Real Property Actions & Proceedings

ARTICLE 7

SUMMARY PROCEEDING TO RECOVER POSSESSION OF REAL PROPERTY
Section 701. Jurisdiction; courts; venue.
711. Grounds where landlord-tenant relationship exists.
713. Grounds where no landlord-tenant relationship exists.
713-a. Special proceeding for termination of adult home and
residence for adults admission agreements.
715. Grounds and procedure where use or occupancy is illegal.
721. Person who may maintain proceeding.
731. Commencement; notice of petition.
732. Special provisions applicable in non-payment proceeding
if the rules so provide.
733. Time of service; order to show cause.
734. Notice of petition; service on the Westchester county
department of social servics.
735. Manner of service; filing; when service complete.
741. Contents of petition.
743. Answer.
745. Trial.
747. Judgment.
747-a. Judgments; stays.
749. Warrant.
751. Stay upon paying rent or giving undertaking;
discretionary stay outside city of New York.
753. Stay where tenant holds over in premises occupied for
dwelling purposes in city of New York.
755. Stay of proceeding or action for rent upon failure to
make repairs.
756. Stay of summary proceedings or actions for rent under
certain conditions.
761. Redemption by lessee.
763. Redemption by creditor of lessee.
765. Effect of redemption upon lease.
767. Order of redemption; liability of persons redeeming.

S 701. 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.

S 711. 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;
he shall not 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 demand of the rent
has been made, or at least three days` notice in writing requiring, in
the alternative, the payment of the rent, or the possession of the
premises, has been served upon him as prescribed in section 735. The
landlord may waive his right to proceed upon this ground only by an
express consent in writing to permit the tenant to continue in
possession, which consent shall be revocable at will, in which event the
landlord shall be deemed to have waived his right to summary dispossess
for nonpayment of rent accruing during the time said consent remains
unrevoked. 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 no representative
or person has taken possession of the premises and no administrator or
executor has been appointed, the proceeding may be commenced after three
months from the date of death of the tenant by joining the surviving
spouse or if there is none, then one of the surviving issue or if there
is none, then any one of the distributees.
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.

S 713. 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. 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.

S 713-a. 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.

S 715. 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, 230.20, 230.25, 230.30 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.

S 721. 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.

S 731. 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.

S 732. 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 five 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.
3. If the respondent fails to answer within five 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.
4. The notice of petition shall advise the respondent of the
requirements of subdivisions 1, 2 and 3, above.

S 733. Time of service; order to show cause. 1. Except as provided in
section 732, relating to a proceeding for non-payment of rent, the
notice of petition and petition shall be served at least five and not
more than twelve 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.

S 734. 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.

S 735. 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.

S 741. 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.

S 743. Answer. Except as provided in section 732, 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. 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 made at least three
days before the time the petition is noticed to be heard and, if in
writing, it shall be served within such time; whereupon any reply shall
be served at least one day before such time. 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.

