the subject of the petition;

c. State the facts upon which the special proceeding is based,

including those conditions constituting violation of applicable state or

local housing standards or section two hundred thirty-five-b of the real

property law; and

d. State the relief sought. Such relief may include an order to

repair, a monetary judgment in favor of petitioner for diminished value

of real property, and an order reducing future rent until violations

have been cured.

Notice to local housing standard enforcement agency. The

clerk of the court shall mail a copy of the filed notice of petition and

petition to the appropriate government agency charged with enforcing

local or state housing standards within the court's jurisdiction.

Answer. At or prior to the time the petition is to be heard

the respondent may answer orally or in writing. If the answer is oral

the substance thereof shall be recorded by the clerk or, if a particular

court has no clerk, by the presiding judge or justice of such court, and

maintained in the case record. The answer may contain any legal or

equitable defense.

Trial. 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.

Judgment. 1. The court shall direct that final judgment be

entered determining the rights of the parties.

2. The judgment may include:

a. An order to repair conditions constituting violation of applicable

local and state housing standards or section two hundred thirty-five-b

of the real property law; and

b. Any other relief that the court may deem just.

Who liable to action for waste. An action for waste lies

against a tenant by the curtesy, in dower, for life, or for years, or

the assignee of such a tenant, who, during his estate or term, commits

waste upon the real property held by him, without a special and lawful

written license so to do; or against such a tenant who lets or grants

his estate and still retaining possession thereof commits waste without

a like license.

Alterations or replacements of structures by person having

estate for life or years. 1. When a person having an estate for life or

for years in land proposes to make an alteration in, or a replacement of

a structure or structures located thereon, then the owner of a future

interest in such land can neither recover damages for, nor enjoin the

alteration or replacement, if the person proposing to make such

alteration or replacement complies with the requirements hereinafter

stated as to the giving of security and establishes the following facts:

a. That the proposed alteration or replacement is one which a prudent

owner of an estate in fee simple absolute in the affected land would be

likely to make in view of the conditions existing on or in the

neighborhood of the affected land; and

b. That the proposed alteration or replacement, when completed, will

not reduce the market value of the interests in such land subsequent to

the estate for life or for years; and

c. That the proposed alteration or replacement is not in violation of

the terms of any agreement or other instrument regulating the conduct of

the owner of the estate for life or for years or restricting the land in

question; and

d. That the life expectancy of the owner of the estate for life or the

unexpired term of the estate for years is not less than five years; and

e. That the person proposing to make such alteration or replacement,

not less than thirty days prior to commencement thereof, served upon

each owner of a future interest, who is in being and ascertained, a

written notice of his intention to make such alteration or replacement,

specifying the nature thereof, which notice was served personally or by

registered mail sent to the last known address of each such owner of a

future interest.

2. When the owner of a future interest in the affected land demands

security that the proposed alteration or replacement, if begun, will be

completed and that he be protected against responsibility for

expenditures incident to the making of the proposed alteration or

replacement, the court in which the action to recover damages or to

enjoin the alteration or replacement is pending, or if no such action is

pending, the supreme court, on application thereto, on such notice to

the interested parties as the court may direct, shall fix the amount and

terms of the security reasonably necessary to satisfy such demand. The

furnishing of the security so fixed shall be a condition precedent to

the making of the proposed alteration or replacement.

3. This section applies only to estates for life or for years created

on or after September 1, 1937.

Action for waste by heir, devisee or grantor of reversion. An

heir or devisee may maintain an action for waste, committed in time of

his ancestor or testator, as well as in his own time. The grantor of a

reversion may maintain an action for waste committed before he aliened

the same.

Action for waste by ward against guardian. Such an action may

also be maintained against a guardian by his ward, either before or

after the termination of the guardianship, for waste committed upon the

real property of the ward during the guardianship.

Action for waste by grantee of real property sold under

execution. Where real property is sold by virtue of an execution, the

person to whom a conveyance is executed pursuant to the sale may

maintain an action for waste, committed thereon after the sale, against

the person who was then in possession of the property.

Judgment in action for waste against tenant of particular

estate. If the plaintiff recovers in an action for waste, other than an

action brought as prescribed in section 817, the final judgment must

award to him compensatory damages. Where the action is brought by the

person next entitled to the reversion and it appears, in like manner,

that the injury to the estate in reversion is equal to the value of the

tenant's estate or unexpired term, the final judgment must also award to

the plaintiff the forfeiture of the defendant's estate and the

possession of the place wasted.

Action for waste against joint tenant or tenant in common. 1.

An action for waste may also be maintained by a joint tenant or tenant

in common against his co-tenant who commits waste upon the real property

held in joint tenancy or in common. If the plaintiff recovers therein he

is entitled, at his election, either to a final judgment for

compensatory damages or to have partition of the property as prescribed

in subdivisions 2 and 3 of this section.

2. Where the plaintiff elects to have partition, if the pleadings,

verdict, report, or decision do not determine the rights and interests

of the several parties in the property so held in joint tenancy or in

common, the court must ascertain them, by a reference or otherwise. If

it appears that there are persons, not parties to the action, who must

have been made parties to an action for partition of the property, they

must be brought in by supplemental summons and, if necessary,

supplemental pleadings must be made. When the rights and interests of

all the parties are ascertained, an interlocutory judgment for the

partition or sale of the property must be rendered and the subsequent

proceedings therein must be the same as in an action for partition,

except as otherwise prescribed in subdivision 3.

3. The plaintiff may elect to take final judgment for the damages

awarded to him, or that, in making the partition, or in dividing the

proceeds of a sale, so much of the share of the defendant in the real

property, or the proceeds thereof, as will be sufficient to compensate

the plaintiff for his damages, and the costs of the action, other than

the expenses of making the partition or sale, be laid off or paid, as

the case may be, to the plaintiff. The residue of the property or

proceeds, not laid off or distributed to the plaintiff or the defendant,

must be laid off or paid to the persons entitled thereto, according to

their respective rights and interests.

View in action for waste. In an action for waste it is not

necessary, either upon the execution of a writ of inquiry or upon the

trial of an issue of fact, that the jury, the judge, or the referee

should view the property. Where the trial is by a referee, or by the

court without a jury, the referee or the judge may, in his discretion,

view the property and direct the attorneys for the parties to attend

accordingly. In any other case, the court may in its discretion, by

order direct a view by the jury.

Action by reversioner or remainderman. A person seized of an

estate in remainder or reversion may maintain an action founded upon an

injury done to the inheritance, notwithstanding any intervening estate

for life or for years.

Recovery of fee damages by the owner of a possessory estate for

life or for years. When the ownership of land is divided into a

possessory estate for life or for years and one or more future

interests, and a person having none of these interests causes damage to

such land, the damages recoverable by the owner of such possessory

interest from the wrongdoing third person may include damages caused to

interests in the affected land other than those owned by parties to the

action or proceeding when, but only when, all living persons who have

either a possessory or a future interest in the affected land are

parties thereto. The court in which any such recovery of damages occurs

shall make such direction for the distribution of the damages recovered

among the persons who are parties to the action or proceeding and for

the protection of the interests of persons who are not parties thereto,

as justice may require.

A tenant for life or for years in the land damaged is entitled to

receive from the recovery, in satisfaction of the damage to his estate

or interest, either a sum in gross or the earnings of a sum invested for

his benefit. The determination as to whether a sum in gross or the

earnings of a sum invested shall be awarded to the owner of such

particular estate shall be governed by the provisions with respect to

the proceeds of a sale in partition.

Action for nuisance. An action for a nuisance may be maintained

in any case where such an action might have been maintained under the

laws in force immediately before the taking effect of article seventh of

title one of chapter fourteenth of the code of civil procedure as added

thereto by chapter one hundred seventy-eight of the laws of eighteen

hundred eighty. A person by whom the nuisance has been erected and a

person to whom the real property has been transferred may be joined as

defendants in such an action. A final judgment in favor of the plaintiff

may award him damages or direct the removal of the nuisance or both.

This section does not affect an action wherein the complaint demands

judgment for a sum of money only.

Fences and structures, when private nuisance. Whenever the

owner or lessees of land shall erect or shall have erected thereon any

fence or structure in the nature of a fence which shall exceed ten feet

in height, to exclude the owner or occupant of a structure on adjoining

land from the enjoyment of light or air, the owner or occupant who shall

thereby be deprived of light or air shall be entitled to maintain an

action in the supreme court to have such fence or structure adjudged a

private nuisance. If it shall be so adjudged its continued maintenance

may be enjoined. This section shall not preclude the owner or lessee of

land from improving the same by the erection of any structure thereon in

good faith.

Action against certain persons holding over as trespassers. A

person in possession of real property as guardian or trustee for an

infant, or having an estate determinable upon one or more lives, who

holds over and continues in possession after the determination of his

trust or particular estate, without the express consent of the person

then immediately entitled, is a trespasser. An action may be maintained

against him or his executor or administrator, by the person so entitled,

or his executor or administrator, to recover the full value of the

profits received during the wrongful occupation.

Action for forcible or unlawful entry or detainer; treble

damages. If a person is disseized, ejected, or put out of real property

in a forcible or unlawful manner, or, after he has been put out, is held

and kept out by force or by putting him in fear of personal violence or

by unlawful means, he is entitled to recover treble damages in an action

therefor against the wrong-doer.

Action for cutting, removing, injuring or destroying trees or

timber, and damaging lands thereon. 1. If any person, without the

consent of the owner thereof, cuts, removes, injures or destroys, or

causes to be cut, removed, injured or destroyed, any underwood, tree or

timber on the land of another or on the common or other land of a city,

village, town or county, or damages the land in the course thereof, an

action may be maintained against such person for treble the stumpage

value of the tree or timber or two hundred fifty dollars per tree, or

both and for any permanent and substantial damage caused to the land or

the improvements thereon as a result of such violation. Such reparations

shall be of such kind, nature and extent as will reasonably restore the

lands affected by the violation to their condition immediately before

the violation and may be made by physical restoration of such lands

and/or by the assessment of monetary payment to make such restoration.

2. In any action brought pursuant to subdivision one of this section,

if the defendant establishes by clear and convincing evidence, that when

the defendant committed the violation, he or she had cause to believe

the land was his or her own, or that he or she had an easement or right

of way across such land which permitted such action, or he or she had a

legal right to harvest such land, then he or she shall be liable for the

stumpage value or two hundred fifty dollars per tree, or both and

reasonable costs associated with maintaining an action pursuant to this

section. In such case, the defendant shall also be liable for any

permanent and substantial damage caused to the land or the improvements

thereon as a result of such violation. Such reparations shall be of such

kind, nature and extent as will reasonably restore the lands affected by

the violation to their condition immediately before the violation and

may be made by physical restoration of such lands and/or by the

assessment of monetary payment to make such restoration.

3. For the purposes of this section "stumpage value" shall mean the

current fair market value of a tree as it stands prior to the time of

sale, cutting, or removal. Stumpage value shall be determined by one or

more of the following methods: the sale price of the tree in an

arm's-length sale, a review of solicited bids, the stumpage price report

prepared by the department of environmental conservation, comparison

with like sales on trees on state or private lands, or other appropriate

means to assure that a fair market value is established within an

acceptable range based on the appropriate geographic area.

Action for the removal of encroaching structures. 1. An action

may be maintained by the owner of any legal estate in land for an

injunction directing the removal of a structure encroaching on such

land. Nothing herein contained shall be construed as limiting the power

of the court in such an action to award damages in an appropriate case

in lieu of an injunction or to render such other judgment as the facts

may justify.

2. This section shall not be deemed to repeal or modify any existing

statute or local law relating to encroaching structures.

Access to adjoining property to make improvements or repairs.

1. As used in this section: (a) the term "document" shall include but

not be limited to copies of any plans, specifications, surveys,

engineering reports or evidence of insurance for the work to be

performed on adjoining property;

(b) the term "licensee" shall refer to the owner or lessee, as

applicable, who seeks entry onto an adjoining property;

(c) the term "adjoining owner" shall refer to the owner or its lessee

of the property adjoining that of the licensee;

(d) the term "refuse", "refusal", or "refused" shall be deemed to

include instances where more than one written notice has been served, by

certified mail, on the owner and has not been responded to within sixty

days;

(e) the term "state entity" shall refer to any department, division,

agency, office, public authority, or public benefit corporation of the

state of New York, or any affiliate or subsidiary agencies of such

department, division, agency, office, public authority, or public

benefit corporation.

2. When a licensee seeks to make improvements or repairs to real

property so situated that such improvements or repairs cannot be made by

the licensee in a commercially reasonable manner without entering the

premises of an adjoining owner, other than a state entity, and

permission so to enter has been refused, the licensee may commence a

special proceeding for a license so to enter pursuant to article four of

the civil practice law and rules. The petition and affidavits, if any,

shall state the facts making such entry necessary and the date or dates

on which entry is sought. Any adjoining owner named as a party in such

proceeding shall, at the request of the licensee, provide such licensee

with such information as shall allow the licensee to identify the

lessees of the adjoining owner and join them in the proceeding. Such

license shall be granted by the court in an appropriate case and upon

such other terms as justice requires. The licensee shall be liable to

the adjoining owner for actual damages occurring as a result of the

entry.

3. The purposes for which a licensee may seek permission to enter an

adjoining property pursuant to this section may include:

(a) Preconstruction survey to document the existing conditions of the

adjoining property;

(b) The installation, maintenance, inspection, repair, replacement

and/or removal of: (i) vibration, crack or optical monitoring devices on

or within any existing improvements on the adjoining property; (ii)

sheds, bridges, netting or other protective covering over the roof,

facades, windows, skylights, mechanical equipment, chimneys or other

exterior portions of buildings or yards, walkways, driveways or other

open areas on the adjoining property; (iii) scaffolding on or over the

adjoining property; (iv) sheeting, shoring, bracing or other retaining

structures needed for demolition, support or excavation; (v) where

required by code, regulation or local law, any necessary foundation or

building supports, including, wall ties, tie-backs, anchors, straps and

underpinning, for any demolition, new or existing improvements on the

premises of the licensee or adjoining owner, including, party walls; or

(vi) flashing, sealing or other materials or equipment needed to

establish the weather-proof integrity of any wall, foundation or other

exterior portion of a building on the adjoining property;

(c) Temporary projections or intrusions into the airspace of the

adjoining property as necessary to complete the proposed improvements or

repairs;

(d) Temporary or at the licensee's sole option permanent relocation,

extension or offsetting of any chimneys, vents, flues, exhausts or other

rooftop equipment on the adjoining property, as required by applicable

law;

(e) Construction staging necessary to complete any work on the

adjoining property; or

(f) The undertaking of such other measures as may be required by

applicable law or good construction practice.

4. The grant of any permission pursuant to this section shall be

subject to the following conditions:

(a) The exercise of any right of entry to the adjoining property shall

be upon reasonable prior notice to the adjoining owner, as applicable

and as the court may establish, except in cases of an emergency posing

an immediate threat to the safety of persons or property;

(b) The duration of the license based on a good faith projection of

the dates and estimated duration of any entry to the adjoining property.

The licensee shall thereafter make commercially reasonable efforts to

adhere to such dates and durations and if unable to do so make a request

to the court for an extension of such license;

(c) Where permission includes a right to install, maintain, inspect,

repair, replace or remove any devices, structures, materials or

equipment on the adjoining property, the grantee licensee shall provide

to the adjoining owner, as applicable, copies of any relevant documents

prior to commencement of such work;

(d) The licensee shall provide the adjoining owner and its lessee or

lessees, as applicable and as made known to the licensee by the

adjoining owner, with relevant documents confirming the licensee and/or

any contractor, consultant or agent thereof that accesses the adjoining

property pursuant to a license granted pursuant to this section

maintains commercial general liability insurance, provided such

documents are sufficient to enable the adjoining owner and/or its lessee

or lessees, as applicable, to make a third-party claim under such

insurance in the event that such licensee and/or any contractor,

consultant or agent thereof damages the adjoining property or any

persons thereupon; and

(e) The licensee shall be required to reasonably compensate the

adjoining owner for the loss of use and enjoyment of the adjoining

premises including diminution in value.

5. The court, in granting a license or otherwise resolving a

proceeding brought pursuant to this section, shall be authorized to:

(a) consider evidence that either party failed to comply with the

terms of any existing or previously existing license respecting the same

property;

(b) obligate the licensee to reimburse the adjoining owner for

reasonable fees incurred in connection with the review of relevant

documents for the installation, maintenance, inspection, repair,

replacement or removal of devices, structures, materials or equipment on

the adjoining property; and

(c) insure for damage to property and persons if there is unique,

physical occurrence causing physical damage to property or persons

caused by the access.

6. Notwithstanding subdivision five of this section, where the

adjoining property to which the licensee seeks access is owned, leased

or otherwise occupied by a state entity, the court shall not grant a

license.

Severability. If any provision of this article or the

application thereof to any person or circumstances is held invalid, the

remainder of the article and the application of such provision to other

persons or circumstances shall not be affected thereby.

By whom maintainable. 1. A person holding and in possession of

real property as joint tenant or tenant in common, in which he has an

estate of inheritance, or for life, or for years, may maintain an action

for the partition of the property, and for a sale if it appears that a

partition cannot be made without great prejudice to the owners.

2. A person holding a future estate as defined in sections forty,

forty-a or forty-b of the real property law or a reversion as joint

tenant or tenant in common may maintain an action for the partition of

the real property to which it attaches, according to his respective

share, subject to the interest of the person holding the particular

estate, but no sale of the premises in such an action shall be made

except with the consent in writing, to be acknowledged or proved and

certified in like manner as a deed to be recorded, of the person owning

and holding such particular estate. If partition or sale cannot be made

without great prejudice to the owners, the complaint shall be dismissed;

dismissal shall not affect the right of any party to bring a new action

after the determination of such particular estate.

3. A person entitled as a joint tenant or a tenant in common by reason

of his being an heir of a person who died holding and in possession of

real property, may maintain an action for partition, whether he is in or

out of possession, notwithstanding an apparent devise to another by the

decedent, and possession under such a devise. The plaintiff shall

establish that the apparent devise is void.

4. In the event the estate of a decedent is the owner of an estate in

common in real property, the executor or administrator may bring a

partition action or intervene in a pending partition action on behalf of

the estate if, upon application duly made, the surrogate approves.

Necessary defendants. Each of the following persons shall be

made a party to the action:

1. Every person having an undivided share, in possession or otherwise,

in the property, as tenant in fee, for life, by the curtesy or for

years;

2. Every person entitled to the reversion, remainder or inheritance of

an undivided share, after the determination of a particular estate

therein;

3. Every person who, by any contingency, is or may become entitled to

a beneficial interest in an undivided share in the property, provided

that where a future estate or interest is limited in any contingency to

the persons who shall compose a certain class upon the happening of a

future event, it shall be sufficient to make parties to the action the

persons who would have been entitled to such estate or interest if such

event had happened immediately before the commencement of the action;

4. Every person having an inchoate right of dower in an undivided

share in the property;

5. Every person having a right of dower in the property, or any part

thereof, which has not been admeasured; and

6. An executor or administrator, where letters testamentary or of

administration have been issued on the estate of the decedent from whom

the plaintiff's title to the real property is derived, and the action is

brought within eighteen months after such letters were issued; or where

the person of whose estate the executor or administrator has been

appointed should, if living, be a party to the action. If no executor or

administrator has been appointed for the estate of such a person, that

fact must be stated in the complaint.

Permissible defendants. The plaintiff, at his election, may

make defendant in the action:

1. A tenant by the curtesy or for life or for years, of the entire

property, or whoever may be entitled to a contingent or vested remainder

or reversion in the entire property, or a person having a lien or

interest which attaches to the entire property. A person specified in

this subdivision who is not made a party is not affected by the judgment

in the action.

2. A person having a lien on an undivided share or interest in the

property. The nature of the lien and the share or interest to which it

attaches shall be specified.

3. An unknown person entitled to an estate or interest in the property

sold. The court shall provide for the protection of his rights, as far

as may be, as if he were known and had appeared.

4. The state.

Complaint. The complaint shall describe the property with

reasonable certainty, specify the rights, shares and interests therein

of each of the parties, as far as the same are known to the plaintiff,

and contain any other allegation required by statute. If a party, or the

share, right or interest of a party, be unknown to the plaintiff; or if

a share, right or interest be uncertain or contingent; or if the

ownership of the inheritance depend upon an executory devise; or if a

remainder be contingent, so that the party cannot be named; such facts

shall be stated in the complaint. The complaint shall state whether the

parties own any other lands in common.

Trial of title or interest. 1. The title or interest of any

party in the property may be put in issue. When any defendant, not a

tenant in common or joint tenant with plaintiff, puts in issue title or

interest, all subsequent proceedings as to such defendant, including the

trial, judgment and execution, shall be the same as if it were an action

to recover real property.

2. An issue of fact joined in the action is triable by a jury.

Ascertainment of rights of parties before interlocutory

judgment on default or admission or where party is an infant, absentee

or unknown defendant.

If a defendant has made default in appearing or pleading, or the

rights of the parties are not controverted, or a party be an infant,

absentee or unknown, the court shall ascertain the rights, shares and

interests of the several parties in the property, by a reference or

otherwise, before interlocutory judgment is rendered.

