Tuesday, 27 August 2019 14:58

Suffolk County Bar Association Blog

 

Note:  Jarrett M. Behar, a partner of the firm Certilman Balin Adler & Hyman, LLP, practices in the areas of commercial litigation, real estate development and construction law.  He is the co-chair of the Suffolk County Bar Association Transactional and Corporate Law Committee, an Officer and Associate Dean of the Suffolk Academy of Law and the Vice-President of the Commack Union Free School District Board of Education.  For additional information concerning this article, please feel free to contact Mr. Behar at This email address is being protected from spambots. You need JavaScript enabled to view it.

Contract Law: The COVID-19 Shutdown and the Impossibility of Performance Defense

As we are all painfully aware, Governor Cuomo has issued an Executive Order directing that all “non-essential” businesses statewide terminate their in-office personnel functions. In addition to the public health and policy issues that arise from this Order, a myriad of legal questions also follow.  While there are no concrete answers to many of these questions given the unprecedented nature of the COVID-19 pandemic, it is helpful to look to caselaw to anticipate how these issues may play out in the business disputes that are sure to emerge from this situation.  One such issue is the applicability of the defense of impossibility of performance that may be asserted against a party seeking to enforce its contractual rights against another party that has failed to perform its obligations. 

General contract law in New York (and most places) provides “that once a party to a contract has made a promise to perform, it must follow through or be liable for damages, even when unforeseen circumstances make that performance burdensome.”[i]  The defense of impossibility of performance has been typically applied very narrowly in light of the view that a contract, when distilled down, is really just an arm’s length allocation of risks between the parties.[ii]  As a result, the Court of Appeals has recognized that this defense should only be available in “extreme circumstances” and “only when the destruction of the subject matter of a contract or the means of performance makes performance objectively impossible.”[iii]  In addition, the event that produced the impossibility must not have been something that could have been foreseen or guarded against in the contract.[iv]

In a general sense, the COVID-19 pandemic was not foreseeable to parties that entered into contractual agreements through most of 2019. However, can the same be said about contracts that were entered into after the first case of COVID-19 was reported in China around December 31, 2019 or after the first case was reported in the United States around January 21, 2020?[v]  These questions will undoubtedly have to be answered by the courts as businesses become unable to perform their contractual obligations as a result of the COVID-19 pandemic and the ensuing governmentally-ordered restrictions.

One case resulting from a governmental act occurred in Orange County, New York when the purchaser in a sale of real property contract attempted to rescind the contract after the relevant jurisdiction enacted a moratorium on subdivision approvals and then enacted a revised zoning code that prohibited the type of subdivision contemplated in the agreement.[vi]  The Appellate Division, Second Department affirmed the trial court’s dismissal of the action and held that it was not unforeseeable that the town would change its zoning code in a manner rendering the planned subdivision impossible.[vii]  The court partially relied on its holding in an earlier case that found that sophisticated developers should either anticipate such a change or guard against it in the terms of the underlying contract.[viii]

Similarly, when a prospective purchaser attempted to use the impossibility of performance defense based on the loss of nearly of all of his personal assets as a result of the Bernie Madoff scandal, the court found that the default should not be excused and that the seller was entitled to retain the purchaser’s down payment as liquidated damages for the breach.[ix]

In a case concerning an executive order, the Appellate Division, First Department dealt with a company that had purchased insurance against an air traffic controller’s strike that would disrupt its necessary distribution chain.[x]  The policy provided that there would be no liability to the carrier unless the strike continued for seven days.[xi]  When a strike eventually occurred, it was unforeseeably terminated by declaration of President Reagan firing all of the air traffic controllers three days after the strike began.[xii]  Although the court found that there have been circumstances where governmental acts have truly made performance impossible, and that there was no way that the company could have reasonably anticipated that the President would end the strike by firing all of the air traffic controllers, the facts here did not constitute a sufficient impossibility of performance defense.[xiii]  Instead, the court relied on a strict interpretation of the contractual provision as written: three is less than seven.[xiv]

