Bill Text: NY S02221 | 2011-2012 | General Assembly | Introduced
Bill Title: Increases the ability to remove persons from premises used for illegal purposes; enables tenants, block associations and community organizations within 1,000 feet of a property being used for an illegal activity to serve owners with a written notice requiring the owner to make application for the removal of the person using the premises for illegal activities and allows such organizations to bring a proceeding when the owner fails to act.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-01-18 - REFERRED TO HOUSING, CONSTRUCTION AND COMMUNITY DEVELOPMENT [S02221 Detail]
Download: New_York-2011-S02221-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2221
2011-2012 Regular Sessions
I N S E N A T E
January 18, 2011
___________
Introduced by Sen. KRUGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Housing, Construction and
Community Development
AN ACT to amend the real property actions and proceedings law, in
relation to grounds and procedures to recover premises where use or
occupancy is illegal
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 715 of the real property actions and proceedings
2 law, as amended by chapter 494 of the laws of 1976, subdivision 1 as
3 amended by chapter 555 of the laws of 1978, subdivision 3 as added and
4 subdivisions 4 and 5 as renumbered by chapter 206 of the laws of 1980
5 and subdivision 5 as added by chapter 627 of the laws of 1978, is
6 amended to read as follows:
7 S 715. Grounds and procedure where use or occupancy is illegal. 1.
8 [An owner or tenant, including a tenant of one or more rooms of an
9 apartment house, tenement house or multiple dwelling,] ANY OWNER, TENANT
10 OR TENANT ORGANIZATION of any premises OR ANY BLOCK ASSOCIATION within
11 [two hundred feet from] ONE THOUSAND FEET OF other [demised real] RENT-
12 ED, TRESPASSED UPON OR SQUATTED UPON property used or occupied in whole
13 or in part [as a bawdy-house, or house or place of assignation for lewd
14 persons, or] for purposes of prostitution OR ILLEGAL GAMBLING OR ILLEGAL
15 SALES OF CONTROLLED SUBSTANCES OR MARIHUANA, or for any OTHER illegal
16 trade, business or manufacture, or any [domestic corporation organized
17 for the suppression of vice, subject to or which submits to visitation
18 by the state department of social services and possesses a certificate
19 from such department of such fact and of conformity with regulations of
20 the department,] TENANT ORGANIZATION, COMMUNITY ORGANIZATION, BLOCK
21 ASSOCIATION OR SIMILAR INCORPORATED OR UNINCORPORATED ASSOCIATION ORGAN-
22 IZED TO PROMOTE THE PUBLIC WELFARE WITHIN AN AREA ENCOMPASSING ONE THOU-
23 SAND FEET OF THE SUBJECT PREMISES or any duly authorized enforcement
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07396-01-1
S. 2221 2
1 agency of the state or of a subdivision thereof, under a duty to enforce
2 the provisions of the penal law or of any state or local law, ordinance,
3 code, rule or regulation relating to buildings, may serve personally