Inquiry as to creditors. 1. Before an interlocutory judgment

for the sale of real property is rendered the court shall ascertain, by

reference or otherwise, whether there is any creditor not a party who

has a lien on the undivided share or interest of any party. A search

certified by the clerk or by the clerk and register of the county where

the property is situated that there is no such outstanding lien is

sufficient proof of the absence of such creditor.

2. Where a reference is directed, the referee shall cause a notice to

be published once in each week for four successive weeks in such

newspaper published in the county wherein the place of trial is

designated as shall be designated by the court directing said reference,

and also, where the court so directs, in a newspaper published in each

county wherein the property is situated, requiring each person not a

party to the action who, at the date of the order, had a lien upon any

undivided share or interest in the property, to appear before the

referee at a specified place and on or before a specified day to prove

his lien and the true amount due or to become due to him by reason

thereof. The referee shall report to the court with all convenient speed

the name of each creditor whose lien is satisfactorily proved before

him, the nature and extent of the lien, the date thereof and the amount

due or to become due thereupon.

Interlocutory judgment. The interlocutory judgment shall

determine the right, share or interest of each party in the property, as

far as the same has been ascertained. Where the property or any part

thereof is so circumstanced that a partition thereof cannot be made

without great prejudice to the owners, the interlocutory judgment,

except as otherwise expressly prescribed in this article, shall direct

that the property or the part so circumstanced be sold at public

auction. Otherwise, an interlocutory judgment in favor of the plaintiff

shall direct that partition be made between the parties according to

their respective rights, shares and interests and shall designate three

reputable and disinterested freeholders as commissioners to make the

partition so directed.

Interlocutory judgment directing partial partition. Where the

right, share and interest of a party has been ascertained, and the

rights, shares or interests of the other parties as between themselves

remain unascertained, an interlocutory judgment for a partition shall

direct a partition as between the party whose share has been so

determined and the other parties to the action. Where the rights, shares

and interests of two or more parties have been thus ascertained and

determined, the interlocutory judgment may also direct the partition

among them of a part of the property proportionate to their aggregate

shares. In either case, the court, from time to time, as the other

rights, shares and interests are ascertained, may render an

interlocutory judgment directing the partition, in like manner, of the

remainder of the property. Where an interlocutory judgment is rendered

in a case specified in this section, the court may direct the action to

be severed, and final judgment to be rendered with respect to the

portion of the property set apart to the parties whose rights, shares

and interests are determined, leaving the action to proceed as against

the other parties with respect to the remainder of the property; and if

necessary, the court may direct that one of those parties be substituted

as plaintiff.

Interlocutory judgment directing partition in common. Where

two or more parties desire to enjoy their shares in common with each

other, the interlocutory judgment may direct partition to be so made as

to set off to them their shares of the real property partitioned,

without partition as between themselves, to be held by them in common.

Interlocutory judgment directing sale or exception of lien or

dower interest. 1. An interlocutory judgment directing the sale of the

property may direct that the premises sold shall be free from the lien

of every debt of a decedent, from whom the plaintiff's title is derived,

or of a decedent who, if living, should be a party to the action, except

debts which were a lien upon the premises before the death of such

decedent.

2. Where a party has an existing right of dower in the entire property

directed to be sold, at the time when an interlocutory judgment for a

sale is rendered in an action for partition, the court shall determine

whether the interests of all the parties require that the right of dower

should be excepted from the sale or that it should be sold. If a sale of

the property, including the right of dower, is directed, the interest of

the party entitled to the right of dower shall pass thereby; and the

purchaser, his heirs and assigns, shall hold the property free and

discharged from any claim by virtue of that right.

Interlocutory judgment directing credit on sale. The court, in

the interlocutory judgment for a sale, shall direct the terms of credit

which may be allowed for any portion of the purchase-money.

Actual partition. 1. The commissioners designated by the

interlocutory judgment shall forthwith proceed to make partition as

directed by such judgment, unless it appears to them that partition

thereof, or of a particular lot, tract or other portion thereof, cannot

be made without great prejudice to the owners; in which case, they shall

make a written report of that fact to the court.

2. The commissioners shall divide the property into distinct parcels

and allot the several parcels to the respective parties, quality and

quantity being relatively considered, according to the respective rights

and interest of the parties as fixed by the interlocutory judgment.

They shall designate the several parcels by suitable monuments. They may

employ a surveyor, with the necessary assistants, to aid them.

3. Where a party has a right of dower in the property, or a part

thereof, which has not been admeasured, or has an estate by the curtesy

or for life or for years in an undivided share of the property, the

commissioners may allot to that party his share without reference to the

duration of the estate. They may make partition of the share so allotted

to that party, among the parties who are entitled to the remainder or

reversion thereof, to be enjoyed by them upon the determination of the

particular estate, where, in the opinion of the commissioners, such a

partition can be made without prejudice to the rights of the parties.

Meeting of commissioners; report of actual partition;

confirming or setting aside report. 1. All the commissioners shall meet

together in the performance of any of their duties, but the acts of a

majority so met are valid. They shall make a full report of their

proceedings, under their hands, specifying therein the manner in which

they have discharged their trust, describing the property divided and

the share or interest in a share allotted to each party, with the

quantity, courses and distances or other particular description of each

share, and a description of the monuments; and specifying the items of

their charges. Their report shall be acknowledged or proved, and

certified, in like manner as a deed to be recorded, and shall be filed

in the office of the clerk.

2. The court shall confirm or set aside the report, and, if necessary,

may appoint new commissioners.

3. If the commissioners report that the property, or a particular lot,

tract or other portion thereof is so circumstanced that a partition

thereof cannot be made without great prejudice to the owners, the court

may render a supplemental interlocutory judgment reciting the facts and

directing that the property or the distinct parcel so circumstanced be

sold.

Security for credit on sale. The portion of the purchase-money

for which credit is allowed in the interlocutory judgment shall be

secured at interest by a mortgage upon the property sold, with a bond of

the purchaser; and by such additional security, if any, as the court

prescribes. The officer making the sale may take separate mortgages and

other securities in the name of the county treasurer of the county in

which the property is situated for such convenient portions of the

purchase-money as are directed by the court to be invested; and in the

name of the owner, for the share of any known owner of full age who

desires to have it invested.

Report of sale; confirmation. 1. Immediately after completing

the sale, the officer making it shall file with the clerk his report

thereof under oath, containing a description of each parcel sold, the

name of the purchaser and the price.

2. The court shall confirm or set aside the report.

Contents of judgment after actual partition. Upon the

confirmation by the court of the report of the commissioners making

partition, final judgment shall be entered directing that each of the

parties who is entitled to possession of a distinct parcel allotted to

him, be let into the possession thereof, either immediately, or after

the determination of the particular estate, as the case requires.

Effect of judgment after actual partition. A final judgment

after actual partition is binding and conclusive upon the following

persons, except parties and persons claiming under them whose rights and

interests are expressly left unaffected:

1. The plaintiff; each defendant upon whom the summons was served,

either personally or without the state or by publication; and his legal

representatives.

2. Each person claiming from, through or under such a party, by title

accruing after the filing of the judgment-roll, or after the filing in

the proper county clerk's office of a notice of the pendency of the

action.

3. Each person not in being when the interlocutory judgment is

rendered who, by the happening of any contingency becomes afterwards

entitled to a beneficial interest attaching to, or an estate or interest

in, a portion of the property, the person first entitled to which, or

other virtual representative whereof, was a party specified in the first

subdivision of this section.

Lien of creditor upon share partitioned. After actual partition

the lien of a creditor having a lien on an undivided share or interest

in the property, who is or is not made a party, shall attach only to the

share or interest assigned to the party upon whose share or interest the

lien attached; which shall be first charged with its just proportion of

the costs and expenses of the action, in preference to the lien.

Contents of judgment after sale. A final judgment confirming a

sale shall direct the officer making it to execute the proper

conveyances and take the proper securities pursuant to the sale, and

also direct application of the proceeds.

Effect of judgment after sale. A final judgment after sale is

binding and conclusive upon the same persons upon whom a final judgment

for actual partition is binding and conclusive; and it bars each of

those persons who is not a purchaser at the sale from all right, title

and interest in the property sold. It is also a bar against each person

not a party who, at the time when it is entered, has a general lien by

judgment or decree on the undivided share or interest of a party, if

notice was given to appear before the referee and make proof of liens,

as prescribed in this article, and also against each person made a party

who then has a specific lien on any such undivided share or interest;

but a person having any such specific lien appearing of record at the

time of the filing of the notice of the pendency of the action, who is

not made a party, is not affected by such judgment.

Judgment as to parties having interest in entire property. If

a tenant by the curtesy or for life or for years of the entire property,

or a person entitled to a contingent or vested remainder or reversion in

the entire property, or a creditor, or other person, having a lien or

interest which attaches to the entire property, be made a defendant in

the action, the final judgment either may award to such a party his

entire right and interest, or the proceeds thereof, or where the right

or interest is contingent, direct that the proceeds or share thereof be

substituted for the property and invested for whoever may eventually be

entitled thereto, or may reserve and leave unaffected his right and

interest, or any portion thereof.

Judgment directing compensation to equalize partition. Where

it appears that partition cannot be made equal between the parties

according to their respective rights without prejudice to the rights or

interests of some of them, the final judgment may award compensation to

be made by one party to another for equality of partition. But

compensation cannot be so awarded against a party who is unknown or

whose name is unknown. Nor can it be awarded against an infant unless it

appears that he has personal property sufficient to pay it and that his

interests will be promoted thereby.

Judgment adjusting rents and profits. The court may adjust the

rights of a party as against any other party by reason of the receipt by

the latter of more than his proper proportion of the rents or profits of

a share.

Judgment affecting state tax claim. A judgment affecting

adversely the title, interest or claim of the state based upon a tax

deed, shall provide in effect as follows:

1. That the state shall have a lien upon such real property or part

thereof described in such tax deed, prior and superior to all other

liens, (a) for the amount of the unpaid taxes not adjudged illegal in

such action for which such real property was sold or liable to be sold

in the first instance and for which such tax deed was issued, together

with fees, charges and interest; (b) for the amount of the unpaid taxes

not adjudged illegal in such action for which such real property was

subsequently sold or liable to be sold, together with fees, charges and

interest; (c) for the amount of all taxes, fees and charges admitted or

paid by the state upon such real property to the date of the entry of

such judgment, together with interest thereon from the date of such

admission or payment. In the determination of the amount of such lien,

establishment of payments of taxes on said land by the adjudged or

admitted owner of the property during any of the same years in which

payments were also made by the state shall reduce the lien of the state

by the larger of the two tax payments for each of the years affected by

duplicate payments, and in the event that wholly identical areas are not

affected by the duplicate payments the court shall have power to

apportion and adjust the amount of the lien as equity may require.

2. That the state may foreclose such lien as a mortgage on real

property is foreclosed, provided such lien remains unpaid after the

expiration of one year from the entry of such judgment.

The remedy provided by this section for recovery of tax payments shall

be in addition to any other remedy now or hereafter available in law or

in equity.

Recording of judgment. A copy, which is certified as correct,

of the final judgment may be recorded in the office for recording deeds

in each county in which any real property affected is situated.

Disposition of proceeds of sale. The proceeds of a sale, after

deducting the costs and expenses chargeable against them shall be

immediately awarded as directed by the final judgment, to the parties

whose rights and interests have been sold, in proportion thereto. The

sum chargeable upon any share to satisfy a lien thereon shall be paid to

the creditor, or retained, subject to the order of the court; and the

remainder except as otherwise prescribed in this article, shall be paid

by the officer making the sale, to the party owning the share or his

legal representatives or into court for his use. The proceedings to

ascertain and settle the liens upon an undivided share shall not affect

any other party to the action or delay the paying over or investing of

money to or for the benefit of any other party upon whose share or

interest in the property there does not appear to be any existing lien.

Payment of proceeds into court where there are liens. If there

is any existing lien upon the share or interest of a party in the

property, the interlocutory judgment directing the sale shall direct the

officer making it to pay into court the portion of the money arising

from the sale of the share or interest of that party after deducting the

portion of the costs and expenses for which it is liable.

Payment of proceeds out of court where there are liens. 1.

Where the proceeds of a sale are paid into court, in a case specified in

section 962, the party may apply to the court for an order directing

that the money, or such part as he claims, be paid to him, and the court

shall make such an order as justice requires. The party shall by

affidavit show the amount actually due on each incumbrance, and the name

and residence of the owner of the incumbrance, as far as they are known

or can be ascertained with due diligence, and showing service of a

notice of the application on each owner of an incumbrance. Service of

the notice within the state shall be personal, or by leaving it at the

owner's residence with some person of suitable age and discretion, at

least fourteen days previous to the application. Service without the

state, if personal, shall be made at least twenty days previous to the

application. If the owner of the incumbrance resides without the state,

and the place of his abode cannot be ascertained with reasonable

diligence, notice may be served on him by publishing it in such

newspaper or newspapers as the court may direct, once in each week for

the four weeks immediately preceding the application.

2. When the whole amount of the unsatisfied liens upon an undivided

share has been ascertained, the court shall order the portion of the

money so paid into court on account of that share to be distributed

among the creditors having the liens, according to the priority of each

of them. Where the incumbrancer is not a party to the action, the clerk

or other officer by whom a lien is paid off shall procure satisfaction

to be acknowledged or proved, as required by law, and shall cause the

incumbrance to be duly satisfied or cancelled of record. The expense of

so doing shall be paid out of the portion of the money in court

belonging to the party by whom the incumbrance was payable.

Payment of proceeds into court in cases involving decedent's

property. Where the property has been sold free from the lien of debts,

a final judgment, entered before eighteen months have elapsed from the

granting of letters of administration or letters testamentary upon the

estate of a decedent from whom the plaintiff derived his title, shall

direct that the proceeds of the sale remaining after the payment of the

costs, referee's fees, expenses of sale, and liens established before

the death of the decedent, including any sum allowed to a widow in

satisfaction of her right of dower, therein directed to be paid, be paid

forthwith into court by the referee making such sale.

A final judgment in such case, entered before eighteen months have

elapsed from the granting of letters of administration or letters

testamentary upon the estate of a deceased person, who, if living,

should be a party to the action, shall direct that the share of the

proceeds of such sale, which would have been his, if living, be paid

into court by such referee.

Payment of proceeds out of court in cases involving decedent's

property. Money paid into court under section 964 may be paid out of

court to such parties as are entitled thereto by order of the court made

upon motion of any party, and upon:

1. Notice of motion to the executors or administrators of the decedent

and the furnishing of an undertaking that the moving party will pay any

and all claims, not exceeding the amount paid into court, when required

by order of the court or by order of the surrogate of the surrogate's

court in a proceeding to mortgage, lease or sell the real property of

such decedent; except that where a final accounting has been had in the

estate of such decedent in a surrogate's court, and certified copies of

the account and decree of final settlement, showing that all of the

debts of the decedent have been paid in full, is filed with the court

having jurisdiction of the fund, the court may dispense with the

furnishing of an undertaking; or

2. The furnishing of the certificate of the surrogate of the county of

which any such decedent was a resident at the time of his death, showing

that eighteen months have elapsed since the issuing of letters

testamentary or letters of administration, as the case may be, upon the

estate of said decedent, and that no proceedings for the mortgage, lease

or sale of the real property of such decedent for the payment of his

debts or funeral expenses, or both, is pending, and the certificate of

the county clerk of the county where the real property sold under the

interlocutory judgment is located, showing that no notice of pendency of

action in respect to such real property has been filed in his office.

The certificate of the surrogate required herein may be executed in the

name of the surrogate by the clerk of the surrogate's court under the

seal of the court.

Payment of proceeds directly to parties in cases involving

decedent's property. Where the property has been sold free from the lien

of debts and the court is furnished with the certificates described in

subdivision 2 of section 965, the final judgment shall direct payment of

the proceeds of sale to such parties as are entitled thereto.

Payment of proceeds to owner of particular or future estate. A

party who has a right of dower, or is a tenant for life or for years, in

or of an undivided share of the property sold, or has an inchoate right

of dower or any other future right or estate, vested or contingent, or

any person not in being who by any contingency may become entitled to

any interest or estate in the property sold, is entitled to have a

proportion of the proceeds of the sale invested, secured or paid over,

in such manner as the court deems calculated to protect the rights and

interests of the parties.

Manner of payment of proceeds to owner of particular or future

estate. Whenever the whole or a part of the proceeds of a sale

represents the interest of a particular estate, and also represents one

or more other interests subsequent thereto, the power to determine

whether the owner of the particular estate shall receive, in

satisfaction of his estate or interest, a sum in gross or shall receive

the earnings, as they accrue, of a sum invested for his benefit in

permanent securities at interest, rests in the discretion of the court,

except that if all parties affected shall have agreed either to the

payment of a sum in gross or the investment of the proceeds the court

shall, by order, give effect to such agreement. The application of the

owner of any such particular estate for the award of a sum in gross

shall be granted unless the court finds that unreasonable hardship is

likely to be caused thereby to the owner of some other interest in the

affected real property. The application for the award of a sum in gross

by the owner of some interest in the affected real property other than

the owner of the particular estate shall be granted if the court finds

that the granting of such application is equitable under the

circumstances.

Shares of infant, incompetent or conservatee. Where a party

entitled to receive a portion of the proceeds of sale is an infant,

incompetent or conservatee, such portion may be disposed of as follows:

1. The court may direct it to be invested in permanent securities in

the name and for the benefit of the infant, incompetent or conservatee,

or it may direct it to be paid over to the general guardian of the

infant, committee of the incompetent or conservator of the conservatee,

when the guardian, committee conservator shall have executed an

undertaking to such infant, incompetent or conservatee; or,

2. Where a general guardian, committee or conservator has been

appointed, upon proof that it will be for the best interest and

advantage of the estate of such infant, incompetent or conservatee

person, the court may authorize and direct such guardian, committee or

conservator, in the name of such infant, incompetent person or

conservatee, to make application for an award of a sum in gross as

provided in section 968; or,

3. If any of the moneys arising from the proceeds of such sale shall

have been paid to the county treasurer, and on due proof that such money

has remained uninvested in permanent securities for the space of three

months, the court may direct the same to be paid to the general

guardian, committee or conservator of such infant, incompetent or

conservatee upon his giving an undertaking for the faithful execution of

his trust; where said sum in hands of county treasurer does not exceed

the sum of one thousand dollars the court may direct the same to be paid

in accordance with subdivision five of this section; or,

4. In the case of an infant, incompetent or conservatee residing

without the state and having in the state or country where he or she

resides a general guardian, committee or conservator, or person duly

appointed under the laws of such state or country to the control, and

entitled by the laws of such state or country to the custody, of the

money of such infant, incompetent or conservatee, the court, upon

satisfactory proof of such facts and of the sufficiency of the

undertaking given by such general guardian, committee or conservator or

person in such state or country by the certificate of a judge of a court

of record of such state or country, or otherwise, may direct that the

portion of such infant, incompetent or conservatee arising upon such

sale shall be paid over to such general guardian, committee or

conservator or person; or,

5. If the portion of the proceeds arising upon such sale which belongs

to an infant, incompetent or conservatee residing within or without the

state does not exceed one thousand dollars, the court may direct that

the same may be paid to his father, or to his mother or to some

competent person with whom the infant, incompetent or conservatee

resides, or who has some interest in his welfare, for the use and

benefit of such infant, incompetent or conservatee.

Shares of unknown or absent owner. Where a person has been made

a defendant as an unknown person, or where the name of a defendant is

unknown, or where the summons has been served upon a defendant without

the state or by publication, and he has not appeared in the action, the

court shall direct his portion to be paid into court and invested in

permanent securities at interest, for his benefit, until claimed by him

or his legal representatives.

Security for refund. The court, in its discretion, may require

any person, before he receives his portion of the proceeds of the sale

to give such security as it directs, to the state, or the county

treasurer, who shall hold it for the use and benefit of the persons

interested, or to such parties or other persons as it prescribes, to

refund the same, or a portion thereof, with interest, if it thereafter

appears that he was not entitled thereto.

Report of disposition of proceeds. Within sixty days after the

entry of final judgment, unless such time be extended by an order of the

court entered in the office of the clerk within said sixty days, the

officer making the sale shall file with the clerk his report under oath

of the disposition of the proceeds of the sale, accompanied by the

vouchers of the persons to whom payments were ordered to be made.

Costs and expenses. 1. The final judgment for the partition of

the property must also award that each defendant pay to the plaintiff

his proportion of the plaintiff's costs, including the additional

allowance. The sum to be paid by each must be fixed by the court

according to the respective rights of the parties, and specified in the

judgment.

2. If a defendant is unknown, his proportion of the costs shall be

fixed and specified in like manner. An execution against an unknown

defendant may be issued to collect the costs awarded against him as if

he were named in the judgment; and his right, share or interest in the

property may be sold by virtue thereof as if he were named in the

execution.

3. Where final judgment confirming a sale is rendered, the costs of

each party to the action and the expenses of the sale, including the

officer's fees, shall be deducted from the proceeds of the sale and

distributed as the court shall order. But the court, in its discretion,

may direct that the costs and expenses of any trial, reference or other

proceeding in the action be paid out of the share of any party in the

proceeds, or may render judgment against any party therefor. Where a

proportion of the proceeds is to be paid to or invested for the benefit

of any person, as prescribed in any provision of this article, the

amount thereof must be determined by the residue of the entire proceeds

remaining after deducting the costs and expenses chargeable against

them.