This is not to say that there is not law to support the use of the defense when an action truly renders performance impossible. The Appellate Division, First Department also dealt with a transportation company that had contracted with the City of New York to furnish, among other things, tugboat services for sanitation barges.[xv]  Subsequently, there was a portwide strike and there was no practical way for the company to provide the contracted for tugboat services to the City.[xvi]  As a result, the court found that the transportation company may not be liable to the City for its failure to provide the services as result of the impossibility of its performance and it reversed the trial court’s grant of summary judgment in favor of the City.[xvii]

Finally, in a case arising from the tragedy that took place on September 11, 2001, a court held that the untimely cancellation of an African safari could be excused by the impossibility of performance defense based on a claim that timely communicating the cancellation from Staten Island was impossible in the immediate aftermath of the terrorist attacks.[xviii]

Ultimately, the underlying facts leading to the assertion of an impossibility of performance defense will be determinative as to its potential success. It seems clear that the financial consequences of the COVID-19 pandemic will not, standing alone, be enough to excuse performance. However, if the performance is truly rendered impossible by the closure of a business that cannot operate as a result of the Governor’s stay-at-home order, then it may be possible that contractual performance will be excused, or, at the very least, the time to perform tolled until performance is no longer impossible.

 

[i] See Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 902 [1987].

[ii] See id.

[iii] See id.

[iv] See id. (citing, inter alia, 407 E. 61st Garage v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275 [1968]).

[v] See <https://www.nytimes.com/article/coronavirus-timeline.html>

[vi] See RW Holdings, LLC v. Mayer, 131 A.D.3d 1228, 1229 [2d Dep’t 2015].

[vii] See id.at 1230.

[viii] See id. (citing Pleasant Hill Developers, Inc. v. Foxwoods Enters., LLC, 65 A.D.3d 1203, 1206 [2d Dep’t 2009]).

[ix] See Sassower v. Blumenfeld, 24 Misc.3d 843, 845-46 [Sup. Ct. Nassau County 2009]. 

[x] See Metpath Inc. v. Birmingham Fire Ins. Co. of Penn., 86 A.D.2d 407, 408 [1st Dep’t 1982].

[xi] Id. at 409-410.

[xii] Id. at 408.

[xiii] See id. at 411-413. 

[xiv] See id. at 413-414.

[xv] See City of N.Y. v. Local 333, Marine Division Int’l Longshoreman’s Assoc., 79 A.D.2d 410, 411 [1st Dep’t 1981].

[xvi] Id. at 413. 

[xvii] See id. at 414.

[xviii] See Bush v. ProTravel Int’l, Inc., 192 Misc.2d 743, 7753-754 [Sup. Ct. Richmond County 2002].

SO YOU WANT TO BECOME A RESIDENTIAL LANDLORD, TIMES ARE A CHANGING

by Irwin Izen - Irwin S. Izen, is a partner at Falcon, Rappaport & Berkman, PLLC with offices at 265 Sunrise Hwy., in RVC and 655 Third Avenue in NYC specializing in transactional, real estate and business law.

This month’s transactional law column focuses on your client who inherits his uncle’s Port Jefferson single family home and consults with you on renting the property.

Ownership of the property is the first inquiry. Has the deed been transferred from the estate to your client, the beneficiary ?  While this may seem like a simple question, confirming ownership upon a review of the deed will no doubt generate further inquiry into limiting liability and how title should be held.

Owning the property individually is risky, but with sufficient insurance in place, is a simple option, particularly if financing the property is contemplated. A clever negotiating strategy is to allow for the permitted transfer into a single member entity, owned by your client.  Absent this provision, most clients will want you to answer the “age old” question of how do I limit my liability ?  Whether a LLC or Sub S Corp., both provide limited liability, but either way a separate ownership entity is recommended. While providing limited liability, there are some unintended business consequences resulting from separate entity ownership.

Once an entity, owns the property, a normal homeowners policy may be unavailable and a more costly commercial policy covering lost rent should be explored. Exemptions are inapplicable and other assessment issues arise with this type of ownership.  Along these same lines, an inquiry with the local “town rental permit” office is likely to produce a formal application and fee to be paid.  For the novice Landlord, that converted garage will be a problem and counsel will best be served to make such an inquiry if assisting in this application.  All existing structures must be in compliance, including the installation of smoke and CO2 detectors and providing ingress and egress access where necessary.