4 upon the owner or landlord of the premises so used or occupied, or upon
5 his OR HER agent, a written notice requiring the owner or landlord to
6 make an application for the removal of the person so using or occupying
7 the same. If the owner or landlord or his OR HER agent does not make
8 such application within [five] TWENTY days thereafter; or, having made
9 it, does not in good faith diligently prosecute it, the person, corpo-
10 ration, ASSOCIATION or enforcement agency giving the notice may bring a
11 proceeding under this article for such removal as though the petitioner
12 were the owner or landlord of the premises, and shall have precedence
13 over any similar proceeding thereafter brought by such owner or landlord
14 or to one theretofore brought by him OR HER and not prosecuted dili-
15 gently and in good faith. [Proof of the ill repute of the demised prem-
16 ises or of the inmates thereof or of those resorting thereto shall
17 constitute presumptive evidence of the unlawful use of the demised prem-
18 ises required to be stated in the petition for removal.] NOTWITHSTANDING
19 ANY OTHER PROVISION OF LAW TO THE CONTRARY, NO OWNER OR LANDLORD OR HIS
20 OR HER AGENT NEED MAKE SUCH APPLICATION UNDER THIS ARTICLE UNLESS
21 PROVIDED WITH ADMISSIBLE EVIDENCE CONCERNING A TENANT, OCCUPANT OR
22 TRESPASSER'S ILLEGAL BUSINESS IN THE SUBJECT PREMISES. Both the person
23 in possession of the property and the owner or landlord shall be made
24 respondents in the proceeding. THE OWNER OR LANDLORD OR HIS OR HER AGENT
25 MAY DEMAND WITHIN THE FIRST TEN DAYS AFTER RECEIVING THE WRITTEN NOTICE
26 THAT THE PERSON, CORPORATION, ASSOCIATION OR ENFORCEMENT AGENCY, THAT
27 SERVED IT PARTICULARIZE THE BASIS UPON WHICH THE ACTION IS TO BE
28 BROUGHT. NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW UNLESS A RESPONSE
29 TO SAID DEMAND IS DULY RECEIVED WITHIN FIVE DAYS, AFTER SERVICE OF THE
30 DEMAND THE PERIOD IN WHICH THE OWNER OR LANDLORD OR HIS OR HER AGENT
31 MUST COMMENCE A PROCEEDING IS TOLLED UNTIL AN ADEQUATE RESPONSE IS
32 RECEIVED.
33 2. For purposes of this section, two or more convictions of any
34 [person or persons had, within a period of one year, for any of the
35 offenses described in section 230.00, 230.05, 230.20, 230.25, 230.30 or
36 230.40 of the penal law arising out of conduct engaged in at the same
37 real property consisting of a dwelling as that term is defined in subdi-
38 vision four of section four of the multiple dwelling law shall be
39 presumptive evidence of conduct constituting use of the premises for
40 purposes of prostitution] TENANT OR OCCUPANT OF THE SUBJECT PREMISES HAD
41 WITHIN A PERIOD OF ONE YEAR, FOR ANY OF THE OFFENSES DESCRIBED IN SUBDI-
42 VISION ONE OF SECTION 220.16 OR SECTION 220.31, 220.34, 220.39, 220.41,
43 220.43 OR 220.44 OF THE PENAL LAW, RELATING TO CONTROLLED SUBSTANCES;
44 SECTION 220.45 OF THE PENAL LAW ONLY AS IT RELATES TO SALE OF A HYPO-
45 DERMIC SYRINGE OR HYPODERMIC NEEDLE; SECTION 221.30, 221.35, 221.40,
46 221.45, 221.50 OR 221.55 OF THE PENAL LAW, RELATING TO MARIHUANA;
