NY Real Prop Actions L § 1309 (2021)
2021 New York Laws RPA - Real Property Actions and Proceedings Article 13 - Action to Foreclose a Mortgage 1309 - Expedited Application for Judgment of Foreclosure and Sale for Vacant and Abandoned Property.

§ 1309. 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.