4. The officer making the sale shall pay out of the proceeds, unless

the judgment otherwise directs, all taxes, assessments and water rates,

which are liens upon the property sold, and redeem the property sold

from any sales for unpaid taxes, assessments or water rates, which have

not apparently become absolute. The sums necessary to make those

payments and redemptions are deemed expenses of the sale.

5. After actual partition, the fees and expenses of the commissioners,

including the expense of a survey when it is made, shall be taxed under

the direction of the court, and the amount thereof shall be paid by the

plaintiff and allowed as part of his costs.

6. Fees of surveyor or commissioner in action for partition. The fees

of a surveyor and a surveyor's assistant, employed as prescribed by law

in an action for partition, and of a commissioner appointed as

prescribed by law to make partition, shall be the same as those provided

by section 1052 of this chapter for services rendered in an action for

dower.

Proceeding for share of unknown heirs; presumption of death;

service. 1. Where a portion of the proceeds of the sale is paid into

court for unknown heirs and is unclaimed by any person entitled thereto

for twenty-five years after such payment the unknown heirs are presumed

to have been dead at the time of the sale. A special proceeding may be

commenced for the distribution of such proceeds to the persons entitled

thereto.

2. The notice of petition and petition shall be served upon the

unknown heirs or their representatives, the known heirs, their next of

kin, representatives or distributees, and all persons interested in such

proceeds. Service shall be made at least twenty days before the time at

which the petition is noticed to be heard. Each of the known persons

within the state, and the comptroller of the state if any proceeds have

been paid over to him by a county treasurer, shall be served personally.

All other persons shall be served in the manner prescribed for the

service by publication of a summons.

Judgment in proceeding for share of unknown heirs. Unknown

heirs or their representatives not appearing shall be barred from any

interest and the court shall render a judgment that the interest of such

unknown heirs was vested in the known heirs of the ancestor from whom

the unknown heirs derived title and that the proceeds be paid out of

court to the persons entitled thereto.

Uniform partition of heirs property act. 1. Short title. This

section shall be known as the "uniform partition of heirs property act".

2. Definitions. For purposes of this section, the following terms

shall have the following meanings:

(a) "Ascendant" means an individual who precedes another individual in

lineage, in the direct line of ascent from such other individual.

(b) "Collateral" means an individual who is related to another

individual under the law of intestate succession of this state but who

is not such other individual's ascendant or descendant.

(c) "Descendant" means an individual who follows another individual in

lineage, in the direct line of descent from such other such individual.

(d) "Determination of value" means a court order determining the fair

market value of heirs property under subdivision six or ten of this

section or adopting the valuation of the property agreed to by all

co-tenants.

(e) "Heirs property" means real property held in tenancy in common

which satisfies all of the following requirements as of the filing of a

partition action:

(i) there is no agreement in a record binding all of the co-tenants

which governs the partition of the property;

(ii) any of the co-tenants acquired title from a relative, whether

living or deceased;

(iii) the property is used for residential or agricultural purposes;

and

(iv) any of the following applies:

(A) twenty percent or more of the interests are held by co-tenants who

are relatives;

(B) twenty percent or more of the interests are held by an individual

who acquired title from a relative, whether living or deceased;

(C) twenty percent or more of the co-tenants are relatives of each

other; or

(D) any co-tenant who acquired title from a relative resides in the

property.

(f) "Partition by sale" means a court-ordered sale of the entire heirs

property, or the portion thereof in which any co-tenant who acquired

title from a relative resides, whether by auction, sealed bids, or

open-market sale conducted under subdivision ten of this section.

(g) "Partition in kind" means partition or division of heirs property

into physically distinct and separately titled parcels.

(h) "Record" means information that is inscribed on a tangible medium

or that is stored in an electronic or other medium and is retrievable in

perceivable form.

(i) "Relative" means an ascendant, descendant, or collateral or an

individual otherwise related to another individual by blood, marriage,

adoption, or law of this state other than under this section.

3. Applicability; relation to other law. (a) This section applies to

partition actions filed on or after the effective date of this section.

(b) In any action to partition real property, the court shall

determine, after notice and the right to be heard afforded to each

party, whether the property is heirs property. If the court determines

that the property is heirs property, the property shall be partitioned

in accordance with this section unless all of the co-tenants otherwise

agree in a record.

(c) This section shall supplement the general partition statute of

this article and, if an action is governed by this section, shall

replace the provisions of such general partition statute that are

inconsistent with this section.

4. Service; notice by posting. (a) This section shall not limit or

affect the method by which service of a complaint in a partition action

may be made.

(b) If the plaintiff in a partition action seeks an order of notice by

publication and the court determines that the property may be heirs

property, the plaintiff, not later than ten days after the court's

determination, shall post and maintain while the action is pending a

conspicuous sign on the property that is the subject of the action. The

sign shall state that the action has commenced and identify the name and

address of the court and the common designation by which the property is

known. The court may require the plaintiff to publish on the sign the

name of the plaintiff and the known defendants.

5. Settlement conference. (a) In any partition action of heirs

property, plaintiffs shall file proof of service within twenty days of

such service, however service is made, and the court shall hold a

mandatory conference within sixty days after the date when a request for

judicial intervention is filed, or on such adjourned date as has been

agreed to by the parties, for the purpose of holding settlement

discussions pertaining to the relative rights and obligations of the

parties with respect to the subject property including, but not limited

to, as set forth in this section.

(b) Upon the filing of a request for judicial intervention, the court

shall promptly send a notice to parties advising them of the time and

place of the settlement conference, the purpose of the conference and

the requirements of this section. The notice shall be in a form

prescribed by the office of court administration, or, at the discretion

of the office of court administration, the administrative judge of the

judicial district in which the action is pending. Plaintiff shall post a

copy of the settlement conference notice in a conspicuous place on the

property within twenty days of the date of the notice.

(c) The settlement conference may be adjourned or reconvened from time

to time as appropriate during the pendency of the partition action. At

any conference held pursuant to this section, the plaintiffs and the

defendants shall appear in person or by counsel, and each party's

representative at the conference shall be fully authorized to dispose of

the entirety or any portion of the case. If the defendant is appearing

pro se, the court shall advise the defendant of the nature of the action

and his or her rights and responsibilities as a defendant.

(d) At the first settlement conference held pursuant to this section,

if the defendant has not filed an answer or made a pre-answer motion to

dismiss, the court shall (i) advise the defendant of the requirement to

answer the complaint, (ii) explain what is required to answer a

complaint in court, (iii) advise that the ability to contest the

partition action and assert defenses may be lost if an answer is not

interposed, (iv) set a deadline for any co-tenants requesting partition

by sale, and (v) provide information about available resources for legal

assistance. A defendant who appears at the settlement conference but who

failed to file a timely answer, pursuant to rule three hundred twenty of

the civil practice law and rules, shall be presumed to have a reasonable

excuse for the default and shall be permitted to serve and file an

answer, without any substantive defenses deemed to have been waived,

within thirty days of initial appearance at the settlement conference.

The default shall be deemed vacated upon service and filing of an

answer.

(e) Both the plaintiffs and defendants shall negotiate in good faith

to reach a mutually agreeable resolution including, but not limited to,

a tenancy in common agreement, a co-tenant buyout and the allocation,

mechanics and financing thereof as provided in subdivision seven of this

section, a partition in kind as provided in subdivisions eight and nine

of this section, an open market sale as provided in subdivision ten of

this section, or any other agreement or loss mitigation that is fair and

reasonable considering the totality of factors listed in paragraph (a)

of subdivision nine of this section.

(f) If the parties do not reach a mutually agreeable resolution, the

referee, judicial hearing officer, or other staff designated by the

court to oversee the settlement conference process shall make a report

of findings of fact, conclusions of law and recommendations for relief

to the court concerning any party's failure to negotiate in good faith

pursuant to paragraph (e) of this subdivision. If the court determines a

plaintiff has failed to negotiate in good faith, the partition action

shall be dismissed.

(g) Any motions submitted by any party to the action may be held in

abeyance while the settlement conference process is ongoing, except for

motions concerning (i) a determination of the percentage interests, if

any, owned by any alleged co-tenant if such interests are in dispute and

(ii) compliance with this rule and its implementing rules including

applications to extend in the interests of justice any deadlines fixed

herein.

(h) In addition to any other qualifications otherwise required, each

commissioner appointed under section nine hundred fifteen of this

article and any officer appointed to conduct a sale shall be

disinterested, impartial and not related to a party to or participant in

the action.

6. Determination of value. (a) If the court determines that the

property that is the subject of a partition action is heirs property,

the court shall determine the fair market value of the heirs property

for purposes of subdivision seven of this section as follows, utilizing

paragraph (d) of this subdivision, unless it has determined that

paragraph (b) or (c) of this subdivision apply.

(b) If all co-tenants have agreed to the value of the property or to

another method of valuation, the court shall adopt such value or the

value produced by the agreed method of valuation.

(c) If the court determines that the evidentiary value of an appraisal

is outweighed by the cost of the appraisal, the court, after an

evidentiary hearing, shall determine the fair market value of the

property and send notice of the value to the parties.

(d) If paragraph (b) or (c) of this subdivision do not apply, the

court shall order an appraisal by a disinterested real estate appraiser

licensed in this state to determine the fair market value of the

property. Any determination of value under paragraph (c), (d), (f) or

(g) of this subdivision shall assume sole ownership of the fee simple

estate. On completion of the appraisal, the appraiser shall file a sworn

or verified appraisal with the court.

(e) Not later than ten days after an appraisal is filed under

paragraph (d) of this subdivision, the court shall send notice to each

party with a known address, stating:

(i) the appraised fair market value of the property plus the allowed

cost of the appraisal;

(ii) that the appraisal is available at the clerk's office; and

(iii) that a party may file with the court an objection to the

appraisal not later than thirty days after the notice is sent, stating

the grounds for the objection.

(f) If an appraisal is filed with the court pursuant to paragraph (d)

of this subdivision, the court shall conduct a hearing to determine the

fair market value of the property not sooner than thirty days after a

copy of the notice of the appraisal is sent to each party under

paragraph (e) of this subdivision, whether or not an objection to the

appraisal is filed under subparagraph (iii) of paragraph (e) of this

subdivision. In addition to the court-ordered appraisal, the court may

consider any other evidence of value offered by a party.

(g) After a hearing under paragraph (f) of this subdivision, but

before considering the merits of the partition action, the court shall

determine the fair market value of the property and send notice to the

parties of the value.

7. Co-tenant buyout. (a) Every co-tenant who requests or joins a

request for partition of heirs property by sale has thereby agreed that

his or her interest may be acquired in accordance herewith at the value

determined under subdivision six of this section by the co-tenants who

have not sought or joined in the request for partition by sale. Upon

determination that the property is heirs property and prior to the

determination of value under subdivision six of this section, the court

shall send notice to all parties identifying the owners of interests

that have sought partition by sale, the percentage interests such owners

allege to hold and of the right of the remaining co-tenants to avert

partition by sale by exercising the right to purchase all of the

interests of the co-tenants who requested partition by sale.

(b) Not later than forty-five days after the notice of the

determination of value under subdivision six of this section is sent and

by the date specified in such notice, any co-tenant, except a co-tenant

that requested partition by sale, may give notice to the court of the

total amount of percentage interests subject to purchase that he or she

elects to buy; provided, however, the court shall make a determination

of each co-tenant's percentage ownership interest in the property prior

to sending notice of the determination of value if such interest is in

dispute and shall consider all facts as determined by the court and

presented by the parties, and all laws and rules that govern the

transfer, succession and acquisition of title through probate, intestacy

or otherwise.

(c) The purchase price for percentage interests shall be the value of

the entire parcel determined under subdivision six of this section

multiplied by the aggregate amount of the percentage interests subject

to purchase.

(d) After expiration of the period in paragraph (b) of this

subdivision, the following rules apply:

(i) If one or more co-tenants have elected in the aggregate to buy at

least the total amount of percentage interests subject to purchase, the

court shall notify all the parties of such fact.

(ii) If the electing co-tenants' offers equal or exceed the amount of

percentage interests subject to purchase, the court shall allocate the

right to buy those interests among the electing co-tenants based on each

electing co-tenant's existing fractional ownership of the entire parcel

divided by the total existing fractional ownership of all co-tenants

electing to buy, reserving priority, first, to electing co-tenants who

acquired the interest from a relative and reside in the property and,

second, to all other electing co-tenants who acquired their interest

from a relative, and send notice to all the parties of the foregoing and

of the price to be paid by each electing co-tenant.

(iii) If co-tenants with the right to elect fail to elect to purchase

the entirety of the interests of the co-tenants whose interests are

subject to purchase, the court shall send notice to all the parties of

such fact and resolve the partition action under paragraphs (a) and (b)

of subdivision eight of this section.

(e) If the court sends notice to the parties under subparagraph (i) or

(ii) of paragraph (d) of this subdivision, the court shall set a date,

not sooner than sixty days after the date the notice was sent, by which

electing co-tenants must pay their apportioned price into the court.

After this date, the following rules apply:

(i) If all electing co-tenants timely pay his or her apportioned price

to the court, the court shall issue an order reallocating all the

interests of the co-tenants and disburse the amounts held by the court

to the persons entitled to them.

(ii) If no electing co-tenant timely pays his or her apportioned

price, the court shall resolve the partition action under paragraphs (a)

and (b) of subdivision eight of this section as if the interests of the

co-tenants that requested partition by sale were not purchased.

(iii) If one or more, but not all, of the electing co-tenants fail to

pay their apportioned price on time, the court, on motion, shall give

notice to the electing co-tenants that paid their apportioned price of

percentage of the unpurchased interests remaining and the price for all

such interests.

(f) Not later than twenty days after the court gives notice pursuant

to subparagraph (iii) of paragraph (e) of this subdivision, any

co-tenant that paid his or her apportioned price may elect to purchase

all of the remaining interest by paying the entire price to the court.

After the twenty day period, the following rules shall apply:

(i) If only one co-tenant pays the entire price for the remaining

interest, the court shall issue an order reallocating the remaining

interest to such co-tenant. The court shall issue promptly an order

reallocating the interests of all of the co-tenants and disburse the

amounts held by the court to the persons entitled to such amounts.

(ii) If no co-tenant pays the entire price for the remaining interest,

the court shall resolve the partition action under paragraphs (a) and

(b) of subdivision eight of this section as if the interests of the

co-tenants that requested partition by sale were not purchased.

(iii) If more than one co-tenant pays the entire price for the

remaining interest, the court shall reapportion those remaining

interests among those paying co-tenants, based on each paying

co-tenant's original fractional ownership of the entire parcel divided

by the total original fractional ownership of all co-tenants that paid

the entire price for the remaining interest. The court shall issue

promptly an order reallocating all of the co-tenants' interests,

disburse the amounts held by the court to the persons entitled to such

amounts, and promptly refund any excess payment held by the court.

(g) Not later than forty-five days after the court sends notice to the

parties pursuant to paragraph (a) of this subdivision, any co-tenant

entitled to buy an interest under this subdivision may request the court

to authorize the sale as part of the pending action of the interests of

co-tenants named as defendants and served with the complaint but that

did not appear in the action.

(h) If the court receives a timely request under paragraph (g) of this

subdivision, the court, after a hearing, may deny the request or

authorize the requested additional sale on such terms as the court

determines are fair and reasonable, subject to the following

limitations:

(i) a sale authorized under this subdivision may occur only after the

purchase prices for all interests subject to sale under paragraphs (a),

(b), (c), (d), (e) and (f) of this subdivision have been paid to the

court and such interests have been reallocated among the co-tenants as

provided in such paragraphs; and

(ii) the purchase price for the interest of a non-appearing co-tenant

is based on the court's determination of value under subdivision six of

this section.

8. Partition alternatives. (a) If all the interests of all co-tenants

that requested partition by sale are not purchased by other co-tenants

pursuant to subdivision seven of this section, or if after conclusion of

the buyout under subdivision seven of this section, a co-tenant remains

that has requested partition in kind, the court shall order partition in

kind unless the court, after consideration of the factors listed in

subdivision nine of this section, finds that partition in kind will

result in great manifest prejudice to the co-tenants as a group. In

considering whether to order partition in kind, the court shall approve

a request by two or more parties to have their individual interests

aggregated.

(b) If the court does not order partition in kind under paragraph (a)

of this subdivision, the court shall order partition by sale pursuant to

subdivision ten of this section provided that, if no co-tenant timely

requested partition by sale, the court shall dismiss the action.

(c) If the court orders partition in kind pursuant to paragraph (a) of

this subdivision, the court may require that one or more co-tenants pay

one or more other co-tenants amounts so that the payments, taken

together with the value of the in kind distributions to the co-tenants,

will make the partition in kind just and proportionate in value to the

fractional interests held.

(d) If the court orders partition in kind, the court shall allocate to

the co-tenants that are unknown, cannot be located, or the subject of a

default judgment, if the co-tenants interests were not bought out

pursuant to subdivision seven of this section, a part of the property

representing the combined interests of such co-tenants as determined by

the court and such part of the property shall remain undivided.

9. Considerations for partition in kind. (a) In determining under

subdivision eight of this section whether partition in kind would result

in great manifest prejudice to the co-tenants as a group, the court

shall consider the following:

(i) whether the heirs property practicably can be divided among the

co-tenants;

(ii) whether partition in kind would apportion the property in such a

way that the aggregate fair market value of the parcels resulting from

the division would be materially less than the amount reasonably

expected to be realized if the property were sold as a whole, taking

into account the conditions under which a court-ordered sale likely

would occur;

(iii) evidence of the collective duration of ownership or possession

of the property by a co-tenant and one or more predecessors in title or

predecessors in possession to the co-tenant who are or were relatives of

the co-tenant or each other;

(iv) a co-tenant's sentimental attachment to the property, including

any attachment arising because the property has ancestral or other

unique or special value to the co-tenant;

(v) the lawful use being made of the property by a resident or other

co-tenant and the degree to which any such co-tenant would be harmed if

the co-tenant could not continue the same use of the property;

(vi) the degree to which the co-tenants have contributed their pro

rata share of the property taxes, insurance, and other expenses

associated with maintaining ownership of the property or have

contributed to the physical improvement, maintenance, or upkeep of the

property;

(vii) the price, terms and conditions of the acquisition of the

co-tenant's interest in the property if such co-tenant is not a relative

of the person from whom it acquired his or her interest; and

(viii) any other relevant factor.

(b) The court shall not consider any one factor in paragraph (a) of

this subdivision to be dispositive without weighing the totality of all

relevant factors and circumstances.

10. Open-market sale, sealed bids, or auction. (a) If the court orders

a sale of heirs property, notwithstanding section two hundred thirty-one

of this chapter, such sale shall be an open-market sale under this

subdivision unless the court finds that a sale by sealed bids or an

auction would be more economically advantageous and in the best interest

of the co-tenants as a group.

(b) If the court orders an open-market sale and the parties, not later

than ten days after the entry of the order, agree on a real estate

broker licensed in this state to offer the property for sale, the court

shall appoint the broker and establish a reasonable commission. If the

parties do not agree on a broker, the court shall appoint a

disinterested real estate broker licensed in this state to offer the

property for sale and shall establish a reasonable commission. The

broker shall offer the property for sale in a commercially reasonable

manner at a price no lower than the determination of value and on the

terms and conditions established by the court.

(c) If the broker appointed under paragraph (b) of this subdivision

obtains within a reasonable time an offer to purchase the property for

at least the determination of value:

(i) the broker shall comply with the reporting requirements in

subdivision eleven of this section; and

(ii) the sale may be completed in accordance with the laws of this

state other than this section.

(d) If the broker appointed under paragraph (b) of this subdivision

does not obtain within a reasonable time an offer to purchase the

property for at least the determination of value, the court, after a

hearing, may:

(i) order that the property continue to be offered for an additional

time, by the same or a substitute broker, in accordance with paragraph

(b) of this subdivision; or

(ii) if it determines that doing so would not be in the best interests

of the parties, approve the highest outstanding offer.

(e) If after the court has appointed a substitute broker and there are

no reasonable offers for the property, the court may order the property

be sold by sealed bids or an auction and, the court shall set terms and

conditions of the sale. If the court orders an auction, the auction

shall be conducted in accordance with section two hundred thirty-one of

this chapter.

(f) If a purchaser is entitled to a share of the proceeds of the sale,

the purchaser is entitled to a credit against the price in an amount

equal to the purchaser's share of the net proceeds.

11. Report of open-market sale. (a) Unless required to do so within a

shorter time by this article, a broker appointed under paragraph (b) of

subdivision ten of this section to offer heirs property for open-market

sale shall file a report with the court not later than seven days after

receiving an offer to purchase the property for at least the value

determined under subdivision six or ten of this section.

(b) The report required by paragraph (a) of this subdivision shall

contain the following information:

(i) a description of the property to be sold to each buyer;

(ii) the name of each buyer;

(iii) the proposed purchase price;

(iv) the terms and conditions of the proposed sale, including the

terms of any owner financing;

(v) the amounts to be paid to lienholders;

(vi) a statement of contractual or other arrangements or conditions of

the broker's commission; and

(vii) other material facts relevant to the sale.

12. Prohibition on initiation of a partition action. No partition

action related to an heirs property may be initiated by a party that

purchased or otherwise acquired their share or shares by means other

than inheritance, and who did not inherit their share or shares directly

from a person who was a co-tenant prior to the property becoming heirs

property or from a co-tenant who was an heir thereto.