47 SECTION 225.05, 225.10, 225.15, 225.20 OR 225.30 OF THE PENAL LAW,
48 RELATING TO GAMBLING; OR SECTION 230.04, 230.05, 230.06, 230.20, 230.25,
49 230.30, 230.32 OR 230.40 OF THE PENAL LAW, RELATING TO PROSTITUTION,
50 ARISING OUT OF CONDUCT ENGAGED IN INSIDE THE SUBJECT PREMISES, OR INSIDE
51 THE BUILDING IN WHICH THE SUBJECT PREMISES IS LOCATED SHALL BE PRESUMP-
52 TIVE EVIDENCE OF THE UNLAWFUL USE OF SUCH PREMISES AND THE OWNER'S KNOW-
53 LEDGE OF THE SAME. ANY RELEVANT, ADMISSIBLE EVIDENCE MAY BE ADDUCED TO
54 PROVE THE UNLAWFUL USE OF THE SUBJECT PREMISES. CRIMINAL CONVICTIONS
55 SHALL NOT BE REQUIRED TO PROVE THE UNLAWFUL USE. PROOF OF THE ILL REPUTE
56 OF THE SUBJECT PREMISES SHALL CONSTITUTE EVIDENCE OF THE UNLAWFUL USE.
S. 2221 3
1 UNLAWFUL USE OF THE SUBJECT PREMISES IS ESTABLISHED BY A FAIR PREPONDER-
2 ANCE OF THE EVIDENCE.
3 3. [For the purposes of this section, two or more convictions of any
4 person or persons had, within a period of one year, for any of the
5 offenses described in section 225.00, 225.05, 225.10, 225.15, 225.20,
6 225.30, 225.32, 225.35 or 225.40 of the penal law, arising out of
7 conduct engaged in at the same premises consisting of a dwelling as that
8 term is defined in subdivision four of section four of the multiple
9 dwelling law shall be presumptive evidence of unlawful use of such prem-
10 ises and of the owner's knowledge of the same.] NOTWITHSTANDING THE
11 PROVISION OF ANY LEASE OR REGULATION OR LAW TO THE CONTRARY, NEITHER A
12 NOTICE TO CURE NOR A NOTICE OF TERMINATION IS A PREREQUISITE TO THE
13 COMMENCEMENT OF A PROCEEDING BY THE OWNER OR LANDLORD OR AGENT OR OTHER
14 PERSON ENTITLED TO PROCEED PURSUANT TO THIS SECTION.
15 4. A court granting a petition pursuant to this section may, in addi-
16 tion to any other order provided by law, make an order imposing and
17 requiring the payment by the respondent of a civil penalty not exceeding
18 [five] TEN thousand dollars to the municipality in which the subject
19 premises is located and, the payment of reasonable attorneys fees and
20 the costs of the proceeding to the petitioner. In any such case multi-
21 ple respondents shall be jointly and severally liable for any payment so
22 ordered and the amounts of such payments shall constitute a lien upon
23 the subject realty. HOWEVER, ONLY RESPONDENTS WHO HAVE BEEN WILLFULLY
24 NONCOMPLIANT SHALL BE SUBJECT TO SUCH CIVIL PENALTY. A RESPONDENT MAY BE
25 FOUND WILLFULLY NONCOMPLIANT WHEN HE OR SHE HAS FAILED TO PROCEED
26 DESPITE HAVING BEEN PROVIDED WITH CONVICTION INFORMATION CONCERNING A
27 TENANT, OCCUPANT OR TRESPASSER'S ILLEGAL BUSINESS IN THE SUBJECT PREM-
28 ISES UNLESS HE OR SHE PROVES SUBSTANTIAL MITIGATING CIRCUMSTANCES EXIST.
29 ANY PERSON, CORPORATION, ASSOCIATION OR ENFORCEMENT AGENCY THAT IS FOUND
30 TO HAVE MADE FRIVOLOUS OR UNSUBSTANTIATED CLAIMS WHEN PARTICULARIZING
31 THE BASIS UPON WHICH THE ACTION IS TO BE BROUGHT SHALL BE LIABLE FOR ANY
32 COSTS, FEES OR DAMAGES INCURRED BY THE LANDLORD, OWNER OR HIS OR HER
33 AGENT.
34 5. For the purposes of a proceeding under this section, an enforcement
35 agency of the state or of a subdivision thereof, which may commence a
36 proceeding under this section, may subpoena witnesses, compel their
37 attendance, examine them under oath before himself OR HERSELF or a court
38 and require that any books, records, documents or papers relevant or
39 material to the inquiry be turned over to him OR HER for inspection,
40 examination or audit, pursuant to the civil practice law and rules. If a
41 person subpoenaed to attend upon such inquiry fails to obey the command
42 of a subpoena without reasonable cause, or if a person in attendance
43 upon such inquiry shall, without reasonable cause, refuse to be sworn or
44 to be examined or to answer a question or to produce a book or paper,
45 when ordered to do so by the officer conducting such inquiry, he OR SHE
46 shall be guilty of a class B misdemeanor.
47 S 2. This act shall take effect immediately.