The rental permit process should not be ignored. Some towns have implemented local ordinances prohibiting realtors from listing illegal rentals and assessing fines if violated.  Likewise, for that projected AirBnB waterfront property flashing $$$ signs, what if any transient rental ordinances will the property be subject to.

Alas, with a proper permit in hand your client now seeks out qualified renters. Here are some cautionary thoughts under the newly enacted Housing Stability and Tenant Protection act of 2019 (HSTPA):

  1. The first indicia of a successful Landlord /Tenant relationship is the tenant’s ability to pay the rent. An entire tenant screening industry has emerged to assist landlords in evaluating candidates throughout the application process. A process which now prohibits screening from including any court or other summary proceeding inquiries. Other HSTPA provisions eliminate application fees while limiting background check charges and permitting tenants to bring their own background check if within 30 days of renting [RPL sec. 227-f, 238-(a)(1)(B)]. Furthermore, the HSTPA has created a rebuttable presumption that viewing court records or other negative screening information as it relates to prior summary proceedings, will subject the Landlord to possible civil penalties.
  2. Written leases should now be drafted acknowledging the newly enacted pre occupancy joint inspections, the security deposit limit [now limited to one month’s rent GOL sec. 7-108 (1-a)], the rent increase restrictions (if more than a one year term), the late fee cap (RPL 238-a(2)} and any other statutory requirements.
  3. A landlord may no longer make an oral rent demand. A written demand served on 14 days notice is now required for non payment. Service of the rent demand, if required to be via a process server, will increase costs and further delay the eviction.
  4. The tenant’s ability to pay right up until a hearing or the adjudication of the matter will render any non payment proceeding “moot”. No longer will your client be able to “refuse payment”and terminate the tenancy.  
  5. Upon vacating the premises, any claim to a portion of the security deposit must be detailed and sent in writing to the tenant with the burden of proof on the Landlord to prove the “reasonableness” of the security deduction [GOL sec. 7-108 (1-a)]. Good luck on getting a forwarding address upon the tenant vacating and expect every tenant to state “I never got the detailed letter,” so having on file a more permanent secondary “address” is suggested. You know that any certified mail sent will undoubtedly be returned unclaimed.  
  6. Rent has a definition and limits as per the HSTPA and receipts must be given for payments (RPL sec. 235-e).
  7. Mitigation is now a good faith obligation on behalf of the Landlord (no doubt a case by case basis which will clog the District Court) [RPL 227-e]. A tenant who vacates in violation of a rental agreement can allege the Landlord made no effort (regardless of any such effort) to re rent the premises and further muddy the court’s calendar. Landlords (caveat, those with proper rental permits) should be encouraged to at least list or advertise for rent and keep this documentation available in a mitigation hearing.                                                          
  8. Other procedural changes under the HSTPA affecting your client as a new landlord are related to the eviction process (a landlord’s worst nightmare). The 72 hour notice has been replaced with a 14 day notice. An adjournment by the tenant is now no less than 14 days unless agreed to between the parties and perhaps most distressing is the discretionary stay provisions of RPAPL sec. 753 which can be extended under certain hardships.                                                                                                                        
  9. With the landscape of Landlord/Tenant residential practice set to change under the HSTPA, the transactional attorney should get ahead of the change and review your residential leases for compliance while making sound suggestions in furtherance of anticipated summary proceedings which may now become more problematic. As with any new statute, the ability to argue a particular fact pattern in light of the new HSTPA affords you the opportunity to set the tone for how the HSTPA will be interpreted. Knowing what factual argument will be most persuasive under the new statute allows you to control the narrative and be better prepared for your action in the TransAction.

CIVILITY…CAN IT BE RESUSCITATED?

By Harvey Besunder, Esq., & Justin M. Block, Esq.

                         With civility being far less prevalent than ethical issues these days, it’s no wonder that our members tend to forget that the full name of this committee is “Professional Ethics and Civility”.  A vast majority of the committee’s time is spent addressing ethical inquiries submitted by our members.  Certainly, providing guidance on ethical issues is a very important task, and nobody could argue that it should take a back seat to anything.  It is critical, however, that we remember that civility should similarly be a central focus of the committee, and the bar in general.

                        Justice Ruth Bader Ginsburg famously said “You can disagree without being disagreeable.”  Never has this advice been more necessary that in the practice of law today.