13. Right of first refusal. (a) When a co-tenant receives a bona fide

offer from a non-co-tenant to purchase a share or shares of an heirs

property and the co-tenant intends to accept or respond with a

counteroffer, the co-tenants who inherited their share or shares of the

property, or the co-tenants who are relatives to those co-tenants who

inherited their share or shares of the property shall have the right to

purchase such shares for the identical price, terms, and conditions of

the offer or counteroffer, with first priority to any co-tenant who

occupies the property as their primary residence and second priority to

any co-tenant who otherwise utilizes the property.

(b) It shall be the duty of the non-co-tenant who made the initial

offer for the share or shares of the property as well as the co-tenant

who received the offer to exercise all due diligence to identify all of

the other co-tenants to the property and notify such co-tenants of the

pending offer. Such notice shall include the names, addresses, phone

numbers and electronic mail addresses of all of the other co-tenants.

Notice shall be made in the same manner as set forth in section three

hundred eight of the civil practice law and rules. The other co-tenants

shall have one hundred eighty days from the date they are notified of

the offer to match such offer.

(c) In the event that the other co-tenants are not notified of the

offer and the sale is completed, and the offeror did not exercise the

required due diligence to notify the other co-tenants of the heirs

property, the other co-tenants shall have the right to purchase the

shares from the non-relative co-tenant for the price paid by such

non-relative co-tenant, plus any applicable interest at a rate of two

percent per annum. Such right shall expire one hundred eighty days after

the other co-tenants to the heirs property are made aware of the sale.

Limitation of action for dower. 1. An action for dower must be

commenced by a widow within two years after the death of her husband, if

the husband dies on or after April 6, 1954.

2. If the husband died before April 6, 1954, an action for dower must

be commenced by his widow within two years from April 6, 1954. If the

widow had, on April 6, 1954, less than two years under existing law in

which to bring an action for dower, the time so remaining is not

enlarged by this section. Nothing herein contained shall revive a cause

of action barred on April 6, 1954.

Action barred by assignment of dower. The acceptance by a

widow of an assignment of dower in satisfaction of her claim upon the

property in question bars an action for dower and may be pleaded by any

defendant.

Necessary defendants. Where the property in which dower is

claimed is actually occupied, the occupant thereof must be made

defendant in the action. Where it is not so occupied, the action must be

brought against some person exercising acts of ownership thereupon, or

claiming title thereto, or an interest therein, at the time of the

commencement of the action.

Who may be joined as defendants. 1. In either of the cases

specified in section 1011, any other person claiming title to, or the

right to the possession of, the real property in which dower is claimed

may be joined as defendant in the action.

2. The people of the state of New York may be made a party defendant

in an action for dower where the people of the state of New York have an

interest in or a lien upon the lands affected thereby, in the same

manner as a private person. In such a case the summons must be served

upon the attorney-general, who must appear in behalf of the people. But

where the people of the state of New York are made a party defendant, as

herein provided, the complaint shall set forth, in addition to the other

matters required, detailed facts showing the particular nature of the

interest in or the lien on the said real property of the people of the

state of New York and the reason for making the people a party

defendant. Upon failure to state such facts the complaint shall be

dismissed as to the people of the state of New York.

Actions where defendants claim in severalty. In an action to

recover dower, in a distinct parcel of real property of which the

plaintiff's husband died seized, or in all the real property which he

aliened by one conveyance, all the persons in possession of, or claiming

title to, the property, or any part thereof, may be made defendants,

although they possess or claim title to different portions thereof in

severalty.

Damages may be recovered; how estimated. Where a widow

recovers, in an action therefor, dower in property, of which her husband

died seized, she may also recover, in the same action, damages for

withholding her dower, to the amount of one-third of the annual value of

the mesne profits of the property, with interest; to be computed, where

the action is against the heir, from her husband's death, or, where it

is against any other person, from the time when she demanded her dower

of the defendant; and in each case, to the time of the trial, or

application for judgment, as the case may be; but not exceeding six

years in the whole. The damages shall not include any thing for the use

of permanent improvements, made after the death of the husband.

Damages in action against alienee of husband. Where a widow

recovers dower, in a case not specified in section 1021, she may also

recover, in the same action, damages for withholding her dower, to be

computed from the commencement of the action; but they shall not include

any thing for the use of permanent improvements, made since the property

was aliened by her husband. In all other respects, the same must be

computed as prescribed in section 1021.

Damages where several parcels are affected. Sections 1021 and

1022 do not authorize the recovery, against a defendant who is joined

with others, of damages for withholding dower, in any portion of the

property not occupied or claimed by him.

Damages apportioned between heir and alienee. Where a widow

recovers dower in real property aliened by the heir of her husband, she

may recover, in a separate action against him, her damages for

withholding her dower, from the time of the death of her husband to the

time of the alienation, not exceeding six years in the whole. The sum

recovered from him must be deducted from the sum which she would

otherwise be entitled to recover from the grantee; and any sum recovered

as damages from the grantee, must be deducted from the sum, which she

would otherwise be entitled to recover from the heir.

Damages against grantee of premises subject to dower. If the

defendant, in an action for dower, aliens the real property in question

after the filing of a notice of pendency of action and an execution

against him for the plaintiff's damages is returned wholly or partly

unsatisfied, an action may be maintained by the plaintiff against any

person who has been in possession of the property under the defendant's

conveyance, to recover the unsatisfied portion of the damages, for a

time not exceeding that during which he possessed the property.

Complaint. The complaint in an action for dower must describe

the property claimed with common certainty, by setting forth the name of

the township or tract and the number of the lot, if there is any, or in

some other appropriate manner, so that from the description, possession

of the property claimed may be delivered where the plaintiff is entitled

thereto, and must set forth the name of the plaintiff's husband.

Interlocutory judgment for admeasurement. If the defendant

makes default in appearing or pleading or if the right of the plaintiff

to dower is not disputed by the answer, or if it appears, by the

verdict, report, or decision upon a trial, that the plaintiff is

entitled to dower in the real property described in the complaint an

interlocutory judgment must be rendered which, except as otherwise

prescribed in this article, must direct that the plaintiff's dower in

the property, particularly describing it, be admeasured by a referee,

designated in the judgment, or by three reputable and disinterested

freeholders, designated therein, as commissioners for that purpose.

Dower, how admeasured. The referee or the commissioners must

execute their duties in the following manner:

1. They must, if it is practicable, and, in their opinion, for the

best interests of all the parties concerned, admeasure and lay off, as

speedily as possible, as the dower of the plaintiff, a distinct parcel,

constituting the one-third part of the real property of which dower is

to be admeasured, designating the part so laid off by posts, stones, or

other permanent monuments.

2. In making the admeasurement, they must take into consideration any

permanent improvements, made upon the real property, after the death of

the plaintiff's husband, or after the alienation thereof by him; and, if

practicable, those improvements must be awarded within the part not laid

off to the plaintiff; or, if it is not practicable so to award them, a

deduction must be made from the part laid off to the plaintiff,

proportionate to the benefit which she will derive from so much of those

improvements, as is included in the part laid off to her.

3. If it is not practicable, or if, in the opinion of the referee or

commissioners, it is not for the best interests of all the parties

concerned, to admeasure and lay off to the plaintiff a distinct parcel

of the property, as prescribed in the foregoing subdivisions of this

section, they must report that fact to the court.

4. They may employ a surveyor, with the necessary assistants, to aid

in the admeasurement.

Report thereupon. All the commissioners must meet together in

the performance of any of their duties; but the acts of a majority so

met are valid. The referee, or the commissioners, or a majority of them,

must make a full report of their proceedings, specifying therein the

manner in which they have discharged their trust, with the items of

their charges, and a particular description of the portion admeasured

and laid off to the plaintiff; or, if they report that it is not

practicable, or, in their opinion, it is not for the best interests of

all the parties concerned, to admeasure and lay off a distinct parcel of

the property of which dower is to be admeasured, they must state the

reasons for that opinion and all the facts relating thereto. The report

must be acknowledged or proved, and certified, in like manner as a deed

to be recorded, and must be filed in the office of the clerk.

Setting aside report. Upon the application of any party to the

action, and upon good cause shown, the court may set aside the report,

and, if necessary, may appoint new commissioners, or a new referee, who

must proceed, as prescribed in this article, with respect to those first

appointed.

Fees and expenses. The fees and expenses of the commissioners,

or of the referee, including the expense of a survey, when it is made,

must be taxed under the direction of the court; and the amount thereof

must be paid by the plaintiff, and allowed to her, upon the taxation of

her costs.

Fees of surveyor or commissioner in action for dower. A

surveyor, employed as prescribed by law, in an action for dower, or to

determine dower, is entitled to five dollars for each day actually and

necessarily occupied in surveying, laying out, marking, or mapping land

therein. Each assistant so employed is entitled to two dollars for each

day actually and necessarily occupied in serving under the surveyor's

direction. Each commissioner appointed as prescribed by law to admeasure

dower is entitled to five dollars for each day's actual and necessary

service.

Final judgment. Upon the report being confirmed by the court,

final judgment must be rendered. If the referee or commissioners have

admeasured and laid off to the plaintiff a distinct parcel of the

property, the judgment must award to her, during her natural life, the

possession of that parcel, describing it, subject to the payment of all

taxes, assessments, and other charges, accruing thereupon after she

takes possession. If the referee or the commissioners report, that is

not practicable, or that, in his or their opinion, it is not for the

best interests of all the parties concerned, so to admeasure and lay off

a distinct parcel of the property, the final judgment must direct, that

a sum, fixed by the court, and specified therein, equal to one-third of

the rental value of the real property, as ascertained by a reference or

otherwise, be paid to the plaintiff, annually or oftener, as directed in

the judgment, during her natural life, for her dower in the property;

and that the sum so to be paid, be and remain a charge upon the

property, during her natural life. The final judgment may also award

damages for the withholding of dower.

Plaintiff may recover sum awarded; court may modify judgment.

The plaintiff may, from time to time, maintain an action against the

owner, or a person who was the owner of the property, to recover any

instalment of the sum, so awarded to her for her dower, which became due

during his ownership, and remains unpaid. Or, if an instalment remains

due and unpaid, she may maintain an action to procure a sale of the

property, and enforce the payment of the instalments, due and to become

due, out of the proceeds of the sale. Such an action must be conducted

as if the charge upon the real property was a mortgage to the same

effect. If, at any time, it is made to appear to the court that the

rental value of the real property has materially increased or

diminished, the court may, by an order, to be made upon notice to all

the persons interested, modify the final judgment by increasing or

diminishing the sum to be paid to the plaintiff.

Junior incumbrances; not affected by admeasurement. Where a

portion of the property is admeasured and laid off to the plaintiff as

her dower, a lien which is inferior to the plaintiff's right of dower

attaches, during the life of the plaintiff, to the residue, or to the

portion or share of the residue which was subject to it, as if the

portion laid off to the plaintiff had not been a part of the property.

Appeal not to stay execution if undertaking is given. An

appeal from a final judgment awarding to the plaintiff possession of the

part admeasured and laid off to her does not stay the execution thereof

unless the court, or a judge thereof, grants an order directing such a

stay. Such an order shall not be granted if an undertaking is given on

the part of the respondent, with one or more sureties approved by the

court, or a judge thereof, to the effect that, if the judgment appealed

from is reversed or modified, and restitution is awarded, she will pay

to the person entitled thereto the value of the use and occupation of

the part so admeasured and laid off to her, or of the portion

restitution of which is awarded, during the time she holds possession

thereof, by virtue of the judgment.

Plaintiff may consent to receive a gross sum. In an action for

dower, the plaintiff may, at any time before an interlocutory judgment

is rendered, by reason of the defendant's default in appearing or

pleading, or, where an issue of fact is joined, at any time before the

commencement of the trial, file with the clerk a consent to accept a

gross sum, in full satisfaction and discharge of her right of dower in

the real property described in the complaint. Such a consent must be in

writing, and acknowledged or proved, and certified, in like manner as a

deed to be recorded. A copy thereof, with notice of the filing, must be

served upon each adverse party who has appeared, or who appears after

the filing.

Defendant may consent to pay it; proceedings thereupon. At

any time after a consent is filed, as prescribed in section 1071, and

before an interlocutory judgment is rendered, any defendant may apply to

the court, upon notice, for an order granting him leave to pay such a

gross sum. Thereupon the court may, in its discretion, and upon such

terms as justice requires, ascertain the value of the plaintiff's right

of dower in the property, by a reference or otherwise, and make an order

directing payment by the applicant of the sum so ascertained, within a

time fixed by the order, not exceeding sixty days after service of a

copy thereof and directing the execution by the plaintiff of a release

of her right of dower, upon receipt of the money. Obedience to the order

may be enforced, either by punishment for contempt, or by striking out

the pleading of the offending party and rendering judgment against him

or her, in both modes.

Interlocutory judgment for sale. Where the plaintiff's consent

has been filed as prescribed in section 1071 and she is entitled to an

interlocutory judgment in the action, the court must, upon the

application of either party, ascertain, by reference or otherwise,

whether a distinct parcel of the property can be admeasured and laid off

to the plaintiff, as tenant in dower, without material injury to the

interests of the parties. If it appears to the court that a distinct

parcel cannot be so admeasured and laid off, the interlocutory judgment

must, except in the case specified in the section 1074, direct that the

property be sold by the sheriff, or by a referee designated therein; and

that, upon the confirmation of the sale, each party to the action, and

every person deriving title from, through, or under a party, after the

filing of the judgment-roll, or of a notice of the pendency of the

action as prescribed by law, be barred of and from any right, title, or

interest in or to the property sold.

Direction that a part be laid off. In a case specified in

section 1071, where the property, or a part thereof, consists of one or

more vacant or unimproved lots, the plaintiff's consent may contain a

stipulation to take a distinct parcel, out of those lots, in lieu of a

gross sum. In that case, the interlocutory judgment, instead of

directing a sale, may direct if it appears to be just so to do, that

commissioners be appointed to admeasure and lay off to the plaintiff a

distinct parcel, out of the vacant or unimproved lots; and, if there is

any other property, that it be sold, and a gross sum be paid to her out

of the proceeds thereof, as prescribed in sections 1075, 1076, 1077 and

1078. The plaintiff's title to each distinct parcel, admeasured and laid

off to her, as prescribed in this section, is that of an estate of

inheritance in fee simple. In admeasuring and laying off the same, the

commissioners must consider quantity and quality relatively, according

to the value of the plaintiff's right of dower in the vacant or

unimproved lots, out of which the admeasurement is to be made; which

must be ascertained, in proportion to the value of those lots, as

prescribed in sections 1075, 1076, 1077 and 1078, for fixing a gross sum

to be paid to her out of the proceeds of a sale.

Liens to be ascertained. Before an interlocutory judgment is

rendered for the sale of the property, the court must direct a reference

to ascertain whether any person not a party, has a lien upon the

property, or any part thereof. But the court may direct or dispense

with such reference, in its discretion, where a party produces a search,

certified by the clerk, or by the clerk and register as the case

requires, of the county where the property is situated and it appears

therefrom, and by the affidavits, if any, produced therewith, that there

is no such outstanding lien. Except as otherwise expressly prescribed

in this article, the proceedings upon and subsequent to the reference

must be the same as prescribed by law where a reference is made in an

action for partition to ascertain whether there is a creditor not a

party who has a lien on the share or interest of a party.

Satisfaction or protection of lien. Where the interlocutory

judgment directs a sale, if the right of dower of the plaintiff is

inferior to any other lien upon the property, the judgment may, in the

discretion of the court, direct that the property be sold either subject

to the lien, or discharged from the lien; and, in the latter case, that

the officer making the sale pay the amount of the lien out of the

proceeds of the sale.

Payment of taxes, assessments and water rates out of proceeds.

Where a judgment, rendered in an action for dower directs a sale of the

real property, the officer making the sale must, out of the proceeds,

unless the judgment otherwise directs, pay all taxes, assessments, and

water rates which are liens upon the property sold and redeem the

property sold from any sales for unpaid taxes, assessments, or water

rates which have not apparently become absolute. The sums necessary to

make those payments and redemptions are deemed expenses of the sale.

Report of sale. Immediately after completing the sale and

executing the proper conveyance to the purchaser, the officer making the

sale must make and file with the clerk a report thereof, showing the

name of the purchaser and the purchase-price paid by him, or, if the

property was sold in parcels, the name of each purchaser and the price

and a description of the parcel sold to him, the sums which the officer

has paid out of the proceeds of the sale, pursuant to the interlocutory

judgment, the purpose for which each payment was made, the amount and

items of his fees and expenses, and the net amount of the proceeds,

after deducting the payments.

Final judgment upon confirming sale. Upon confirming the sale,

the court must ascertain, by a reference or otherwise, the rights and

interests of each of the parties in and to the proceeds of the sale, and

also what gross sum of money is equal to the value of the plaintiff's

dower in the net proceeds of the sale, calculated upon the principles

applicable to life annuities. The court must thereupon render final

judgment confirming the sale and directing that the gross sum so

ascertained be paid to the plaintiff, in full satisfaction of her right

of dower and that the remainder of the proceeds of the sale be

distributed among the persons entitled thereto.

Certain provisions made applicable. The provisions of law

relating to a sale in partition and to the distribution, investment, and

care of the proceeds, apply, as far as they are applicable, to a sale

made as prescribed in this article and to the distribution of the

proceeds of a sale, as prescribed in section 1079.

Action to recover property by revisioner or remainderman,

after determination of particular estate. Where a tenant for life, or

for a term of years, suffers a judgment to be taken against him, by

consent or by default, in an action for dower, the heir or person owning

the reversion or remainder, may, after the determination of the

particular estate, maintain an action to recover the property.

Collusive recovery not to prejudice infant. Where a widow, not

having a right to dower, recovers dower against an infant, by the

default or collusion of his guardian, the infant shall not be prejudiced

thereby; but when he comes of full age, he may bring an action of

ejectment against the widow, to recover the property so wrongfully

awarded for dower, with damages from the time when she entered into

possession, although that is more than six years before the commencement

of the action.

Petition for production of tenant for life. A person entitled

to claim real property after the death of another who has a prior estate

therein may, not oftener than once in each calendar year, apply by

petition to the supreme court, at a special term thereof, held within

the judicial district wherein the property or a part thereof is

situated, for an order directing the production of the tenant for life,

as prescribed in this article, by a person, named in the petition,

against whom an action of ejectment to recover the real property can be

maintained, if the tenant for life is dead or, where there is no such

person, by the guardian, husband, trustee, or other person, who has, or

is entitled to, the custody of the person of the tenant for life, or the

care of his estate.

Contents of petition. The petition must be in writing and

verified by the affidavit of the petitioner, to the effect that the

matters of fact therein set forth are true. It must contain:

a. A description of the real property and a statement of the

petitioner's interest therein and of such other facts as show that the

case is within the provisions of section 1101;

b. An averment that the petitioner believes that the person upon whose

life the prior estate depends is dead, together with a statement of the

grounds upon which the petitioner's belief is founded.

Service of petition and notice. A copy of the petition,

including the affidavit, together with notice of the time and place at

which the petition will be presented, must be personally served, at

least fourteen days before its presentation, upon the person required,

by the prayer thereof, to produce the tenant for life.

Proceedings upon presentation of petition. Upon the

presentation of the petition and affidavit, with due proof, by

affidavit, of service of a copy thereof, and of the notice, if

sufficient cause to the contrary is not shown by the adverse party, the

court must either issue a commission, as prescribed in the following

sections of this article or make an order, directing the adverse party,

at a time and place therein specified, before the court, or a referee

therein designated, to produce the person upon whose life the prior

estate depends, or, in default thereof, to prove that he is living.

Service of order; powers of court or referee. Where an order

requiring the production of the tenant for life, or proof that he is

living, is made as prescribed in section 1104, a certified copy thereof

must be served, at least fourteen days before the time therein

specified, upon the person required to make the production or proof, or

upon his attorney. Upon presentation of proof of service, by affidavit,

the court or the referee must, at the time and place specified in the

order, or at the time and place to which the hearing may be adjourned,

hear the allegations and proofs of the parties, respecting the identity

of any person produced, with the person whose death is in question or,

if the latter person is not produced, respecting the reasons for the

failure to produce him, and whether he is living. Where a referee is

appointed, he has the same powers, and is entitled to the same

compensation, as a referee appointed for the trial of an issue in a

civil action in a court of record.

Habeas corpus. If it appears, by affidavit, to the

satisfaction of the court, that the person required to be produced is

imprisoned within the state, for any cause, except upon a sentence for a

felony, or is kept or detained, within the state, by any person, the

court may, either before or after making the order for production, issue

a writ of habeas corpus to bring him before it, or before the referee,

as the case requires. The writ must be served and executed, and

disobedience thereto may be punished, as where a writ of habeas corpus

is issued, to inquire into the cause of the detention of a prisoner.

Report of referee. The referee must deliver his report to the

petitioner, or file it with the clerk, within ten days after the case is

closed. He must state therein whether any person was or was not produced

before him as being the person whose death is in question. He must

append thereto, in the form of depositions, the proofs, if any,

respecting the identity of any person so produced with the person whose

death is in question or if no one is so produced, upon the question

whether the latter person is living. He must also state in his report

his conclusions upon the questions controverted before him.