S 745. Trial. 1. Where triable issues of fact are raised, they shall
be tried by the court unless, at the time the petition is noticed to be
heard, a party demands a trial by jury, in which case trial shall be by
jury. At the time when issue is joined the court, in its discretion at
the request of either party and upon proof to its satisfaction by
affidavit or orally that an adjournment is necessary to enable the
applicant to procure his necessary witnesses, or by consent of all the
parties who appear, may adjourn the trial of the issue, but not more
than ten days, except by consent of all parties.
2. In the city of New York:
(a) In a summary proceeding upon the second of two adjournments at the
request of the respondent, or, upon the thirtieth day after the first
appearance of the parties in court less any days that the proceeding has
been adjourned upon the request of the petitioner, whichever occurs
sooner, the court shall direct that the respondent, upon an application
by the petitioner, deposit with the court within five days sums of rent
or use and occupancy accrued from the date the petition and notice of
petition are served upon the respondent, and all sums as they become due
for rent and use and occupancy, which may be established without the use
of expert testimony, unless the respondent can establish, at an
immediate hearing, to the satisfaction of the court that respondent has
properly interposed one of the following defenses or established the
following grounds:
(i) the petitioner is not a proper party to the proceeding pursuant to
section seven hundred twenty-one of this article; or
(ii) (A) actual eviction, or (B) actual partial eviction, or (C)
constructive eviction; and respondent has quit the premises; or
(iii) a defense pursuant to section one hundred forty-three-b of the
social services law; or
(iv) the court lacks jurisdiction.
When the rental unit that is the subject of the petition is located in
a building containing twelve or fewer units, the court shall inquire of
the respondent as to whether there is any undisputed amount of the rent
or use and occupancy due to the petitioner. Any such undisputed amount
shall be paid directly to the petitioner, and any disputed amount shall
be deposited to the court by the respondent as provided in this
subdivision.
Two adjournments shall include an adjournment requested by a
respondent unrepresented by counsel for the purpose of securing counsel
made on a return date of the proceeding. Such rent or use and occupancy
sums shall be deposited with the clerk of the court or paid to such
other person or entity, including the petitioner or an agent designated
by the division of housing and community renewal, as the court shall
direct or shall be expended for such emergency repairs as the court
shall approve.
(b) (i) The court shall not require the respondent to deposit the
portion of rent or use and occupancy, if any, which is payable by direct
government housing subsidy, any currently effective senior citizen
increase exemption authorized pursuant to sections four hundred
sixty-seven-b and four hundred sixty-seven-c of the real property tax
law, direct payment of rent or a two-party check issued by a social
services district or the department of social services, or rental
assistance that is payable pursuant to court orders issued in litigation
commenced in nineteen hundred eighty-seven in a proceeding in which the
amount of shelter allowance is at issue on behalf of recipients of aid
to dependent children. In the event the respondent or other adult member
of the respondent`s household receives public assistance pursuant to
title three or title ten of article five of the social services law, the
respondent shall, when directed by the court to deposit rent and use or
occupancy, only be required to deposit with the court the amount of the
shelter allowance portion of the public assistance grant issued by the
department of social services or a social services district. In the
event the respondent receives supplemental security income pursuant to
title sixteen of the federal social security act and title six of
article five of the social services law, the respondent shall only be
required to deposit one-third of the monthly supplemental security
income payment.
(ii) Any sum required to be deposited with the court pursuant to this
subdivision shall be offset by payment, if any, made by the respondent
pursuant to section two hundred thirty-five-a of the real property law
or section three hundred two-c of the multiple dwelling law.
(c) (i) If the respondent shall fail to comply with the court`s
directions with respect to direct payment to the petitioner or making a
deposit as directed by the court of the full amount of the rent or use
and occupancy required to be deposited, the court upon an application by
the petitioner shall dismiss without prejudice the defenses and
counterclaims interposed by the respondent and grant judgment for
petitioner unless respondent has interposed the defense of payment and
shows that the amount required to be deposited has previously been paid
to the petitioner.
(ii) In the event that the respondent makes a deposit required by this
subdivision but fails to deposit with the court or pay, as the case may
be, upon the due date, all rent or use and occupancy which may become
due up to the time of the entry of judgment, the court upon an
application of the petitioner shall order an immediate trial of the
issues raised in the respondent`s answer. An "immediate trial" shall
mean that no further adjournments of the proceeding without petitioner
consent shall be granted, the case shall be assigned by the
administrative judge to a trial ready part and such trial shall commence
and continue day to day until completed. There shall be no stay granted
of such trial without an order to respondent to pay rent or use and
occupancy due pursuant to this subdivision and rent or use and occupancy
as it becomes due.
(iii) The court shall not extend any time provided for such deposit
under this subdivision without the consent of the petitioner.
(iv) Upon the entry of the final judgment in the proceeding such
deposits shall be credited against any judgment amount awarded and,
without further order of the court, be paid in accordance with the
judgment.
(v) The provisions of this paragraph requiring the deposit of rent or
use and occupancy as it becomes due shall not be waived by the court.
(d) The court may dismiss any summary proceeding without prejudice and
with costs to the respondent by reason of excessive adjournments
requested by the petitioner.
(e) The provisions of this subdivision shall not be construed as to
deprive a respondent of a trial of any defenses or counterclaims in a
separate action if such defenses or counterclaims are dismissed without
prejudice.