                        It is almost axiomatic these days that, at some point, an adversary will shift from making legal arguments in support of his or her clients to ad hominem attacks, either in pleadings or in correspondence, spewing venom and invective about us, our legal skills, or perhaps even our backgrounds and ethnicity.  The natural instinct is to react in kind, pointing out to the Judge all of the things about our adversary that makes him or her a miserable human being and a terrible lawyer.  Oh, and he or she has bad breath too.  Our advice:  stop, take a moment, and remember that what we say and how we say it reflects on us. 

                        We are not recommending that you completely stifle your need to scream, pound your desk, or vent.  Those are not only necessary, they are expected.  Our advice is, however, to do that privately and not in legal papers or letters to the Court. Instead, take the high road.  As has so often been said, we are lawyers;  we don’t react, we respond.

                        In this regard, Judges are no different from our elementary school teachers.  When they see bad behavior, they will address it.  The role of the Judge is to decide cases, not to mediate disputes between lawyers who are unable to have normal civil discourse.  To compel our judiciary to try to get us to “talk nice to one another” not only distracts them from the task at hand, it also diverts already strained judicial resources.  It has been our experience that Judges are loathe to impose sanctions except in more extreme cases.  These days, with the economics of the legal profession adding stress to our lives, we posit the following question:  Who wants to take a chance on having a Judge decide we should take money out of our pockets because we were acting badly?

                        Similarly, having had numerous conversations with various Judges in many different courts, we have learned that it is virtually unanimous among the judiciary that vitriolic attacks on other lawyers (or Judges, for that matter) is never a winning strategy.  Judges are well aware that this sort of behavior is often the refuge of a lawyer who has no legitimate legal position to argue on behalf of his or her client.  The point of litigation is to convince the Judge that your position is correct.  When we stray from our lane and veer into the dangerous territory of incivility, we distract the Judges from our advocacy and cause them instead to focus on our own behavior.

                        That is not to say that improper or unethical conduct should not be brought to the attention of the Court or, under appropriate circumstances, the various committees governing the conduct of lawyers.  They absolutely should, provided that, under the current Rules of Professional Conduct, making a complaint is both necessary and appropriate.

                        Too many of us believe Carl Sandburg was right when he said “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”  In fact, the common corollary to this is “And when you are pounding the table and yelling like hell, make sure to throw some personal insults in there.  That’ll show ‘em.”  Again, not a way to prevail or even to distinguish ourselves, at least in the way we would like.

                        We have all heard it, whether from our inner voice or a mentor along the way.  Act like a lawyer.  Being mean-spirited and deviating from advocacy to abusive behavior is not acting as a lawyer.   Rather, it is childish bullying, and it has no place in the practice of law.

                        Way back in 1997, the Courts promulgated the Standards of Civility for the legal profession.[i]  In April of this year, the New York State Bar Association approved an update.  While we realize that these Standards are aspirational, we submit that the profession should be aware of them, and should strive to comport with these standards.  To paraphrase one of our favorite sayings, civility is not a character flaw.

 These can be found online at https://www.nycourts.gov/LegacyPDFS/IP/jipl/pdf/standardsofcivility.pdf

Note: Justin M. Block is of counsel to Sinnreich Kosakoff & Messina, LLP in Central Islip.  In addition to being the immediate Past President of the Suffolk County Bar Associatiion, he has been a member or chair of numerous committees, including over 20 years on the Professional Ethics and Civility Committee, serving twice as co-chair.  He is a frequent panelist at ethics programs.  Mr. Besunder served as President of the Suffolk County Bar Association, and has been a member and/or Chair of that Association's Condemnation Committee, Grievance Committee, Judiciary Committee, and Bench-Bar Committee.

 

 

 

 

 

 

 

 

Steady Referrals at Your Fingertips

by Paul Devlin, Esq.

Paul Devlin is an associate at Gentile & Tambasco where his practice focuses on personal injury litigation.  He is an active member of the SCBA serving on the Board of Directors; as co-chair of the membership services and activities committee and as a volunteer for the Suffolk Academy of Law.  