Dismissal of petition when order complied with. If it appears

to the satisfaction of the court, upon the referee's report and the

proofs thereto appended or, where a referee is not appointed, upon the

allegations and proofs of the parties before the court, that the party

required to produce the tenant for life, or to prove his existence, has

fully complied with the order, the court must make an order dismissing

the petition and requiring the petitioner to pay the costs of the

proceedings.

When life tenant deemed dead and petitioner let into

possession. If it appears from the referee's report, or upon the

hearing before the court, that the person upon whose life the prior

estate depends was not produced and if the party required to produce

him, or to prove his existence has not proved to the satisfaction of the

court that he is living, a final order must be made, declaring that he

is presumed to be dead, for the purpose of the proceedings, and

directing that the petitioner be forthwith let into possession of the

real property, as if that person was actually dead.

Commission to be issued if life tenant is without the state.

If before or at the time of the presentation of the referee's report to

the court, or, where a referee is not appointed, at any time before the

final order is made, the party upon whom the petition and notice are

served presents to the court presumptive proof, by affidavit, that the

person whose death was in question is, or lately was, at a place certain

without the state, the court must make an order requiring the petitioner

to take out a commission, directed to one or more persons residing at or

near that place, either designated in the order or to be appointed upon

a subsequent application for the commission, for the purpose of

obtaining a view of the person whose death is in question and of taking

such testimony respecting his identity as the parties produce. The order

must also direct that the proceedings upon the petition be stayed until

the return of the commission and that the petition be dismissed, with

costs, unless the petitioner takes out the commission within a time

specified in the order, and diligently procures it to be executed and

returned at his own expense.

General provisions respecting the commission. It is not

necessary, unless the court specially so directs, that the witnesses to

be examined should be named in the commission, or that interrogatories

should be annexed thereto. The commission must be executed and returned,

and the deposition taken must be filed and used, as prescribed by law

for depositions taken without the state for use within the state, except

as otherwise specially prescribed in this article.

Petitioner to give notice of its execution. The petitioner

must give to the adverse party, or his attorney, written notice of the

time when, and the place where, the commissioner or commissioners will

attend, for the purpose of executing the commission, as follows:

a. If the place, where the commission is to be executed, is within the

United States, or the dominion of Canada, he must give at least two

months' notice;

b. If it is within any of the West India islande, he must give at

least three months' notice;

c. In every other case, he must give at least four months' notice.

Notice may be given, as required by this section, by serving it as

prescribed by law for the service of a paper upon an attorney in a civil

action in the supreme court.

Execution thereof. The commissioner or commissioners possess

the same powers, and must proceed in the same manner, as a referee,

appointed by an order requiring the production of the tenant for life,

or proof of his existence; except that they cannot proceed unless a

person is produced before them, as being the person whose death is in

question. The return to the commission must expressly state whether any

person was or was not so produced. The testimony respecting the identity

of a person so produced must be taken, unless otherwise specially

directed by the court, as prescribed by law, for taking the deposition

of a witness upon oral interrogatories except that it is not necessary

to give any other notice of the time and place of examination than that

prescribed in section 1123.

Proceedings on return of commission. Upon the return of the

commission, the proceedings are the same as upon the report of a

referee, as prescribed in sections 1111 and 1112; but the court may, in

its discretion, receive additional proofs from either party.

Costs. Where costs of a special proceeding taken as prescribed

in this article are awarded, they must be fixed by the court at a gross

sum, not exceeding fifty dollars, in addition to disbursements. Where

provision is not specially made in this article for the award of costs,

they may be denied, or awarded to or against either party, as justice

requires.

Property; when restored. The possession of real property,

which has been awarded to the petitioner as prescribed in this article,

upon the presumption of the death of the person upon whose life the

prior estate depends, must be restored, by the order of the court, to

the person evicted, or to his heirs or legal representatives, upon the

petition of the latter and proof, to the satisfaction of the court, that

the person presumed to be dead is living. The proceedings upon such an

application are the same as prescribed in this article upon the

application of the person to whom possession is awarded.

Remedy of person evicted for rents and profits. A person

evicted as prescribed in this article may, if the presumption upon which

he is evicted is erroneous, maintain an action against the person who

has occupied the property, or his executor or administrator, to recover

the rents and profits of the property, during the occupation, while the

person upon whose life the prior estate depends is or was living.

Order not conclusive in ejectment. A final order made as

prescribed in this article, awarding to the petitioner the possession of

real property is presumptive evidence only, in an action of ejectment

brought against him by the person evicted, or in an action brought as

prescribed in section 1142, of the life or death of the person, upon

whose life the prior estate depends.

Action by joint tenant or tenant in common; may maintain

action against co-tenant. A joint tenant or a tenant in common of real

property, or his executor or administrator, may maintain an action to

recover his just proportion against his co-tenant who has received more

than his own just proportion, or against his executor or administrator.

Action by joint tenant, tenant in common or tenant by the

entirety for extinguishment of missing co-tenant's estate upon deposit

of its value. 1. Where real property is held by two or more persons in

their own right as tenants in common, joint tenants or tenants by the

entirety and one of such tenants is missing under circumstances which

afford reasonable ground to believe that he is dead, the other tenants

or tenant may maintain an action in the supreme court to obtain a

determination of the value of the estate of the missing co-tenant and a

judgment extinguishing the estate of the missing co-tenant upon payment

into court for his credit of the amount so determined to be the value of

his estate.

Persons known or unknown who are or may be the devisees or

distributees of a missing co-tenant may be joined as defendants in such

action.

2. (a) Service upon the missing co-tenant shall be made in the manner

provided for service in an action in which the complaint demands

judgment that the person to be served be excluded from a vested or

contingent interest in specific real property in this state. In

addition, the court, at any stage of such action, may direct that notice

of the action be published at or near the place where the co-tenant,

when last heard from, was known or believed to be.

(b) The court may, in its discretion, appoint a guardian ad litem to

represent the interests of the missing co-tenant, or of persons who are

or may be his devisees or distributees.

3. A finding of reasonable ground to believe that the missing

co-tenant is dead may be made, for purposes of this section, either (a)

upon proof that the co-tenant has been absent from his usual place of

abode for seven successsive years last past, and that a diligent search

has been made to discover evidence that he is living and that no such

evidence has been found, or (b) upon proof of other circumstances from

which the probability that the missing co-tenant is dead may reasonably

be inferred, although the period of his absence is less than seven

years, provided that such period is not less than one year.

4. Relief extinguishing the estate of the missing person shall be

deemed equitable and shall be granted in the discretion of the court.

However, no such relief shall be granted if the court shall find as a

fact that the missing person is dead. In such event, the judgment

dismissing the complaint shall state such determination, but shall not

be deemed an adjudication of death of the missing person for any purpose

other than the dismissal of the complaint and shall not be controlling

in any other action or proceeding, whether or not between the same

parties, in which the fact of death of the missing person is in issue.

5. The finding of reasonable ground to believe that the missing person

is dead shall be made, and the value of the property and of the estate

of the missing co-tenant shall be determined, by the court without a

jury or by a referee.

6. The value of the estates of tenants by the entirety shall be deemed

equal. The proportionate shares of joint tenants and tenants in common

shall be determined in like manner as in an action for partition.

7. Costs of the action, and fees and disbursements of a guardian ad

litem appointed to represent the interests of the missing co-tenant or

his devisees or distributees shall be assessed against the parties in

such proportions as the court shall direct and the part thereof assessed

against the missing person shall be charged against the value of the

estate of the missing person.

8. A judgment extinguishing the estate of the missing co-tenant shall

be conclusive even though the missing person was in fact alive, or was

in fact dead, at the date of the entry thereof, and shall be conclusive

against (a) any person claiming under the missing person by title

accruing or conveyance recorded after the filing of the judgment-roll,

or of the notice of pendency of the action, and (b) any person claiming

under the missing co-tenant who is made a party to the action. The

judgment shall also have like effect as a conveyance made by the missing

co-tenant or by the missing co-tenant and the other co-tenant or

co-tenants, conveying the premises to the co-tenant or co-tenants in

accordance with their interests resulting from the judgment. The court

may direct that an instrument of conveyance in conformity with the

judgment be executed and delivered by the sheriff in the name of the

co-tenant.

Action to sell preemptive rights against the city of New York.

1. In all cases where several persons are the owners, or claim to be the

owners of any real estate or chattels real lying within the bounds of

the city of New York, having different estates, or estates in common

therein, in possession, remainder, or reversion, and which such persons

shall, by virtue of such ownership, or claim to such ownership, be

entitled, or claim to be entitled, by law to a preemptive right to have,

take, or demand the grant or lease of any other land, or easement in

land, from such city, the supreme court shall have power, and such court

is hereby vested with full power and authority, on the application of

either of such owners, or of such city, to decree an absolute sale and

conveyance of such right of preemption, and to make such disposition of

the net moneys arising from such sale, after the payment of the costs

and expenses of the proceedings, as shall be just and proper, according

to the rights and interests of such several owners.

2. Whenever any owner shall reside in the city of New York, notice of

such intended application shall be served personally on such owner, or

by leaving the same at his dwelling-house with some person of suitable

age and discretion at least twenty days before such application is made;

and in all cases where such owner shall reside out of such city and

within any of the United States, and such place of residence be known to

the applicant, such notice shall be served by mail, addressed to such

owner at his place of residence, at least three months before such

application is made. Proof of such service by affidavit shall be made to

the court before any order of sale shall be made. Any of the parties to

such suit may become the purchaser on such sale.

3. In all cases where any owner shall be an infant, a guardian shall

be appointed for such infant, who shall give the like security, and

possess the like powers, and discharge the like duties as in cases for

the partition of lands.

4. Such sale shall be made and conducted on like notice by the like

officer, and in the same manner and form as sales of real estate on the

foreclosure of a mortgage by virtue of a decree or order of such court,

and a deed of conveyance for such right of preemption shall in like

manner be executed and delivered to the purchaser, which deed shall vest

in the purchaser absolutely all the claim, right, title, and interest of

the owner of such right of preemption, and every of them, of, in or to

such right of preemption thus sold and conveyed; provided always, in

every case the applicant shall give six weeks' previous notice of such

intended application if the owners entitled by law to such preemption

right are residents, and six months' previous notice of such intended

application if the owners entitled by law to such preemption right are

non-residents of the state, by publication for three months

successively, twice in each week, in two of the daily papers published

in such city prior to such application to the court for an order of

sale; and provided also, that the court shall be satisfied that such

order of sale shall not interfere with or impair the obligation

contained in any lease or contract made by such city to or with any

person or persons whatsoever.

5. Whenever a right of dower, whether inchoate or consummate, a

tenancy by curtesy, or any other estate for life or for years shall have

existed in the preemptive rights so sold and conveyed, the owner of such

particular estate in the rights sold is entitled to receive from the

moneys arising from such sale either a sum in gross or the earnings of a

sum invested for his benefit. The determination as to whether a sum in

gross or the earnings of a sum invested shall be awarded to the owner of

such particular estate shall be governed by the provisions of section

968 with respect to the proceeds of a sale in partition.

Separate action for mortgage debt. 1. Where final judgment for

the plaintiff has been rendered in an action to recover any part of the

mortgage debt, an action shall not be commenced or maintained to

foreclose the mortgage, unless an execution against the property of the

defendant has been issued upon the judgment to the sheriff of the county

where he resides, if he resides within the state, or if he resides

without the state, to the sheriff of the county where the judgment-roll

is filed; and has been returned wholly or partly unsatisfied.

2. The complaint shall state whether any other action has been brought

to recover any part of the mortgage debt, and, if so, whether any part

has been collected.

3. While the action is pending or after final judgment for the

plaintiff therein, no other action shall be commenced or maintained to

recover any part of the mortgage debt, including an action to foreclose

the mortgage, without leave of the court in which the former action was

brought. The procurement of such leave shall be a condition precedent to

the commencement of such other action and the failure to procure such

leave shall be a defense to such other action. For purposes of this

subdivision, in the event such other action is commenced without leave

of the court, the former action shall be deemed discontinued upon the

commencement of the other action, unless prior to the entry of a final

judgment in such other action, a defendant raises the failure to comply

with this condition precedent therein, or seeks dismissal thereof based

upon a ground set forth in paragraph four of subdivision (a) of rule

thirty-two hundred eleven of the civil practice law and rules. This

subdivision shall not be treated as a stay or statutory prohibition for

purposes of calculating the time within which an action shall be

commenced and the claim interposed pursuant to sections two hundred four

and two hundred thirteen of the civil practice law and rules.

4. If an action to foreclose a mortgage or recover any part of the

mortgage debt is adjudicated to be barred by the applicable statute of

limitations, any other action seeking to foreclose the mortgage or

recover any part of the same mortgage debt shall also be barred by the

statute of limitations.

Foreclosure of certain residential mortgages. 1. Any complaint

served in a proceeding initiated on a residential mortgage covering a

one to four family dwelling pursuant to this article must contain an

affirmative allegation that at the time the proceeding is commenced, the

plaintiff:

(a) is the owner and holder of the subject mortgage and note, or has

been delegated the authority to institute a mortgage foreclosure action

by the owner and holder of the subject mortgage and note; and

(b) has complied with all of the provisions of section five hundred

ninety-five-a of the banking law and any rules and regulations

promulgated thereunder, and section six-l or six-m of the banking law,

for loans governed by section six-l or six-m of the banking law, and

section thirteen hundred four of this article for all residential

mortgage loans covering a one to four family dwelling.

2. It shall be a defense to an action to foreclose a mortgage that the

terms of the home loan or the actions of the lender violate any

provision of section six-l or six-m of the banking law or section

thirteen hundred four of this article, for loans governed by these

provisions.

Defense of lack of standing; not waived. Notwithstanding the

provisions of subdivision (e) of rule thirty-two hundred eleven of the

civil practice law and rules, any objection or defense based on the

plaintiff's lack of standing in a foreclosure proceeding related to a

home loan, as defined in paragraph (a) of subdivision six of section

thirteen hundred four of this article, shall not be waived if a

defendant fails to raise the objection or defense in a responsive

pleading or pre-answer motion to dismiss. A defendant may not raise an

objection or defense of lack of standing following a foreclosure sale,

however, unless the judgment of foreclosure and sale was issued upon

defendant's default.

Foreclosures; required notices. 1. The foreclosing party in a

mortgage foreclosure action, involving residential real property shall

provide notice to:

(a) any mortgagor if the action relates to an owner-occupied

one-to-four family dwelling; and

(b) any tenant of a dwelling unit in accordance with the provisions of

this section.

2. The notice to any mortgagor required by paragraph (a) of

subdivision one of this section shall be delivered with the summons and

complaint. Such notice shall be in bold, fourteen-point type and shall

be printed on colored paper that is other than the color of the summons

and complaint, and the title of the notice shall be in bold,

twenty-point type. The notice shall be on its own page.

3. The notice to any mortgagor required by paragraph (a) of

subdivision one of this section shall appear as follows:

Help for Homeowners in Foreclosure

New York State Law requires that we send you this notice about the

foreclosure process. Please read it carefully.

Summons and Complaint

You are in danger of losing your home. If you fail to respond to the

summons and complaint in this foreclosure action, you may lose your

home. Please read the summons and complaint carefully. You should

immediately contact an attorney or your local legal aid office to obtain

advice on how to protect yourself.

Sources of Information and Assistance

The State encourages you to become informed about your options in

foreclosure. In addition to seeking assistance from an attorney or legal

aid office, there are government agencies and non-profit organizations

that you may contact for information about possible options, including

trying to work with your lender during this process.

To locate an entity near you, you may call the toll-free helpline

maintained by the New York State Department of Financial Services at

(enter number) or visit the Department's website at (enter web address).

Rights and Obligations

YOU ARE NOT REQUIRED TO LEAVE YOUR HOME AT THIS TIME. You have the right

to stay in your home during the foreclosure process. You are not

required to leave your home unless and until your property is sold at

auction pursuant to a judgment of foreclosure and sale.

Regardless of whether you choose to remain in your home, YOU ARE

REQUIRED TO TAKE CARE OF YOUR PROPERTY and pay property taxes in

accordance with state and local law.

Foreclosure rescue scams

Be careful of people who approach you with offers to "save" your home.

There are individuals who watch for notices of foreclosure actions in

order to unfairly profit from a homeowner's distress. You should be

extremely careful about any such promises and any suggestions that you

pay them a fee or sign over your deed. State law requires anyone

offering such services for profit to enter into a contract which fully

describes the services they will perform and fees they will charge, and

which prohibits them from taking any money from you until they have

completed all such promised services.

3-a. No later than sixty days after the effective date of this

subdivision, the department of financial services shall publish a

Consumer Bill Of Rights, in consultation with all stakeholders, which

shall detail the rights and responsibilities of the plaintiff and

defendant in a foreclosure proceeding. Such Bill of Rights shall be

updated on an annual basis and as appropriate.

4. The notice to any tenant required by paragraph (b) of subdivision

one of this section shall be delivered within ten days of the service of

the summons and complaint. Such notice shall be in bold, fourteen-point

type, and the paragraph of the notice beginning with the words "ALL

RENT-STABILIZED" and ending with the words "FULL HEARING IN COURT" shall

be printed entirely in capital letters and underlined. The foreclosing

party shall provide its name, address and telephone number on the

notice. The notice shall be printed on colored paper that is other than

the color of the summons and complaint, and the title of the notice

shall be in bold, twenty-point type. The notice shall be on its own

page. For buildings with fewer than five dwelling units, the notice

shall be delivered to the tenant, by certified mail, return receipt

requested, and by first-class mail to the tenant's address at the

property if the identity of the tenant is known to the plaintiff, and by

first-class mail delivered to "occupant" if the identity of the tenant

is not known to the plaintiff. For buildings with five or more dwelling

units, a legible copy of the notice shall be posted on the outside of

each entrance and exit of the building.

5. The notice required by paragraph (b) of subdivision one of this

section shall appear as follows:

Notice to Tenants of Buildings in Foreclosure

New York State Law requires that we provide you this notice about the

foreclosure process. Please read it carefully.

We, (name of foreclosing party), are the foreclosing party and are

located at (foreclosing party's address). We can be reached at

(foreclosing party's telephone number).

The dwelling where your apartment is located is the subject of a

foreclosure proceeding. If you have a lease, are not the owner of the

residence, and the lease requires payment of rent that at the time it

was entered into was not substantially less than the fair market rent

for the property, you may be entitled to remain in occupancy for the

remainder of your lease term. If you do not have a lease, you will be

entitled to remain in your home until ninety days after any person or

entity who acquires title to the property provides you with a notice as

required by section 1305 of the Real Property Actions and Proceedings

Law. The notice shall provide information regarding the name and address

of the new owner and your rights to remain in your home. These rights

are in addition to any others you may have if you are a subsidized

tenant under federal, state or local law or if you are a tenant subject

to rent control, rent stabilization or a federal statutory scheme.

ALL RENT-STABILIZED TENANTS AND RENT-CONTROLLED TENANTS ARE PROTECTED

UNDER THE RENT REGULATIONS WITH RESPECT TO EVICTION AND LEASE RENEWALS.

THESE RIGHTS ARE UNAFFECTED BY A BUILDING ENTERING FORECLOSURE STATUS.

THE TENANTS IN RENT-STABILIZED AND RENT-CONTROLLED BUILDINGS CONTINUE TO

BE AFFORDED THE SAME LEVEL OF PROTECTION EVEN THOUGH THE BUILDING IS THE

SUBJECT OF FORECLOSURE. EVICTIONS CAN ONLY OCCUR IN NEW YORK STATE

PURSUANT TO A COURT ORDER AND AFTER A FULL HEARING IN COURT.

If you need further information, please call the New York State

Department of Financial Services' toll-free helpline at (enter number)

or visit the Department's website at (enter web address).

6. The department of financial services shall prescribe the telephone

number and web address to be included in either notice.

7. The department of financial services shall post on its website or

otherwise make readily available the name and contact information of

government agencies or non-profit organizations that may be contacted by

mortgagors for information about the foreclosure process, including

maintaining a toll-free helpline to disseminate the information required

by this section.

Required prior notices. 1. Notwithstanding any other provision

of law, with regard to a home loan, at least ninety days before a

lender, an assignee or a mortgage loan servicer commences legal action

against the borrower, or borrowers at the property address and any other

address of record, including mortgage foreclosure, such lender, assignee

or mortgage loan servicer shall give notice to the borrower in at least

fourteen-point type which shall include the following:

"YOU MAY BE AT RISK OF FORECLOSURE. PLEASE READ THE FOLLOWING NOTICE

CAREFULLY"

"As of ___, your home loan is ___ days and ___ dollars in default.

Under New York State Law, we are required to send you this notice to

inform you that you are at risk of losing your home.

Attached to this notice is a list of government approved housing

counseling agencies in your area which provide free counseling. You can

also call the NYS Office of the Attorney General's Homeowner Protection

Program (HOPP) toll-free consumer hotline to be connected to free

housing counseling services in your area at 1-855-HOME-456

(1-855-466-3456), or visit their website at http://www.aghomehelp.com/.

A statewide listing by county is also available at

http://www.dfs.ny.gov/consumer/mortg nys np counseling agencies.htm.

Qualified free help is available; watch out for companies or people who

charge a fee for these services.

