NY Soc Serv L § 461-H (2021)
2021 New York Laws SOS - Social Services Article 7 - Residential Care Programs for Adults and Children Title 2 - Residential Programs for Adults 461-H - Special Proceeding for Termination of Adult Home, Residence for Adults and Enriched Housing Program Admission Agreements.

§  461-h.  Special proceeding for termination of adult home, residence for adults and enriched housing program admission agreements. 1.  (a)  A special proceeding to terminate the admission agreement of a resident of an  adult  home,  residence  for  adults or enriched housing program and discharge the resident therefrom may be maintained in the county  court, the  justice  court of the village, the town justice court, the court of civil  jurisdiction  in  a  city,  or  the  district  court  which   has jurisdiction  over  proceedings brought pursuant to article seven of the real property actions and proceedings law.  (b) The place of trial of the special proceeding shall be  within  the jurisdictional  area  of  the court in which the adult home or residence for adults is situated; except that where the facility is located in  an incorporated  village  which  includes  parts  of two or more towns, the proceeding may be tried by a town justice of any such town who keeps  an office in the village.   2.  The  proceeding  may  be brought by the operator of an adult home, residence for adults or enriched housing program.   3. (a) The special proceeding prescribed  by  this  section  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.  (b) The notice of petition shall specify the time  and  place  of  the hearing on the petition.   4.  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.   5. (a) Service of the notice of petition and petition shall be made by personally  delivering  them  to  the  resident; and at the time of such service, a copy of such notice of petition and petition shall be  mailed to  the  resident's  next  of  kin  and  to the person designated in the admission  agreement  as  the  responsible  party,  if  any,   and   the department.  If  service  by personal delivery of the notice of petition and petition upon a resident, who has been removed from the facility  as permitted  by  subdivision  three of section four hundred sixty-one-g of this article, is not possible, then service upon such resident shall  be made  by  any of the methods permitted by section three hundred eight of the civil practice law and rules.  (b) The notice of petition and petition together with proof of service thereof on the resident and proof that copies thereof have  been  mailed to  the  resident's  next  of  kin  and  to the person designated in the admission agreement as the responsible party, if  any,  shall  be  filed with  the court or clerk thereof within three days after delivery to the resident.  (c) Service shall be complete upon filing proof of service.   6. The  petition  shall  be  verified  by  the  person  authorized  by subdivision  two  of  this  section  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.   Every petition shall:  (a) state the interest of the petitioner in the  premises  from  which removal is sought;  (b) state the resident's interest in the premises and his relationship to petitioner with regard thereto;  (c) describe the premises from which removal is sought;  (d) state the facts upon which the special proceeding is based; and  (e)  state  the  relief  sought. The relief may include a judgment for payment of all charges, expenses and other assessments due.    7. The resident may answer in writing prior to the date  the  petition is to be heard or orally at the time the petition is heard. The resident may interpose any defense that he may have in his answer.   8.  If  the  relief  sought  by  the  operator includes a judgment for payment of all charges, expenses and other  assessments  due,  then  any counterclaims  which  the  resident may have against the operator may be heard in a special proceeding maintained pursuant to the  provisions  of this  section,  provided,  however, that the court in its discretion may sever such claims and counterclaims from the special proceeding.   9. Where triable issues of fact are raised, they shall be tried by the court. The court, in its discretion, at the request of one  or  both  of the parties may grant an adjournment for not more than ten days.   10.  (a)  The  court  shall  direct  that  a final judgment be entered determining the rights of the  parties  with  regard  to  the  admission agreement.  (b)  The  judgment,  including  such money as it may award for use and occupancy of the facility 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.   11. (a) Upon rendering a final  judgment  for  petitioner,  the  court shall issue an order of removal directed to the sheriff of the county or to  any  constable  or  marshal  of  the  city  in which the facility 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 the resident.  (b) The officer to whom the order of removal is directed and delivered shall give at least seventy-two hours notice,  in  writing  and  in  the manner  prescribed  in  this  section  for  the  service  of a notice of petition, to the person to  be  removed  and  shall  execute  the  order between the hours of sunrise and sunset.   12.  (a)  If  a proceeding is brought by an operator of an adult home, residence for  adults  or  enriched  housing  program  pursuant  to  the provisions  of  this section and the reason for the proceeding is that a resident of such a facility has not paid  the  authorized  charges,  the court  shall stay the issuance of the order of removal for ten days from the date a judgment is rendered. The court, in its discretion, may  stay the  issuance of an order of removal for up to ninety days if the reason for the termination of the admission  agreement  and  discharge  of  the resident  is  that the resident failed to pay the authorized charges and such nonpayment was due to an interruption by a government agency in the delivery to such resident of any public benefits to which such  resident is  entitled.  During  the  pendency  of  such stay, the operator of the facility, as part of the provision of case management services shall  be required  to  assist the resident who shall cooperate with the operator, in obtaining  any  such  public  benefits  or  any  supplemental  public benefits  which  are  available  to  persons who have not received their regular public benefits.  (b) If a proceeding is brought  by  an  operator  of  an  adult  home, residence  for  adults  or  enriched  housing  program  pursuant  to the provisions of this  section,  and  the  reason  for  the  proceeding  is repeated behavior by the resident which directly impairs the well-being, care  or  safety  of  the  resident  or  any  other  resident  or  which substantially interferes with the orderly operation of the facility, the court, in its discretion, upon application of the resident, may stay the  issuance of the order of removal for up to thirty days from the  date  a judgment is rendered.  (c)  If  a  proceeding  is  brought  by  an operator, administrator or receiver of an adult home, residence  for  adults  or  enriched  housing program  pursuant  to the provisions of this section, and the reason for the proceeding is that the facility has had  its  operating  certificate revoked or temporarily suspended pursuant to subdivision four of section four  hundred  sixty-d  of this article, or the operator has voluntarily surrendered  the  operating  certificate  for  the   facility   to   the department,  the  court,  in  its  final  judgment  entered  pursuant to subdivision ten of this section, shall not direct the facility to remain open and in operation.   13. During the pendency of a special proceeding  brought  pursuant  to this  section,  the  operator  of an adult home, residence for adults or enriched housing program shall be required to honor  all  terms  of  the admission agreement until the resident is removed.   14.  Nothing  contained herein shall be deemed to alter or abridge any right of a resident or operator of an adult home, residence  for  adults or  enriched  housing program to obtain any relief to which such persons are entitled in any other court of competent jurisdiction.   15. Notwithstanding the provisions of this article, nothing  contained herein  shall  be  construed  to  create  a relationship of landlord and tenant between an operator of an adult home,  residence  for  adults  or enriched housing program and a resident thereof.   16.  Notwithstanding  any  other  provision  in  this  section  to the contrary, the admission agreement of a resident in an  enriched  housing program  may  be  terminated and the resident discharged pursuant to the provisions of section four  hundred  sixty-one-g  of  this  article  and pursuant to a special proceeding as set forth in this section; provided, however,  where such resident has an existing lease with the landlord of the premises in which the program is housed, the  resident  may  not  be involuntarily  removed  from  the premises except in accordance with the provisions of such lease and applicable law and regulation.