Paul Margiotta built his entire practice using the Lawyer Referral and Information Service (LRIS). The practice of law was a second career for him. Prior to obtaining his law license, Paul was president of the Nassau County Court Officer’s Benevolent Association, representing all Nassau County Court Employees. He wanted to hit the ground running in his new career so he accepted a position with the Town of Babylon Special Prosecutor’s office. One of the perks of the job was that he would be permitted to moonlight, i.e., he could work there full time and simultaneous build his solo practice. The biggest hurtle he faced in solo practice was client acquisition. How could he be at work all day and expect clients to find him and come to him at night? To solve this problem, he turned to the LRIS. This decision paid off in spades. The steady stream of clients that came to him through the LRIS were not fickle. They had called the SCBA and were serious about hiring a lawyer. In terms of hard numbers, he received about 7 referrals per week, and of those referrals he took on about 2-3 clients per week. The practice areas of the inquires varied from civil rights to school law, municipal law, contracts, litigation, and even personal injury. After a couple of years of this, he found that he was getting just as much work from prior clients who recommended him as he was getting from the LRIS. Today, he has a thriving practice in Bay Shore, The Margiotta Law Firm. He is also the Executive Director of the Suffolk County Traffic and Parking Violation Agency. He continues to participate in the LRIS and is now co-chair of the LRIS committee, along with former SCBA President Donna England.

For those readers interested in the LRIS but want to know more, the following is an overview of the system. Potential clients get routed to the LRIS in a few different ways. Countless attorneys have told me that when they have conducted an intake but are not interested in taking on a potential client, they recommend that the potential client call the Suffolk County Bar Association (SCBA), which routes them to the LRIS. Also, the SCBA has posted several signs in courthouses advising potential clients that they may call the SCBA if in need of a lawyer. The newest addition to the LRIS is The Community Lawyer. It is a cloud-based platform which has been in effect for just over a year. Potential clients and attorneys can access the system at scba.community.lawyer. Attorneys who are registered with the LRIS can update their profiles which are visible to potential clients. They can also upload their required proof of malpractice insurance and manage referrals they have received. When potential clients access the Community Lawyer website, they are asked a few questions to narrow their inquiry by location, practice area, and urgency. The potential client enters a brief description of their matter, and is given the option to pick one of up to three lawyers in the system. If potential clients call the SCBA rather than going online, they are routed to the administrator of the LRIS, Edith Dixon. She enters them into the Community Lawyer system manually and puts them through the Community Lawyer process just as if the potential client were to do the same for themselves online.

After a client chooses a lawyer, the lawyer will receive an alert and is responsible for arranging a half-hour consultation. The fee for the consultation is $25. The lawyer must collect the fee and turn it over to the SCBA. Payment to the SCBA may be made over the Community Lawyer platform. If the client retains the lawyer, the remainder of their attorney-client relationship is independent of the LRIS. If the attorney or client decides do not engage past the consultation, the client has the option to go back into the system and try another lawyer. In the last 12 months the LRIS has received approximately 3,500 inquiries. Below is a list of practice areas regarding inquiries in order of most popular to least popular. Only SCBA members in good standing are eligible to register for the LRIS for an annual fee of $125 plus $40 per practice area. Interested members may obtain an application in person at the SCBA or call 631-234-5511.  

Family, Landlord Tenant, Criminal, Social Security (Disability and Overpayment), Matrimony (Modest Means),Real Property,Negligence,Malpractice...and more.  Check the scba.com.community.lawyer for additional practice areas.

INSIDE THE COURTS

By: Hon. Stephen L. Ukeiley

 LANDLORD AND TENANT LAW: NEW LEGISLATION

 

            This is the first of a two-part series on recent law changes regarding rental properties. This Part concentrates on changes to the Real Property Actions and Proceedings Law (RPAPL) and provides an overview of some of the new laws.  Part II will focus on changes to the Real Property Law (RPL) and the General Obligations Law (GOL).

The Housing Stability and Tenant Protection Act of 2019

            On June 14, 2019, the Statewide Housing Stability and Tenant Protection Act of 2019 (the Act) was signed into law.  Part M within the Act, titled The Statewide Housing Security and Tenant Protection Act, pertains to all premises, regulated and unregulated, except where indicated otherwise in the statute.