Housing counselors from New York-based agencies listed on the website

above are trained to help homeowners who are having problems making

their mortgage payments and can help you find the best option for your

situation. If you wish, you may also contact us directly at __________

and ask to discuss possible options.

While we cannot assure that a mutually agreeable resolution is

possible, we encourage you to take immediate steps to try to achieve a

resolution. The longer you wait, the fewer options you may have.

If you have not taken any actions to resolve this matter within 90

days from the date this notice was mailed, we may commence legal action

against you (or sooner if you cease to live in the dwelling as your

primary residence.)

If you need further information, please call the New York State

Department of Financial Services' toll-free helpline at (show number) or

visit the Department's website at (show web address).

IMPORTANT: You have the right to remain in your home until you receive

a court order telling you to leave the property. If a foreclosure action

is filed against you in court, you still have the right to remain in the

home until a court orders you to leave. You legally remain the owner of

and are responsible for the property until the property is sold by you

or by order of the court at the conclusion of any foreclosure

proceedings. This notice is not an eviction notice, and a foreclosure

action has not yet been commenced against you.

1-a. Notwithstanding any other provision of law, with regard to a

reverse mortgage home loan, at least ninety days before a lender, an

assignee or a mortgage loan servicer commences legal action against the

borrower or borrowers at the property address and any other addresses of

record, including reverse mortgage foreclosure, such lender, assignee or

mortgage loan servicer shall give notice to the borrower in at least

fourteen-point type except for the heading which shall be in at least

sixteen-point type which shall include the following:

"YOU COULD LOSE YOUR HOME TO FORECLOSURE.

PLEASE READ THE FOLLOWING NOTICE CAREFULLY.

Date

Borrower's address

Loan Number:

Property Address:

Dear Borrower(s):

As of ___________, we as your lender or servicer claim that your reverse

mortgage loan is ___ days in default. Under New York State Law, we are

required to send you this notice to inform you that you may be at risk

of losing your home.

We, the lender or servicer of your loan, are claiming that your reverse

mortgage loan is in default because you have not complied with the

following conditions of your loan:

_____ You are not occupying your home as your principal residence

_____ You did not submit the required annual certificate of occupancy

_____ The named borrower on the reverse mortgage has died

_____ You did not pay property taxes

{Servicer name} paid your property taxes for the following

time periods:___________________________

______________________ {quarter/year}

_____ You did not maintain homeowner's insurance

{Servicer name} purchased homeowner's insurance for you on the

following date(s) and for the following cost(s):

____________________________________

_____ You did not pay water/sewer charges

{Servicer name} paid water/sewer charges for you on the

following date(s) and for the following cost(s):

________________________

_____ You did not make required repairs to your home

If the claim is based on your failure to pay property or water and sewer

charges or maintain homeowner's insurance, you can cure this default by

making the payment of $____________ for the advancements we made towards

these payments on your behalf.

You have the right to dispute the claims listed above by contacting us,

by calling ___________ or sending a letter to __________________. This

may include proof of payments made for property taxes or water and sewer

charges or a current declaration page from your insurance company, or

any other proof to dispute the servicer's claim.

If you are in default for failure to pay property charges (property

taxes, homeowner's insurance and/or water/sewer charges) you may qualify

for a grant, loan, or re-payment plan to cure the default balance owed.

If you are in default due to the death of your spouse, you may be

considered an eligible "Non-Borrowing Spouse" under a HUD program which

allows you to remain in your home for the rest of your life.

If you are over the age of 80 and have a long term illness, you may also

qualify for the "At-Risk Extension," which allows you to remain in your

home for one additional year and requires an annual re-certification.

Attached to this notice is a list of government-approved housing

counseling agencies and legal services in your area which provide free

counseling. You can also call the NYS Office of the Attorney General's

Homeowner Protection Program (HOPP) toll-free consumer hotline to be

connected to free housing counseling services in your area at

1-855-HOME-456 (1-855-466-3456), or visit their website at

http://www.aghomehelp.com. A statewide listing by county is also

available at

http://www.dfs.ny.gov/consumer/mortg nys np counseling agencies.htm.

You may also call your local Department of Aging for a referral or call

311 if you live in New York City.

Qualified free help is available; watch out for companies or people who

charge a fee for these services.

You may also contact us directly at __________ and ask to discuss all

possible options to allow you to cure your default and prevent the

foreclosure of your home. While we cannot ensure that a resolution is

possible, we encourage you to take immediate steps to try to achieve a

resolution. The longer you wait, the fewer options you may have.

If you have not taken any actions to resolve this matter within 90 days

from the date this notice was mailed, we may commence legal action

against you (or sooner if you cease to live in the dwelling as your

primary residence).

If you need further information, please call the New York State

Department of Financial Services' toll-free helpline at 877-226-5697 or

visit the Department's website at http://www.dfs.ny.gov.

IMPORTANT: You have the right to remain in your home until you receive a

court order telling you to leave the property. If a foreclosure action

is filed against you in court, you still have the right to remain in the

home until a court orders you to leave. You legally remain the owner of

and are responsible for the property until the property is sold by you

or by order of the court at the conclusion of any foreclosure

proceedings. This notice is not an eviction notice, and a foreclosure

action has not yet been commenced against you."

A lender, assignee or mortgage loan servicer of a reverse mortgage

home loan which provides notice to the borrower as required by this

subdivision is not required to provide notice to such borrower with

regard to such loan pursuant to subdivision one of this section.

2. The notices required by this section shall be sent by such lender,

assignee (including purchasing investor) or mortgage loan servicer to

the borrower, by registered or certified mail and also by first-class

mail to the last known address of the borrower, and to the residence

that is the subject of the mortgage. The notices required by this

section shall be sent by the lender, assignee or mortgage loan servicer

in a separate envelope from any other mailing or notice. Notice is

considered given as of the date it is mailed. The notices required by

this section shall contain a current list of at least five housing

counseling agencies serving the county where the property is located

from the most recent listing available from department of financial

services. The list shall include the counseling agencies' last known

addresses and telephone numbers. The department of financial services

shall make available on its websites a listing, by county, of such

agencies. The lender, assignee or mortgage loan servicer shall use such

lists to meet the requirements of this section.

3. The ninety day period specified in the notices contained in

subdivisions one and one-a of this section shall not apply, or shall

cease to apply, if the borrower has filed for bankruptcy protection

under federal law, or if the borrower no longer occupies the residence

as the borrower's principal dwelling. Nothing herein shall relieve the

lender, assignee or mortgage loan servicer of the obligation to send

such notices, which notices shall be a condition precedent to commencing

a foreclosure proceeding.

4. The notices required by this section and the ninety day period

required by subdivisions one and one-a of this section need only be

provided once in a twelve month period to the same borrower in

connection with the same loan and same delinquency. Should a borrower

cure a delinquency but re-default in the same twelve month period, the

lender shall provide a new notice pursuant to this section.

5. For any borrower known to have limited English proficiency, the

notices required by subdivisions one and one-a of this section shall be

in the borrower's native language (or a language in which the borrower

is proficient), provided that the language is one of the six most common

non-English languages spoken by individuals with limited English

proficiency in the state of New York, based on United States census

data. The department of financial services shall post the notices

required by subdivisions one and one-a of this section on its website in

the six most common non-English languages spoken by individuals with

limited English proficiency in the state of New York, based on the

United States census data.

6. (a) (1) "Home loan" means a loan, including an open-end credit

plan, in which:

(i) The borrower is a natural person;

(ii) The debt is incurred by the borrower primarily for personal,

family, or household purposes;

(iii) The loan is secured by a mortgage or deed of trust on real

estate improved by a one to four family dwelling, or a condominium unit,

in either case, used or occupied, or intended to be used or occupied

wholly or partly, as the home or residence of one or more persons and

which is or will be occupied by the borrower as the borrower's principal

dwelling; and

(iv) The property is located in this state.

(2) A home loan shall include a loan secured by a reverse mortgage

that meets the requirements of clauses (i) through (iv) of subparagraph

one of this paragraph.

(b) "Lender" means a mortgage banker as defined in paragraph (f) of

subdivision one of section five hundred ninety of the banking law or an

exempt organization as defined in paragraph (e) of subdivision one of

section five hundred ninety of the banking law.

7. The department of financial services shall prescribe the telephone

number and web address to be included in the notice.

Notice to tenants. 1. Definitions. For the purposes of this

section, the following definitions shall apply:

(a) "Residential real property" shall mean real property located in

this state improved by any building or structure that is or may be used,

in whole or in part, as the home or residence of one or more persons,

and shall include any building or structure used for both residential

and commercial purposes.

(b) "Successor in interest" shall mean any person or entity who or

which acquires title in a residential real property as a result of a

judgment of foreclosure and sale, or other disposition during the

pendency of the foreclosure proceeding, or at any time thereafter but

prior to the expiration of the time period as provided for in

subdivision two of this section.

(c) "Tenant" shall mean any person who appears as a lessee on a lease

of one or more dwelling units of a residential real property that is

subordinate to the mortgage on such residential real property; or who at

such time is a party to an oral or implied rental agreement with the

mortgagor and obligated to pay rent to the mortgagor or such mortgagor's

representative, for the use or occupancy of one or more dwelling units

of a residential real property.

2. Notwithstanding any other provision of law, a tenant of a unit not

subject to rent control or rent stabilization shall have the right to

remain in occupancy of the unit of the subject residential real property

where he or she resides on the date of service of the notice required by

subdivision three of this section for the greater of: (a) a period of

ninety days from the date of the service of such notice; or (b) for the

remainder of the lease term if the tenant occupied the premises at the

commencement of the foreclosure action or received a notice pursuant to

section thirteen hundred three of this article; or (c) for the remainder

of the lease term, provided that the lease agreement was entered into in

good faith pursuant to this section and federal law, up to a maximum of

three years, for tenants who did not occupy the premises at the

commencement of the foreclosure action and therefore did not receive the

original notice of service required pursuant to section thirteen hundred

three of this article; provided that if a successor in interest who

acquires title to such residential real property intends to occupy a

single unit as his or her primary residence and the unit is not subject

to a federal or state statutory system of subsidy or other federal or

state statutory scheme, the successor may limit for one unit only, the

tenant's right of occupancy to ninety days. For a lease to qualify under

this subdivision, the tenant under such lease may not be the owner of

the residential real property, and such lease must require the payment

of rent for such unit that is not substantially less than the fair

market rent for the unit, unless the unit is subject to federal or state

statutory system of subsidy or other federal or state statutory scheme.

A tenant under paragraph (a), (b), or (c) of this subdivision shall

continue such tenancy subject to any limitations in this subdivision

under the same terms and conditions as were in effect at the time of

entry of the judgment of foreclosure and sale, or if no such judgment

was entered, upon the terms and conditions that were in effect at the

time of the transfer of ownership of such property. For purposes of this

section, "fair market rent" shall mean rent for a unit of residential

real property of similar size, location and condition.

3. Notwithstanding any other provision of law, and consistent with

subdivision two of this section, a successor in interest of residential

real property shall provide written notice to all tenants in the same

manner as required by subdivision four of section thirteen hundred three

of this article: (a) that they are entitled to remain in occupancy of

such property for the remainder of the lease term, or a period of ninety

days from the date of mailing of such notice, whichever is greater, on

the same terms and conditions as were in effect at the time of entry of

the judgment of foreclosure and sale, or if no such judgment was

entered, upon the terms and conditions as were in effect at the time of

transfer of ownership of such property; and (b) of the name and address

of the new owner. Any person or entity who or which becomes a successor

in interest after the issuance of the ninety-day notice provided for in

this subdivision, shall notify all tenants of its name and address and

shall assume such interest subject to the right of the tenant to

maintain possession as provided in this subdivision.

4. Acceptance of rental payments by any successor in interest on terms

provided in subdivision three of this section shall not affect the right

of the successor in interest to evict such tenant, as provided by law,

upon the expiration of the time period as provided in subdivision two of

this section or earlier if the tenant does not pay rent pursuant to any

lease or oral or implied rental agreement in effect at the time of

issuance of the judgment of foreclosure, or if no such judgment was

issued, upon the terms and conditions as were in effect at the time of

transfer of ownership of such property.

5. The rights conferred upon a tenant by subdivision two of this

section shall be in addition to any other rights of such tenant, under

law, including those rights conferred upon: (a) any tenant not named in

the foreclosure action; or (b) any tenant whose tenancy is subsidized by

the federal government, this state or any political subdivision of this

state; or (c) any tenant whose tenancy is subject to rent control, rent

stabilization, or federal statutory schemes.

Filing with superintendent. 1. Each lender, assignee or

mortgage loan servicer shall file with the superintendent of financial

services (superintendent) within three business days of the mailing of

the notice required by subdivision one of section thirteen hundred four

of this article or subsection (f) of section 9-611 of the uniform

commercial code the information required by subdivision two of this

section. Notwithstanding any other provision of the laws of this state,

this filing shall be made electronically as provided for in subdivision

three of this section. Any complaint served in a proceeding initiated

pursuant to this article shall contain, as a condition precedent to such

proceeding, an affirmative allegation that at the time the proceeding is

commenced, the plaintiff has complied with the provisions of this

section.

2. Each filing delivered to the superintendent shall be on such form

as the superintendent shall prescribe, and shall include at a minimum,

the name, address, last known telephone number of the borrower, and the

amount claimed as due and owing on the mortgage, and such other

information as will enable the superintendent to ascertain the type of

loan at issue. The superintendent may subsequently request such readily

available information as may be reasonably necessary to facilitate a

review of whether the borrower might benefit from counseling or other

foreclosure prevention services.

3. Within one hundred eighty days of the effective date of this

section, or such later time as the superintendent may determine, the

superintendent shall develop with the assistance of the commissioner of

the division of housing and community renewal, an electronic database

that shall be capable of receiving all filings required by this section.

4. The information provided to the superintendent pursuant to this

section shall not be subject to article six of the public officers law

or paragraphs (a), (c) and (d) of subdivision one or subdivision six of

section ninety-four of the public officers law. All such information

shall be used by the superintendent exclusively for the purposes of

monitoring on a statewide basis the extent of foreclosure filings within

this state, to perform an analysis of loan types which were the subject

of a pre-foreclosure notice and directing as appropriate available

public and private foreclosure prevention and counseling services to

borrowers at risk of foreclosure. The superintendent may share

information contained in the database with housing counseling agencies

designated by the division of housing and community renewal as well as

with other state agencies with jurisdiction over housing, for the

purpose of coordinating or securing help for borrowers at risk of

foreclosure.

5. The superintendent is hereby authorized to promulgate such rules

and regulations as shall be necessary to implement the purposes of this

section.

Duty to maintain foreclosed property. 1. A plaintiff who

commences a mortgage foreclosure action, including a lender, an assignee

or a mortgage loan servicer, seeking a judgment of foreclosure and sale

pursuant to section thirteen hundred fifty-one of this article,

involving residential real property, as defined in section thirteen

hundred five of this article, that is vacant, or becomes vacant after

commencement of the action or the issuance of such judgment, or is

abandoned by the mortgagor but occupied by a tenant, as defined under

section thirteen hundred five of this article, shall maintain such

property until such time as ownership has been transferred through the

closing of title in foreclosure, or other disposition, and the deed for

such property has been duly recorded; provided, however, that if a

municipality or governmental entity holds a mortgage subordinate to one

or more mortgages on the residential real property, the municipality or

governmental entity shall not be subject to the requirements of this

section.

2. Such plaintiff shall have the right to peaceably enter upon such

property, or to cause others to peaceably enter upon the property for

the limited purpose of inspections, repairs and maintenance as required

by this section, or as otherwise ordered by court; provided, however,

that if the property is occupied by a tenant, at least seven days notice

must be given to such tenant, unless emergency repairs are required in

which case reasonable notice shall be provided to the tenant.

(a) A residential property is deemed vacant for the purposes of this

section if the residential property meets the definition of a "vacant

and abandoned residential property" under section thirteen hundred nine

of this article or there is an order or finding by a court of competent

jurisdiction or by the municipality in which the residential property is

located that the property is vacant;

(b) A residential property is deemed abandoned by the mortgagor if:

(i) All owners of the residential property have indicated in writing

that they have abandoned all rights of possession to the residential

property;

(ii) There is an order or finding by a court of competent jurisdiction

or by the municipality in which the residential property is located,

either on the initiative of the court or municipality or in response to

a complaint filed with the court or municipality by a tenant in lawful

occupancy, that the property was abandoned by the mortgagor; or

(iii) The plaintiff receives a complaint from a tenant in lawful

occupancy of the residential property indicating that the owner of the

residential property has ceased maintaining the property and:

(1) The plaintiff posts a notice on the residential property that

would be reasonably visible to the owner of the property indicating that

the property is deemed abandoned and the owner must contact the

plaintiff at a number listed on the notice if the owner still occupies

or claims the right to occupy the property; and

(2) The plaintiff has received no communication within one week of

posting the notice of the owner's intention to occupy the property.

(c) Such plaintiff shall have the right to peaceably enter upon such

property, or to cause others to peaceably enter upon the property for

the limited purpose of inspections, repairs and maintenance as required

by this section, or as otherwise ordered by court; provided, however,

that if the property is occupied by a tenant, at least seven days notice

must be given to such tenant, unless emergency repairs are required in

which case reasonable notice shall be provided to the tenant.

(d) Any plaintiff that enters a residential property without a good

faith basis for believing that the property is vacant or abandoned and

who does not comply with the requirements of paragraph (b) of this

subdivision shall be subject to a penalty of five hundred dollars that

may be sought by the owner of the residential property or any tenant in

lawful possession of such property. This penalty may be recovered by a

property owner or tenant in lawful occupancy of such property either

within the foreclosure action pending against the subject residential

real property or in a separate action commenced to collect the penalty.

3. The municipality in which such residential real property is

located, any tenant lawfully in possession, and a board of managers of a

condominium in which the premises are located or a homeowners

association if said premises are subject to the rules and regulations of

such an association, shall have the right to enforce the obligations

described in this section in any court of competent jurisdiction after

at least seven days notice to the plaintiff in the foreclosure action

unless emergency repairs are required. Any entity acting pursuant to

this subdivision shall have a cause of action in any court of competent

jurisdiction against the plaintiff in the foreclosure action to recover

costs incurred as a result of maintaining the property. The authority

provided by this subdivision shall be in addition to, and shall not be

deemed to diminish or reduce, any rights of the parties described in

this section under existing law against the mortgagor of such property

for failure to maintain such property.

4. In the event the mortgagor of the property commences a proceeding

in bankruptcy court prior to the completion of the public auction

ordered in the judgment of sale, the duties created by this section

shall be suspended during the pendency of the bankruptcy proceeding or

until such time as an order has been entered in that proceeding lifting

or removing the automatic stay of the foreclosure sale.

5. For the purposes of this section "maintain" shall mean keeping the

subject property in a manner that is consistent with the standards set

forth in the New York property maintenance code chapter 3 sections 301,

302 (excluding 302.2, 302.6 and 302.8), 304.1, 304.3, 304.7, 304.10,

304.12, 304.13, 304.15, 304.16, 307.1, and 308.1; provided, however,

that if the property is occupied by a tenant, then such property must

also be maintained in a safe and habitable condition.

6. A plaintiff shall be relieved of its responsibilities to maintain

the residential real property that is the subject of a foreclosure

action for the period that a receiver of such property is serving.

7. Nothing contained in this section shall diminish in any way the

obligations pursuant to any state or local law of the mortgagor of the

property or a receiver of rents and profits appointed in an action to

foreclose a mortgage to maintain the property prior to the closing of

title pursuant to a foreclosure sale.

8. This section shall not preempt, reduce or limit any rights or

obligations imposed by any local laws with respect to property

maintenance and the locality's ability to enforce those laws.

Inspecting, securing and maintaining vacant and abandoned

residential real property. Notwithstanding any other provision of law to

the contrary, the following subdivisions of this section shall only

apply to vacant and abandoned one to four family residential real

property, and any duties and responsibilities so prescribed by this

section shall only apply to the first lien mortgage holder. Vacant and

abandoned residential real property shall be defined pursuant to section

thirteen hundred nine of this article. For each calendar year this

section shall not apply to state or federally chartered banks, savings

banks, savings and loan associations, or credit unions which: (1)

originate, own, service and maintain their mortgages or a portion

thereof; and (2) have less than three-tenths of one percent of the total

loans in the state which they either originate, own, service, or

maintain for the calendar year ending December thirty-first of the

calendar year ending two years prior to the current calendar year. For

any state or federally chartered banks, savings banks, savings and loan

associations, or credit unions which originate, own, service and

maintain between three-tenths of one percent and five-tenths of one

percent of the total loans in the state which they either originate,

own, service, or maintain for the calendar year ending December

thirty-first of the calendar year ending two years prior to the current

calendar year, the application of this section shall be prospective

only.

1. Subject to bankruptcy filings, cease and desist orders, threats of

violence, or active loss mitigation efforts, within ninety days of a

borrower's delinquency, the servicer authorized to accept payment of the

loan shall complete an exterior inspection of the subject property to

determine occupancy. Thereafter, throughout the delinquency of the loan,

the servicer shall conduct an exterior inspection of the property every

twenty-five to thirty-five days, at different times of the day.