S 747. 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.

S 747-a. Judgments; stays. In the city of New York, in any non-payment
summary proceeding in which the respondent has appeared and the
petitioner has obtained a judgment pursuant to section seven hundred
forty-seven of this article and more than five days has elapsed, the
court shall not grant a stay of the issuance or execution of any warrant
of eviction nor stay the re-letting of the premises unless the
respondent shall have either established to the satisfaction of the
court by a sworn statement and documentary proof that the judgment
amount was paid to the petitioner prior to the execution of the warrant
or the respondent has deposited the full amount of such judgment with
the clerk of the court.

S 749. 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, and
commanding the officer to remove all persons, and, except where the case
is within section 715, to put the petitioner into full possession.
2. The officer to whom the warrant is directed and delivered shall
give at least seventy-two hours 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 between the hours of sunrise and sunset.
3. The issuing of a warrant for the removal of a tenant cancels the
agreement under which the person removed held the premises, and annuls
the relation of landlord and tenant, but nothing contained herein shall
deprive the court of the power to vacate such warrant for good cause
shown prior to the execution thereof. 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.

S 751. 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.
* 4. (a) In a proceeding to recover the possession of premises outside
the city of New York occupied for dwelling purposes, other than a room
or rooms in an hotel, lodging house or rooming house, upon the ground
that the occupant is holding over and continuing in possession of the
premises after the expiration of his term and 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, 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 four months, if it appears that the premises described
in the petition 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 him and that he
made due and reasonable efforts to secure such other premises, or that
by reason of other facts it would occasion extreme hardship to him or
his family if the stay were not granted. (b) 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 he was liable as rent for the month immediately
prior to the expiration of his 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 shall also include all rent unpaid by the
occupant prior to 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 his
duly authorized agent, the amount of such deposit in accordance with the
terms of the stay or the further order of the court.
(c) The provisions of this subdivision shall not apply to a proceeding
where the petitioner shows to the satisfaction of the court that he
desires in good faith to recover the premises for the purposes of
demolishing same with the intention of constructing a new building,
plans for which new building shall have been duly filed and approved by
the proper authority; nor shall it apply to a proceeding to recover
possession upon the ground that an occupant is holding over and is
objectionable if the landlord shall establish to the satisfaction of the
court that such occupant is objectionable.
(d) Any provision of a lease or other agreement whereby a lessee or
tenant waives any provision of this subdivision shall be deemed against
public policy and void.
(e) The provisions of this subdivision shall continue in effect only
until September first, nineteen hundred sixty-seven.
* NB Expired September 1, 1967

S 753. Stay where tenant holds over in premises occupied for dwelling
purposes in city of New York. 1. In a proceeding to recover the
possession of premises in the city of New York occupied for dwelling
purposes, other than a room or rooms in an hotel, lodging house, or
rooming house, upon the ground that the occupant is holding over and
continuing in possession of the premises after the expiration of his
term and 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, 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 six months, 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 him and that he
made due and reasonable efforts to secure such other premises, or that
by reason of other facts it would occasion extreme hardship to him or
his family if the stay were not granted.
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 he was
liable as rent for the month immediately prior to the expiration of his
term or tenency, 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 shall
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 his 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
where the petitioner shows to the satisfaction of the court that he
desires in good faith to recover the premises for the purpose of
demolishing same with the intention of constructing a new building,
plans for which new building shall have been duly filed and approved by
the proper authority; nor shall it apply to a proceeding to recover
possession upon the ground that an occupant is holding over and is
objectionable if the landlord shall establish 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 ten 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.

S 755. 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.

S 756. Stay of summary proceedings or actions for rent under certain
conditions. In the event that utilities are discontinued in any part of
a multiple dwelling because of the failure of the landlord or other
person having control of said multiple 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 multiple dwelling pays the amount owing for said utilities and
until such time as the utilities are restored to working order.

S 761. 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.

S 763. 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.

S 765. 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.

S 767. 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.