2023 New York Laws › RPA - Real Property Actions and Proceedings › Article 7 - Summary Proceeding to Recover Possession of Real Property › 745 - Trial.

§  745.  Trial. 1. Where triable issues of fact are raised, they shall
be tried by the court unless, at the time the petition is noticed to  be
heard,  a party demands a trial by jury, in which case trial shall be by
jury. At the time when issue is joined the  court,  at  the  request  of
either  party  shall  adjourn  the  trial  of  the  issue, not less than
fourteen days, except by consent of all parties.  A  party's  second  or
subsequent  request for adjournment shall be granted in the court's sole
discretion.
2. In the city of New York:
(a) In a summary  proceeding  upon  the  second  of  two  adjournments
granted  solely  at the request of the respondent, or, upon the sixtieth
day after the first appearance of the parties in  court  less  any  days
that  the  proceeding  has  been  adjourned  upon  the  request  of  the
petitioner, counting only days attributable to adjournment requests made
solely at the request of the respondent  and  not  counting  an  initial
adjournment  requested  by a respondent unrepresented by counsel for the
purpose of securing counsel, whichever occurs  sooner,  the  court  may,
upon  consideration  of the equities, direct that the respondent, upon a
motion on notice made by the petitioner, deposit with the court sums  of
rent  or  use  and occupancy that shall accrue subsequent to the date of
the court's order, which may be established without the  use  of  expert
testimony.  The  court  shall  not  order  deposit or payment of use and
occupancy where the respondent can establish, to the satisfaction of the
court that respondent has  properly  interposed  one  of  the  following
defenses or established the following grounds:
(i) the petitioner is not a proper party to the proceeding pursuant to
section seven hundred twenty-one of this article; or
(ii)  (A)  actual  eviction,  or  (B)  actual partial eviction, or (C)
constructive eviction; and respondent has quit the premises; or
(iii) a defense pursuant to section one hundred forty-three-b  of  the
social services law; or
(iv)  a  defense  based upon the existence of hazardous or immediately
hazardous violations of the housing  maintenance  code  in  the  subject
apartment or common areas; or
(v) a colorable defense of rent overcharge; or
(vi)  a  defense  that  the  unit  is  in  violation of the building's
certificate of occupancy or is  otherwise  illegal  under  the  multiple
dwelling law or the New York city housing maintenance code; or
(vii) the court lacks personal jurisdiction over the respondent.
Two  adjournments  shall  not  include  an  adjournment requested by a
respondent unrepresented by counsel for the purpose of securing  counsel
made  on a return date of the proceeding. Such rent or use and occupancy
sums shall be deposited with the clerk of the  court  or  paid  to  such
other  person or entity, including the petitioner or an agent designated
by the division of housing and community renewal,  as  the  court  shall
direct  or  shall  be  expended  for such emergency repairs as the court
shall approve.
(b) In establishing the monthly amount  to  be  deposited,  the  court
shall not exceed the amount of the regulated rent for the unit under any
state, local or federal regulatory scheme, or the amount of the tenant's
rent  share  under  a  state,  local  or federal subsidy program, or the
amount of the tenant's share under an expired subsidy, unless the tenant
has entered into an enforceable new agreement  to  pay  the  full  lease
rent.
(c)  (i)  The  court  shall  not require the respondent to deposit the
portion of rent or use and occupancy, if any, which is payable by direct
government housing  subsidy,  any  currently  effective  senior  citizen
increase   exemption   authorized  pursuant  to  sections  four  hundred

sixty-seven-b and four hundred sixty-seven-c of the  real  property  tax
law,  direct  payment  of  rent  or a two-party check issued by a social
services district or the office of temporary and disability  assistance,
or  rental assistance that is payable pursuant to court orders issued in
litigation commenced in nineteen hundred eighty-seven in a proceeding in
which the  amount  of  shelter  allowance  is  at  issue  on  behalf  of
recipients  of  family  assistance. In the event the respondent or other
adult member of the respondent's household  receives  public  assistance
pursuant  to  title  three  or  title  ten of article five of the social
services law, the respondent  shall,  when  directed  by  the  court  to
deposit  rent and use or occupancy, only be required to deposit with the
court the  amount  of  the  shelter  allowance  portion  of  the  public
assistance  grant  issued  by  the  office  of  temporary and disability
assistance or a social services district. In the  event  the  respondent
receives  a  fixed income, including but not limited to, social security
income, supplemental security income pursuant to title  sixteen  of  the
federal  social security act and title six of article five of the social
services law, or pension income, the respondent shall not be required to
deposit more than thirty percent of the monthly payments.
(ii) Any sum required to be deposited with the court pursuant to  this
subdivision  shall  be offset by payment, if any, made by the respondent
pursuant to section two hundred thirty-five-a of the real  property  law
or section three hundred two-c of the multiple dwelling law.
(d)  (i)  In  the  event that the respondent fails to deposit with the
court or pay, as the case may be, upon the due date, all rent or use and
occupancy which may become due subsequent to the issuance of the court's
deposit order, the court upon an application of the petitioner may order
an immediate trial of the issues raised in the respondent's  answer.  An
"immediate  trial"  shall  mean  that  no  further  adjournments  of the
proceeding upon respondent's sole request shall  be  granted,  the  case
shall  be assigned by the administrative judge to a trial ready part and
such trial shall commence as soon as practicable and continue day to day
until completed.
(ii) The court may extend any time provided  for  such  deposit  under
this subdivision for good cause shown.
(iii)  Upon  the  entry  of  the final judgment in the proceeding such
deposits shall be credited against  any  judgment  amount  awarded  and,
without  further  order  of  the  court,  be paid in accordance with the
judgment.
(e) The court may dismiss any summary proceeding without prejudice and
with costs  to  the  respondent  by  reason  of  excessive  adjournments
requested by the petitioner.
(f) Under no circumstances shall the respondent's failure or inability
to  pay  use and occupancy as ordered by the court constitute a basis to
dismiss any of the  respondent's  defenses  or  counterclaims,  with  or
without prejudice to their assertion in another forum.