2. If a borrower is delinquent and subject to property inspections

pursuant to subdivision one of this section, the servicer shall secure

and maintain the residential real property pursuant to subdivisions

three, four, five, six, and seven of this section where the servicer has

a reasonable basis to believe that the residential real property is

vacant and abandoned, as defined in section thirteen hundred nine of

this chapter, and is not otherwise restricted from accessing the

property.

3. Within seven business days of determining that the property is

vacant and abandoned based on the criteria set forth in subdivision two

of this section, the servicer shall post a notice on an easily

accessible part of the property that would be reasonably visible to the

borrower, property owner or occupant, and monitor the property for any

change in occupancy or contact with the borrower, property owner or

occupant, and monitor to ensure that the notice remains posted so long

as the duty to maintain applies. The posted notice shall provide the

servicer's toll free number or similar contact information.

4. If the posted notice is not responded to or persists for seven

consecutive calendar days without contact with the borrower, property

owner or occupant indicating that the property is not vacant or

abandoned, or if an emergent property condition that could reasonably

damage, destroy or harm the property arises, the servicer shall:

(a) in cases where the property contains two or more points of ingress

or egress, replace no more than one door lock to provide subsequent

access to the property;

(b) secure, replace or board up broken doors and windows;

(c) secure any part of the property that may be deemed an attractive

nuisance including, but not limited to, a water feature that could

create a drowning risk, refrigerator or freezer units, outbuildings,

wells or septic tanks;

(d) take reasonable measures to ensure that pipes, ducts, conductors,

fans and blowers do not discharge harmful gases, steam, vapor, hot air,

grease, smoke, odors or other gaseous or particulate waste directly upon

abutting or adjacent public or private property or that of another

tenant;

(e) where appropriate, winterize the applicable plumbing and heating

systems;

(f) provide basic utilities including, but not limited to, water,

electricity, natural gas, propane and sewer service, as appropriate and

when allowed by the local utility provider, that are needed for the

operation of a sump pump or dehumidifier, or when there are jointly

owned or shared utilities with adjoining properties or units, except for

turning off water service to prevent flooding or water leaks in the

property, or when other utility service could reasonably create a hazard

to the property or an unauthorized occupant or person entering the

property;

(g) remove and remediate any significant health and safety issues,

including outstanding code violations;

(h) take reasonable measures to prevent the growth of harmful mold;

(i) respond to government inquiries regarding property condition,

subject to restrictions regarding financial privacy;

(j) ensure that the notice required to be posted in subdivision three

of this section remains posted on an easily accessible part of the

property that would be reasonably visible to the borrower, property

owner or occupant so long as the duty to maintain applies; and

(k) pay homeowners' association, condominium common charges as defined

in section three hundred thirty-nine-e of the real property law or

cooperative fees as needed to maintain the property.

5. At no time shall a servicer remove personal property from the

property unless:

(a) the personal property poses a significant health and safety issue;

or

(b) there is an uncontested order to do so by a governmental entity.

6. A servicer who has determined a property to be vacant and abandoned

and who has secured the same shall take reasonable and necessary actions

to maintain the property until the earlier of the following events:

(a) an occupant of the property has asserted his or her right to

occupy the property, or the servicer or its agents have received threats

of violence;

(b) the borrower has filed for bankruptcy;

(c) a court has ordered the servicer to stop any maintenance of the

property;

(d) a homeowners' association or cooperative has prevented the

servicer from gaining access to or maintaining the property;

(e) the property has been sold or transferred to a new owner;

(f) the servicer or investor subject to the provisions of this section

has released the lien on the property; or

(g) the mortgage note has been assigned, transferred or sold to

another servicer.

7. Reasonable and necessary actions to maintain the property include,

but are not limited to:

(a) ensuring that the property remains secure pursuant to subdivisions

four, five and six of this section; and

(b) maintaining property in a manner consistent with the standards set

forth in sections 301, 302 (excluding 302.2, 302.6 and 302.8), 304.1,

304.3, 304.7, 304.10, 304.12, 304.13, 304.15, 304.16, 307.1, and 308.1

of the New York property maintenance code, to the extent that the

mortgage servicer or its agents are able to obtain necessary or required

permits or approvals.

8. (a) Violations of this section may be heard before a hearing

officer or a court of competent jurisdiction. If it shall appear to the

satisfaction of the hearing officer or the court, based on the

preponderance of the evidence, that the mortgagee or agent of a

mortgagee has violated this section, a civil penalty may be issued by

the hearing officer or the court in the amount of up to five hundred

dollars per day per property for each day the violation persisted.

(b) The superintendent of financial services may, as appropriate and

in his or her sole discretion, pursue any suspected violation of this

section. Before taking such action, the superintendent shall give the

lender, assignee or mortgage loan servicer at least seven days' notice

of the violation.

(c) In addition to the authority granted to the department of

financial services, the municipality in which such residential real

property is located, shall have the right to enforce the obligations

described in this section in any court of competent jurisdiction after

at least seven days' notice to the lender, assignee or mortgage loan

servicer, unless the property requires emergency repairs to address a

threat to public health, safety or welfare, in which case the

municipality may enter and maintain the property to cure the emergency,

provided however, notice shall be provided to the lender, assignee or

mortgage loan servicer as soon as practicable. Any municipality acting

pursuant to this subdivision shall have a cause of action in any court

of competent jurisdiction against the lender, assignee or mortgage loan

servicer to recover costs incurred as a result of maintaining the

property. Such entity shall provide the department of financial services

with written notice at least ten days prior to bringing an action

pursuant to this subdivision; provided, however, that failure to comply

with this notice requirement shall not be a defense to the entity

proceeding pursuant to this subdivision. The authority provided by this

subdivision shall be in addition to, and shall not be deemed to diminish

or reduce, any rights of the parties described in this section under

existing law against the mortgagor of such property for failure to

maintain such property. Any civil penalty imposed pursuant to paragraph

(a) of this subdivision in an action brought by a municipality pursuant

to this paragraph shall be retained by such municipality.

(d) The department of financial services is authorized and empowered

to adopt such rules and regulations as may, in the judgment of the

superintendent of financial services, be necessary for the effective

implementation, administration, operation and enforcement of this

section.

9. A servicer who peacefully enters a vacant and abandoned property in

order to maintain pursuant to this section shall be immune from

liability when such servicer is making reasonable efforts to comply with

the statute.

10. The provisions of this section are subject to federal laws, court

orders and investor and insurer guidelines.

11. For all state or federally chartered banks, savings banks, savings

and loan associations, credit unions, or servicers for which the

provisions of this section do not apply, pursuant to the opening

paragraph of this section, any agreement between such state or federally

chartered banks, savings banks, savings and loan associations, credit

unions, or servicers and the department of financial services that is

associated with the maintenance and repair of vacant and abandoned

property shall remain in full force and effect between the

aforementioned parties for so long as the terms and conditions of such

agreement remain in effect.

12. The department of financial services shall issue such rules and

regulations necessary to implement the terms of this section, including

but not limited to rules and regulations pertaining to the reporting of

financial information that state or federally chartered banks, savings

banks, savings and loan associations, or credit unions must provide to

implement this section.

13. No local law, ordinance, or resolution shall impose a duty to

maintain vacant and abandoned property as defined in section thirteen

hundred nine of this article in a manner inconsistent with the

provisions of this section that are related to maintenance as provided

under subdivisions three, four, five, six and seven of this section, or

establish related penalties nor other monetary obligations, with respect

to a state or federally chartered bank, savings bank, savings and loan

association or credit union that originates, owns, services or maintains

a mortgage related to such property.

No local law, ordinance, or resolution shall impose a duty to maintain

vacant and abandoned property upon any state or federally chartered

bank, savings bank, savings and loan association or credit union that

originates, owns, services or maintains a mortgage related to such

property for which the provisions of this section, pursuant to the

opening paragraph of this section, do not apply.

Expedited application for judgment of foreclosure and sale for

vacant and abandoned property. 1. The plaintiff in any foreclosure

proceeding may make an application by notice of motion or order to show

cause for a judgment of foreclosure and sale on the grounds that the

subject property is vacant and abandoned. The motion or order to show

cause shall include the last known address of the borrower and the

property address. Notwithstanding subdivision (m) of rule thirty-four

hundred eight of the civil practice law and rules no such application

may be made until the defendant's time to answer the complaint in the

foreclosure proceeding shall have expired. Such application shall be

served on defendant, regardless of whether a defendant has filed an

answer or appeared in the case. Such application shall: (a) state in

bold letters, on the first page of the notice of motion or order to show

cause: (i) "The plaintiff in this lawsuit has applied for an expedited

judgment of foreclosure and sale of your property on the ground that it

is vacant and abandoned"; (ii) "Your property may be foreclosed upon and

sold without any further proceedings if you do not respond to this

motion by or on the return date, which is ___"; (iii) "You have the

right to stay in your property until a court orders you to leave"; and

(iv) "You may respond to this motion by either submitting a written

document or by appearing in court on the return date."; (b) be supported

by affidavit and other proof, including but not limited to: (i) proof of

ownership of the mortgage and the note, (ii) photographs evidencing that

the subject property is vacant and abandoned as provided for under

subdivision two of this section, and (iii) if available, utility company

records or other documentation evidencing the vacant and abandoned

status of the premises; (c) set forth, supported by documentary

evidence, the sums alleged to be due and owing upon the subject mortgage

and note, including the current principal balance and a detailed and

itemized account of each fee, each cost, and a calculation of interest

accrued; and (d) request that the court confirm the sums due and owing

upon the subject mortgage and note without appointment of a referee. The

court shall promptly send a notice to the defendant of the plaintiff's

notice of motion or order to show cause for a judgement of foreclosure

and sale on the grounds that the subject property is vacant and

abandoned. The notice shall advise the defendant that the lender is

asking the court to expedite a judgement of foreclosure and sale of his

or her property on the ground that it is vacant and abandoned and about

the time and place of the court date. The notice shall be in a form

prescribed by the courts, or, at the discretion of the courts.

2. (a) As used in this section, "vacant and abandoned residential

property" means residential real property, as defined in section

thirteen hundred five of this article, with respect to which the

plaintiff has proven, by preponderance of the evidence, that it has

conducted at least three consecutive inspections of such property, with

each inspection conducted twenty-five to thirty-five days apart and at

different times of the day, and at each inspection (i) no occupant was

present and there was no evidence of occupancy on the property to

indicate that any persons are residing there; and (ii) the residential

real property was not being maintained in a manner consistent with the

standards set forth in New York property maintenance code chapter 3

sections 301, 302 (excluding 302.2, 302.6, 302.8), 304.1, 304.3, 304.7,

304.10, 304.12, 304.13, 304.15, 304.16, 307.1 and 308.1.

(b) Residential real property will also be deemed vacant and abandoned

if:

(i) A court or other appropriate state or local governmental entity

has formally determined, following due notice to the borrower at the

property address and any other known addresses, that such residential

real property is vacant and abandoned; or

(ii) Each borrower and owner has separately issued a sworn written

statement, expressing his or her intent to vacate and abandon the

property and an inspection of the property shows no evidence of

occupancy to indicate that any persons are residing there.

(c) Evidence of lack of occupancy shall include but not be limited to

the following conditions: (i) overgrown or dead vegetation; (ii)

accumulation of newspapers, circulars, flyer or mail; (iii) past due

utility notices, disconnected utilities, or utilities not in use; (iv)

accumulation of trash, refuse or other debris; (v) absence of window

coverings such as curtains, blinds, or shutters; (vi) one or more

boarded, missing or broken windows; (vii) the property is open to casual

entry or trespass; or (viii) the property has a building or structure

that is or appears structurally unsound or has any other condition that

presents a potential hazard or danger to the safety of persons.

(d) Residential real property will not be deemed vacant and abandoned

if, on the property:

(i) There is an unoccupied building that is undergoing construction,

renovation, or rehabilitation that is proceeding diligently to

completion;

(ii) There is a building occupied on a seasonal basis, but otherwise

secure;

(iii) There is a building that is secure, but is the subject of a

probate action, action to quiet title, or other ownership dispute of

which the servicer has actual notice;

(iv) There is a building damaged by a natural disaster and one or more

owner intends to repair and reoccupy the property; or

(v) There is a building occupied by the mortgagor, a relative of the

mortgagor or a tenant lawfully in possession.

3. In connection with an application for a judgment of foreclosure and

sale on the ground that the subject property is vacant and abandoned,

the court may require the plaintiff or an agent to appear to provide

testimony in support of the application.

4. The court shall make a written finding as soon as practicable as to

whether the plaintiff has proved that the property to be foreclosed upon

pursuant to this section is vacant and abandoned pursuant to subdivision

two of this section and, if the court determines that the property is

vacant and abandoned, it shall set forth: (a) the evidence relied upon

by the court in finding that the property is vacant and abandoned; (b)

the evidence showing that the plaintiff is the owner and holder of the

subject mortgage and note, or has been delegated the authority to

institute a mortgage foreclosure action by the owner of same; and (c)

the sums due and owing upon the subject mortgage and note after a review

of the detailed and itemized account of each fee, each cost, and a

calculation of interest accrued.

5. With respect to foreclosure actions brought pursuant to this

section:

(a) A judgment of foreclosure and sale shall not be entered pursuant

to this section if the mortgagor or any other defendant has filed an

answer, appearance, other written objection that is not withdrawn, or

has otherwise demonstrated an intention to contest the foreclosure

action.

(b) A denial of a judgment of foreclosure and sale pursuant to this

section where the court does not find that the mortgaged property is

vacant and abandoned shall not be deemed to be on the merits for

purposes of any other proceeding with respect to such real property.

6. It shall be unlawful for a lender, assignee, mortgage loan

servicer, or a third party agent or other person acting on behalf of a

lender, assignee or mortgage loan servicer to enter residential real

property that is not vacant and abandoned for the purpose of forcing,

intimidating, harassing or coercing a lawful occupant of such

residential property to vacate that property in order to render the

property vacant and abandoned, or to otherwise force, intimidate,

harass, or coerce a lawful occupant of residential real property to

vacate that property so that it may be deemed vacant and abandoned,

provided however, a lender, assignee, mortgage loan servicer, or a third

party agent or other person acting on behalf of a lender, assignee or

mortgage loan servicer who peacefully enters a vacant and abandoned

property in order to render the property vacant and abandoned shall be

immune from liability when such lender, assignee, mortgage loan

servicer, third party agent or other person acting on behalf of a

lender, assignee or mortgage loan servicer is making reasonable efforts

to comply with this section.

7. The chief administrative judge of the courts shall adopt such rules

as he or she deems necessary to expeditiously implement the provisions

of this section.

Vacant and abandoned property; statewide vacant and abandoned

property electronic registry. 1. The department of financial services

shall maintain a statewide vacant and abandoned property registry in the

form of an electronic database. The department of financial services

may, in accordance with the applicable provisions of the state finance

law, retain a private contractor to administer such database for the

purposes of satisfying this requirement. The information provided to the

department of financial services pursuant to this section shall be

deemed and treated confidential, provided however, the superintendent of

financial services, in her or his sole discretion, may release the

information if it is in the best interest of the public. Any such

released information shall continue to be treated confidentially by the

parties. The department of financial services shall, upon written

request, provide public officials of any state district, county, city,

town or village with access to information specific to such public

official's district, county, city, town or village maintained on such

database to further the purposes of this section, section thirteen

hundred seven of this article or article nineteen-A of this chapter, or

any other related law, code, rule, regulation or ordinance.

2. A lender, assignee or mortgage loan servicer shall submit or cause

to be submitted to the department of financial services information

required by the superintendent of financial services about any vacant

and abandoned residential real property, as that term is defined in

subdivision two of section thirteen hundred nine of this article, or as

the superintendent of financial services may otherwise define that term,

within twenty-one business days of when the lender, assignee or mortgage

loan servicer learns, or should have learned, that such property is

vacant and abandoned. Such information shall, at a minimum, include: (a)

the current name, address and contact information for the lender,

assignee or mortgage loan servicer responsible for maintaining the

vacant property; (b) whether a foreclosure action has been filed for the

property in question, and, if so, the date on which the foreclosure

action was commenced; and (c) the last known address and contact

information for the mortgagor(s) of record.

3. Where any of the information contained in a lender's, assignee's or

mortgage loan servicer's initial submission to the registry has

materially changed since such submission, such lender, assignee or

mortgage loan servicer shall make an amended submission to the registry

not later than thirty days after the lender, assignee or mortgage loan

servicer learns, or reasonably should have learned, of the new or

changed information.

4. The department of financial services is authorized and empowered to

adopt such rules and regulations as may in the judgment of the

superintendent of financial services necessary for the effective

administration and operation of such registry, including but not limited

to rules and regulations governing access to the registry and specifying

the manner and frequency of registration and the information that must

be provided. The superintendent of financial services may amend such

regulations from time to time as necessary to effectuate the purpose of

this section and section thirteen hundred seven of this article.

5. The department of financial services shall establish and maintain a

toll-free hotline that neighbors of real property that is, or appears to

be, vacant and abandoned residential real property, as such term is

defined in subdivision two of section thirteen hundred nine of this

article, and other community residents can use to report to the

superintendent of financial services any hazards, blight or other

concerns related to such property. The department of financial services

shall include on its official public website information about such

toll-free hotline.

No local law, ordinance, or resolution shall impose a duty to register

vacant and abandoned property as defined in section thirteen hundred

nine of the article in a manner inconsistent with the provisions of this

section that are related to registration as provided under section

thirteen hundred ten of this article or establish related penalties or

other monetary obligation, with respect to a state or federally

chartered bank, savings bank, savings and loan association or credit

union that originates, owns, services or maintains a mortgage related to

such property.

No local law, ordinance, or resolution shall impose a duty to maintain

vacant and abandoned property upon any state or federally chartered

bank, savings bank, savings and loan association or credit union that

originates, owns, services or maintains a mortgage related to such

property for which the provisions of this section, pursuant to the

opening paragraph of section thirteen hundred eight of this article, do

not apply.

Necessary defendants. Each of the following persons, whose

interest is claimed to be subject and subordinate to the plaintiff's

lien, shall be made a party defendant to the action:

1. Every person having an estate or interest in possession, or

otherwise, in the property as tenant in fee, for life, by the curtesy,

or for years, and every person entitled to the reversion, remainder, or

inheritance of the real property, or of any interest therein or

undivided share thereof, after the determination of a particular estate

therein.

2. Every person having a right of dower or an inchoate right of dower

in the real property or any part or share thereof.

3. Every person having any lien or incumbrance upon the real property

which is claimed to be subject and subordinate to the lien of the

plaintiff.

4. Where the mortgage is upon any of the public utilities regulated by

the public service law, the public service commission.

Representative defendants. 1. Where a trust has been created

by will or by deed or by declaration of trust, the trustees of such

trust who shall have duly qualified shall be made parties defendant and

shall represent all persons who are or may become entitled to a

beneficial interest in the property or an undivided share thereof or in

the proceeds of sale thereof under and by virtue of said trust and all

remaindermen who are or may become entitled to the reversion, remainder

or inheritance of the property or the proceeds of sale thereof either

before or after the termination of said trust, without naming such

beneficiaries or remaindermen as parties defendant. Service of the

summons and complaint upon any one of such duly qualified trustees shall

be sufficient service upon the trust estate and upon all persons who are

or may become entitled to a beneficial interest in the property or an

undivided share thereof or in the proceeds of sale thereof and all

remaindermen who are or may become entitled to the reversion, remainder

or inheritance of the property or the proceeds of sale thereof either

before or after the termination of said trust.

2. Whenever the duly qualified executors under a will are made parties

defendant they shall represent all of the legatees named in the will and

the successors and assigns of such legatees, irrespective of whether or

not such legacies are a charge upon the real property, and such

legatees, their successors and assigns need not be named as parties

defendant. Service of the summons and complaint upon any one of such

duly qualified executors shall be sufficient service upon the executors

under said will and upon all legatees named in said will, their

successors and assigns, irrespective of whether or not such legacies are

a charge upon the real property.

Permissible defendants. Any person who is liable to the

plaintiff for payment of the debt secured by the mortgage may be made a

defendant in the action. The state may be made a party defendant to an

action for the foreclosure of a mortgage on real property, where it has

an interest in or a lien on the property subsequent to the lien of the

mortgage sought to be foreclosed in said action, in the same manner as a

private person.

Action by owner of junior participating interest. An action

may be maintained by the owner of a junior participating share or

interest in a bond or note secured by a mortgage on real, or on real and

personal property, for the payment of principal and interest and for

foreclosure of such bond or note and mortgage in its entirety, or in the

alternative, subject to the interest of the owner of the senior share,

notwithstanding that the entire mortgage debt may be due and payable

according to its terms, in the event that the owner of the senior share,

to whom is given the right in the participating agreement to enforce

such bond or note and mortgage shall fail or refuse to commence an

action for the enforcement of such bond or note and mortgage in any

manner permitted thereby, after ten days' written notice and demand to

commence any such action, following default in the performance of any of

the terms and covenants of such bond or note and mortgage. Upon such

failure or refusal, such junior participant may exercise any and all

options and remedies provided in such bond or note and mortgage or

otherwise available to any holder thereof.

Special summons requirement in private residence cases. In an

action to foreclose a mortgage on a residential property containing not

more than three units, in addition to the usual requirements applicable

to a summons in the court, the summons shall contain a notice in

boldface in the following form:

NOTICE

YOU ARE IN DANGER OF LOSING YOUR HOME

If you do not respond to this summons and complaint by serving a copy

of the answer on the attorney for the mortgage company who filed this

foreclosure proceeding against you and filing the answer with the court,

a default judgment may be entered and you can lose your home.

Speak to an attorney or go to the court where your case is pending for

further information on how to answer the summons and protect your

property.

Sending a payment to your mortgage company will not stop this

foreclosure action.

YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR

THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT.

Default or admission. 1. If the defendant fails to answer

within the time allowed or the right of the plaintiff is admitted by the

answer, upon motion of the plaintiff, the court shall ascertain and

determine the amount due, or direct a referee to compute the amount due

to the plaintiff and to such of the defendants as are prior

incumbrancers of the mortgaged premises, and to examine and report

whether the mortgaged premises can be sold in parcels and, if the whole

amount secured by the mortgage has not become due, to report the amount

thereafter to become due. Where the defendant is an infant, and has put

in a general answer by his guardian, or if any of the defendants be

absentees, the order of reference also shall direct the referee to take

proof of the facts and circumstances stated in the complaint and to

examine the plaintiff or his agent, on oath, as to any payments which

have been made. The order of reference shall also include the name and

telephone number of the mortgage servicer for a plaintiff involving a

mortgage foreclosure of a one- to four-family residential property.

2. When he moves for judgment, the plaintiff shall show whether any of

the defendants who have not appeared are absentees.

Receiver. 1. Where the action is for the foreclosure of a

mortgage providing that a receiver may be appointed without notice,

notice of a motion for such appointment shall not be required.

2. Where a receiver has been appointed, upon the application of the

plaintiff or of any holder of a certificate evidencing an undivided

interest in the mortgage or mortgage debt and upon proof that no answer

has been interposed affecting the validity of the mortgage or the amount

due thereon, or asserting any prior lien, or asserting a plea of tender

of payment of the amount due, or which if sustained would affect in any

way the right of the plaintiff to a judgment in foreclosure and to the

payment of the amount claimed by the plaintiff in his complaint to be

due, the court may direct that the receiver of the rents appointed in

such action apply, during the pendency of the action, the rents received

by him towards the payment of accrued interest on the mortgage, provided

due provision shall have been made for the payment of taxes,

administration expenses, fees and charges and such reserve as the court

may direct. Any monies so paid over by the receiver shall be deducted

from the amount of the judgment in said action.

2-a. Where a receiver has been appointed, the order of appointment

shall direct the owner or lessee of the mortgaged premises to turn over

to the receiver all security deposits received by such owner or lessee

and shall further direct the receiver to hold the security subject to

such disposition thereof as shall be provided in a further order of the

court to be made and entered in the foreclosure action, in accordance

with the provisions of section 7-105 of the general obligations law.

3. In a city with a population of one million or more persons an order

appointing a receiver to receive the rents and profits of a multiple

dwelling shall provide that the receiver:

(a) register with any municipal department as provided by applicable

law; and

(b) expend rents and income and profits as described in subdivision

two of this section, except that a priority shall be given to the

correction of immediately hazardous and hazardous violations of housing

maintenance laws within the time set by orders of any municipal

department, or, if not practicable, seek a postponement of the time for

compliance.

Notice of pendency. The plaintiff, at least twenty days

before a final judgment directing a sale is rendered, shall file in the

clerk's office of each county where the mortgaged property is situated a

notice of the pendency of the action, which shall specify, in addition

to other particulars required by law, the date of the mortgage, the

parties thereto and the time and place of recording.

Payment into court of amount due. Where an action is brought

to foreclose a mortgage upon real property upon which any part of the

principal or interest is due, and another portion of either is to become

due, and the defendant pays into court the amount due for principal and

interest and the costs of the action, together with the expenses of the

proceedings to sell, if any, the court shall:

1. Dismiss the complaint without costs against plaintiff, if the

payment is made before judgment directing sale; or

2. Stay all proceedings upon judgment, if the payment is made after

judgment directing sale and before sale; but, upon a subsequent default

in the payment of principal or interest, the court may make an order

directing the enforcement of the judgment for the purpose of collecting

the sum then due.

Judgment of sale. 1. The judgment shall direct that the

mortgaged premises, or so much thereof as may be sufficient to discharge

the mortgage debt, the expenses of the sale and the costs of the action,

and which may be sold separately without material injury to the parties

interested, be sold by or under the direction of the sheriff of the

county, or a referee within ninety days of the date of the judgment. The

judgment shall also include the name and telephone number of the

mortgage servicer for a plaintiff involving a mortgage foreclosure of a

one- to four-family residential property.

2. Where the mortgage debt is not all due, and the mortgaged property

is so circumstanced that it can be sold in parcels without injury to the

interests of the parties, the final judgment shall direct that no more

of the property be sold in the first place than is sufficient to satisfy

the sum then due, with the costs of the action and expenses of the sale.

Upon a subsequent default in the payment of principal or interest the

plaintiff may apply for an order directing the sale of the residue, or

of so much thereof as is necessary to satisfy the amount then due, with

the costs of the application and the expenses of the sale. The plaintiff

may apply for and obtain such an order as often as a default happens. If

it appears that the mortgaged property is so circumstanced that a sale

of the whole will be most beneficial to the parties, the final judgment

may direct that the whole property be sold discharged from the entire

mortgage debt and that the proceeds of the sale, after deducting the

costs of the action and the expenses of the sale, be either applied to

the satisfaction of the whole sum secured by the mortgage, with such a

rebate of interest as justice requires; or be first applied to the

payment of the sum due, and the balance, or so much thereof as is

necessary, be invested at interest for the benefit of the plaintiff, to

be paid to him from time to time as any part of the principal or

interest becomes due, or may, at the option of the mortgagee, direct

that the whole property be sold to satisfy the debt then due with the

costs of the action and expenses of the sale, subject to the continuing

lien of the mortgage for the amount of the debt not then due and unpaid

according to its terms. The provisions of this section shall not limit

or affect the plaintiff's right to judgment and sale in an action

specified in section 1315.

3. If it appears to the satisfaction of the court that there exists no

more than one other mortgage on the premisis which is then due and which

is subordinate only to the plaintiff's mortgage but is entitled to

priority over all other liens and encumbrances except those described in

subdivision 2 of section 1354, upon motion of the holder of such

mortgage made without valid objection of any other party, the final

judgement may direct payment of the subordinate mortgage debt from the

proceeds in accordance with subdivision 3 of section 1354.

Judgment foreclosing right of redemption. Where real property

has been sold pursuant to a judgment in an action to foreclose a

mortgage, and an action is thereafter brought to foreclose or extinguish

a right of redemption in such real property, the judgment, instead of

directing a sale of the property, shall fix the right of any person

having a right of redemption therein or the right to foreclose a

subordinate mortgage or other lien and shall provide that a failure to

redeem or commence an action for the foreclosure of such mortgage or

other lien within such time shall preclude such person having a right of

redemption or the holder of such mortgage or other lien from redeeming

such property or foreclosing such mortgage or other lien, and thereafter

such person having a right of redemption or the holder of such mortgage

or other lien shall be excluded from claiming any title or interest in

such property and all title or interests of such person having a right

of redemption in, or the right to foreclose a subordinate mortgage or

other lien against such property shall thereby be extinguished and

terminated.

Conveyance. 1. After the property has been sold, the officer

conducting the sale shall execute a deed to the purchaser. The

plaintiff, or any other party, may become a purchaser. If the plaintiff

(or its affiliate, as defined in paragraph (a) of subdivision one of

section six-l of the banking law) is the purchaser, such party shall

place the property back on the market for sale or other occupancy: (a)

within one hundred eighty days of the execution of the deed of sale, or

(b) within ninety days of completion of construction, renovation, or

rehabilitation of the property, provided that such construction,

renovation, or rehabilitation proceeded diligently to completion,

whichever comes first, provided however, a court of competent

jurisdiction may grant an extension for good cause.

2. Before a deed is executed to the purchaser, the plaintiff shall

file the mortgage and any assignment not shown to have been lost or

destroyed in the office of the clerk, unless it is in a form which can

be recorded; in which case it shall be recorded in the counties where

the lands are situated; the expense of filing or recording and entry

shall be allowed in the taxation of costs; and, if filed with the clerk,

he shall enter in the minutes the time of filing.

3. The conveyance vests in the purchaser the same estate only that

would have vested in the mortgagee if the equity of redemption had been

foreclosed. Such a conveyance is as valid as if it were executed by the

mortgagor and mortgagee, and, except as provided in section 1315 and

subdivision 2 of section 1341, is an entire bar against each of them and

against each party to the action who was duly summoned and every person

claiming from, through or under a party by title accruing after the

filing of the notice of the pendency of the action.

Distribution of proceeds of sale. 1. The officer conducting

the sale shall pay, out of the proceeds, unless otherwise directed, the

expenses of the sale, and pay to the plaintiff, or his attorney, the

amount of the debt, interest and costs, or so much as the proceeds will

pay and take the receipt of the plaintiff, or his attorney, for the

amount so paid, and file the same with his report of sale.

2. The officer conducting the sale shall pay out of the proceeds all

taxes, assessments, and water rates which are liens upon the property

sold, and redeem the property sold from any sales for unpaid taxes,

assessments or water rates which have not apparently become absolute. In

any city having a population of three hundred thousand or more or any

city having a population between one hundred twenty-five thousand and

one hundred seventy-five thousand, such officer shall pay out of the

proceeds any liens or incumbrances placed by a city agency upon the real

property which have priority over the foreclosed mortgage. The sums

necessary to make those payments and redemptions are deemed expenses of

the sale. The provisions of this subdivision shall not apply to any

judgment in an action wherein any municipal corporation of this state is

the plaintiff and the purchaser at the foreclosure sale thereunder.

3. The officer conducting the sale after fully complying with the

provisions of subdivisions one and two of this section and if the

judgment of sale has so directed shall pay to the holder of any

subordinate mortgage or his attorney from the then remaining proceeds

the amount then due on such subordinate mortgage, or so much as the then

remaining proceeds will pay and take the receipt of the holder, or his

attorney for the amount so paid, and file the same with his report of

sale.

4. All surplus moneys arising from the sale shall be paid into court

by the officer conducting the sale within five days after the same shall

be received.

Report of sale; confirmation. 1. Within thirty days after

completing the sale and executing the proper conveyance to the

purchaser, unless such time be extended by the court within said thirty

days, the officer making the sale shall file with the clerk his report

under oath of the disposition of the proceeds of the sale, accompanied

by the vouchers of the persons to whom payments were made.

2. A motion to confirm such report of sale shall not be made within

three months after the filing of the report and shall in any event be

made not later than four months after the filing of such report, except

that if there be no surplus moneys arising from the sale of the

mortgaged premises under such judgment, an application for confirmation

of the report of sale may be made at any time after the report shall

have been filed eight days. Where the report of sale shows surplus money

the party moving for confirmation of the report of sale shall present

with his motion papers a proper voucher for the surplus moneys showing

that they have been paid into court, a certificate of the clerk

specifying the notices of claim to the surplus moneys, if any, so filed

with him, and an affidavit showing any other unsatisfied lien on the

property.

Application for surplus; reference. 1. Any person claiming the

surplus moneys arising upon the sale of mortgaged premises, or any part

thereof, either in his own name, or by his attorney, at any time before

the confirmation of the report of sale, may file with the clerk in whose

office the report of sale is filed, a written notice of such claim,

stating the nature and extent of his claim and the address of himself or

his attorney.

2. On the motion for confirmation, or at any time within three months

thereafter, on notice to all parties who have appeared in the action or

filed claims, on motion of any party to the action, or any person who

has filed a notice of claim on the surplus moneys, the court, by

reference or otherwise, shall ascertain and report the amount due to him

or any other person who has a lien on such surplus moneys, and the

priority of the several liens thereon and order distribution of surplus

moneys.

3. The owner of the equity of redemption, or any party who has

appeared in the action or any person who files a notice of claim or who

has a recorded lien against the property shall be given notice by mail

or in such other manner as the court shall direct, to attend any hearing

on disposition of surplus money.

Payment of surplus out of court. 1. Upon confirmation of the

report of sale, or upon such proceedings as are provided in section

1361, the court shall order the payment of the surplus proceeds of sale

out of court to such persons as are entitled thereto.

2. If the property sold has included a right to dower, whether

inchoate or consummate, a tendency by curtesy, or any other estate for

life or years, the owner of such particular estate in the real property

sold is entitled to receive from the surplus, in satisfaction of his

estate or interest, either a sum in gross or the earnings of a sum

invested for his benefit. The determination as to whether a sum in gross

or the earnings of a sum invested shall be awarded to the owner of such

particular estate shall be governed by the provisions of section 968

with respect to the proceeds of a sale in partition.

3. If real property or an interest in real property which is liable to

be disposed of as prescribed in article thirteen of the surrogate's

court act, be sold to satisfy a mortgage or other lien thereon, which

mortgage or lien accrued during the decedent's lifetime, the surplus

money shall be paid in to the surrogate's court having jurisdiction to

issue letters testamentary or of administration upon the estate of the

decedent, in the following cases: (a) If eighteen months have not

elapsed since the date when letters testamentary or of administration

were first issued. (b) If a proceeding for a judicial settlement of the

accounts of such executor or administrator has been commenced within

eighteen months from the date of the issue of such letters and is still

pending. (c) If no such letters have been issued and two years have not

elapsed since the death of the decedent.

Deficiency judgment. 1. If a person who is liable to the

plaintiff for the payment of the debt secured by the mortgage is made a

defendant in the action, and has appeared or has been personally served

with the summons, the final judgment may award payment by him of the

whole residue, or so much thereof as the court may determine to be just

and equitable, of the debt remaining unsatisfied, after a sale of the

mortgaged property and the application of the proceeds, pursuant to the

directions contained in such judgment, the amount thereof to be

determined by the court as herein provided.

2. Simultaneously with the making of a motion for an order confirming

the sale, provided such motion is made within ninety days after the date

of the consummation of the sale by the delivery of the proper deed of

conveyance to the purchaser, the party to whom such residue shall be

owing may make a motion in the action for leave to enter a deficiency

judgment upon notice to the party against whom such judgment is sought

or the attorney who shall have appeared for such party in such action.

Such notice shall be served personally or in such other manner as the

court may direct. Upon such motion the court, whether or not the

respondent appears, shall determine, upon affidavit or otherwise as it

shall direct, the fair and reasonable market value of the mortgaged

premises as of the date such premises were bid in at auction or such

nearest earlier date as there shall have been any market value thereof

and shall make an order directing the entry of a deficiency judgment.

Such deficiency judgment shall be for an amount equal to the sum of the

amount owing by the party liable as determined by the judgment with

interest, plus the amount owing on all prior liens and encumbrances with

interest, plus costs and disbursements of the action including the

referee's fee and disbursements, less the market value as determined by

the court or the sale price of the property whichever shall be the

higher.

3. If no motion for a deficiency judgment shall be made as herein

prescribed the proceeds of the sale regardless of amount shall be deemed

to be in full satisfaction of the mortgage debt and no right to recover

any deficiency in any action or proceeding shall exist.

4. Notwithstanding the foregoing provisions and irrespective of

whether a motion for a deficiency judgment shall have been made or, if

made, shall have been denied, the court shall direct that all moneys

remaining in the hands of a receiver of the rents and profits appointed

in the action, after the payment of the receiver's fees and the expenses

of the receivership, or any moneys remaining in the hands of a mortgagee

in possession or an assignee of the rents and profits of the premises,

shall be paid to the plaintiff to the extent of the amount, if any, by

which the judgment of foreclosure and sale exceeds the amount paid for

the property upon the sale.

Proceeding for share of unknown heirs. Sections 991 and 992

shall apply to an action to foreclose a mortgage on real property.

Foreclosure actions involving abandoned properties. If a

property has been certified abandoned pursuant to section nineteen

hundred seventy-one of this chapter, or deemed vacant and abandoned

pursuant to section thirteen hundred nine of this article, the city,

village, or town in which the property is located may commence a

proceeding in a court of competent jurisdiction in the county in which

the property is located to compel any or all mortgagees to: (a) if the

note is in default, the mortgagee shall commence a foreclosure procedure

within three months and shall meet all deadlines to ensure the case is

ready to be moved to judgment within a reasonable time period but not to

exceed one year; (b) if a foreclosure has already been commenced, file

the necessary motions and within three months paperwork to move the case

to judgment foreclosure within three months; or (c) issue a certificate

of discharge of the mortgage within three months and file a satisfaction

of the mortgage with the appropriate local office.

Mortgages in default. 1. No local law, ordinance or resolution

shall allow for the registration of residential mortgages in default

prior to a mortgagee filing a notice of pendency in a court of competent

jurisdiction.

2. No such local law, ordinance or resolution shall require a

homeowner or occupant to register.

3. Any local law, ordinance or resolution that allows for the

registration of residential mortgages in default may impose a

registration fee not exceeding seventy-five dollars annually. A

mortgagee and/or its agents are prohibited from passing along such fees

to the mortgagor in default.

4. For the purposes of this section, a mortgage default occurs when a

mortgagor fails to fulfill its obligations under a mortgage agreement.

5. "Registration" shall mean the collection, publication or posting,

public or otherwise, of residential mortgages in default by a local

governing body or an agency thereof, or any third-party entity that

contracts with such local governing body.

6. "Notice of pendency" shall have the same meaning as defined in

section sixty-five hundred one of the civil practice law and rules.

7. A local governing body, through a local law, ordinance or

resolution, may impose a fine on a mortgagee for noncompliance with this

section or any local law, ordinance or resolution that allows for the

registration of residential mortgages in default. A mortgagee and/or its

agents are prohibited from passing along such fines to the mortgagor in

default.

8. The provisions of this section shall supersede any local law,

ordinance, or resolution requiring the registration of mortgages in

default that was enacted prior to the effective date of this section.

Who may maintain an action. 1. Where a person claims an estate

or interest in real property; or where he claims such estate or interest

as executor or administrator of a deceased person; or where a municipal

corporation has purchased an estate or interest in real property at a

sale conducted by it for unpaid taxes against the property and the time

within which redemption from such sale may be made has expired and such

municipal corporation claims it; such person or municipal corporation,

as the case may be, may maintain an action against any other person,

known or unknown, including one under disability as hereinafter

specified, to compel the determination of any claim adverse to that of

the plaintiff which the defendant makes, or which it appears from the

public records, or from the allegations of the complaint, the defendant

might make; provided, however, that where the estate or interest claimed

by the plaintiff is for a term of years, the action may not be

maintained unless the balance remaining of such term of years is not

less than five.

2. Such action may be maintained, even though the defendant's claim

appears to be invalid on its face, or the court may have to determine

the death of a person, or any statutory limitation of time, or any other

question of fact or law upon which an adjudication of the adverse claims

of the parties may depend.

3. An action against a woman who claims a right of dower in the whole

or a part of the property cannot be commenced until the expiration of

four months after the death of defendant's husband.

4. Where the period allowed by the applicable statute of limitation

for the commencement of an action to foreclose a mortgage, or to enforce

a vendor's lien, has expired, any person having an estate or interest in

the real property subject to such encumbrance may maintain an action

against any other person or persons, known or unknown, including one

under disability as hereinafter specified, to secure the cancellation

and discharge of record of such encumbrance, and to adjudge the estate

or interest of the plaintiff in such real property to be free therefrom;

provided, however, that no such action shall be maintainable in any case

where the mortgagee, holder of the vendor's lien, or the successor of

either of them shall be in possession of the affected real property at

the time of the commencement of the action. In any action brought under

this section it shall be immaterial whether the debt upon which the

mortgage or lien was based has, or has not, been paid; and also whether

the mortgage in question was, or was not, given to secure a part of the

purchase price.

5. The interest had by any mortgagee or contract vendee of real

property or by any successor in interest of either of them, is an

"interest in real property" as that phrase is used in this article of

the real property actions and proceedings law.

6. Where a person, as defined in subdivision seven of section 10.00 of

the penal law, has been convicted of a criminal offense in connection

with a deed theft or fraudulent transaction involving real property, the

conviction creates a rebuttable presumption that such deed transfer was

fraudulent. This section also applies where a grantee of a fraudulent

deed is an entity that is beneficially owned by such convicted person. A

defendant may in such action produce proof to establish by a

preponderance of the evidence that such deed was not procured through

fraud.

Action to determine claims where foreclosure of mortgage was

void or voidable. When real property has been sold pursuant to a

judgment in an action to foreclose a mortgage under article 13 of this

chapter or pursuant to article 14 of this chapter, or has been conveyed

to the mortgagee or the designee of such mortgagee by deed in lieu of

foreclosure, and it appears from the public records or from the

allegations of the complaint that such judgment, sale or conveyance was

or may have been, for any reason, void or voidable as against any

person, including an owner of the real property mortgaged, the purchaser

or such mortgagee or designee, or the successor of any such person, in

possession of such real property, may maintain an action as provided in

this article to determine the right of any person to set aside such

judgment, sale or conveyance or to enforce an equity of redemption or to

recover possession of the property, or the right of any junior mortgagee

to foreclose a mortgage. Such action may be maintained even though an

action against the defendant to foreclose the mortgage under which the

judgment, sale or conveyance was made, or to extinguish a right of

redemption, would be barred by the statutes of limitation.

Additional parties. 1. In an action brought under this

article, the person in possession shall be made a party to the action,

and when such person claims the right of possession, or an interest in