  1. Rent Re-Defined

            With respect to residential premises, the term “rent” is now defined as “[t]he monthly or weekly amount charged in consideration for use and occupation of a dwelling pursuant to a written or rental agreement” (RPAPL § 702).  The statute further provides that “no fees, charges, or penalties other than rent” may be sought in a residential non-payment proceeding, thereby limiting the money judgment.  A lease provision to the contrary is void (id.).

  1. Payment of Rent Prior to Hearing (Non-payment Proceeding)

            RPAPL § 731 has been amended to provide that the payment of rent prior to the hearing renders a non-payment proceeding moot.  In other words, the full payment made prior to an adjudication on the merits equates to making the landlord whole, and, as a result, the tenancy continues.

  1. Foreclosed Premises

            With regard to holdover proceedings, the Act provides that where an occupant is evicted following either a property or tax foreclosure, the Court records relating to the lessee are sealed and “deemed confidential” (RPAPL § 757).  Unlike a non-payment proceeding, the occupant in a post-foreclosure holdover proceeding may not avoid the eviction by paying the amount awarded prior to the issuance of the judgment because the holdover proceeding was commenced for reasons other than the non-payment of rent.

  1. Rent Demand

            A Landlord may no longer make an oral rent demand (RPAPL § 711(2)).  Instead, a written rent demand must be provided on at least fourteen (14) days notice (formerly was three (3) days) demanding “[t]he payment of the rent, or possession of the premises”.  The rent demand must be formally served (id.).

  1. Proceeding Against the Estate

            The legislation permits a landlord to commence a summary proceeding against the Estate where the tenant passes away during the tenancy and rent is owed.  Any other occupant lawfully in possession may be named in the non-payment proceeding, but the warrant may not be used to remove them (RPAPL § 711 (2)).  The new law eliminated the requirement that a landlord wait three (3) months prior to commencing a summary proceeding where an administrator had not been named.

  1. Return Date and Service

           RPAPL § 732 now provides that where required by the rules of the local Appellate Division, the Notice of Petition and Petition in a non-payment proceeding is returnable within ten (10) days of service (was previously five (5) days).  If the tenant fails to appear, a judgment must be entered in favor of the landlord and, absent a circumstance permitting a longer stay pursuant to RPAPL § 753, the Court may stay issuance of the warrant of eviction up to ten (10) days from the date of service (RPAPL § 732(3)).  If the landlord prevails and the tenant appears, then the Court may stay issuance of the warrant of eviction up to five (5) days from the date of the determination (RPAPL § 732(2)).

            Otherwise, the Act amends the service provisions by eliminating the “5 and 12" Rule.  Instead, a landlord must cause the Notice of Petition and Petition to be served via formal service no fewer than ten (10) days but not more than seventeen (17) days prior to the return date (RPAPL§ 733).

  1. Answer

            Pursuant to RPAPL § 743, a tenant is not required to interpose an Answer.  Rather, the tenant may assert an Answer on the return date, either orally or in writing, and the Answer may include any legal or equitable defenses, and/or counterclaims.  The new legislation eliminated the opportunity to demand an Answer when the Notice of Petition and Petition were served between eight (8) and twelve (12) days prior to the return date.

  1. Adjournments

            Each party in a summary proceeding is entitled to one (1) adjournment.  RPAPL § 745(1) was amended to provide that when issue is joined (e.g., return date), the Court must grant a request for an adjournment, and, absent consent to a shorter period, the adjournment must be not less than fourteen (14) days.  The law further provides that “[a] party’s second or subsequent request for adjournment” is left to the discretion of the Court (id.).

  1. Unlawful Evictions

            Only the Sheriff, pursuant to a lawful order of the Court, may return possession of the property to the landlord. An unlawful eviction (e.g., the use of self-help and changing of the locks without the tenant’s permission or providing access) is now classified as a Class A Misdemeanor (up to one (1) year in jail).  An offender may be liable for civil penalties of $1,000 - $10,000 for each violation (RPAPL § 768).

  1. Warrant of Eviction

            The warrant of eviction must state the earliest date the eviction may occur (RPAPL § 749(1)).  In addition, the 72-Hour Rule has been eliminated.  Now, the Sheriff must formally serve a Fourteen (14) Day Notice prior to performing the eviction, and the warrant must be executed on a business day (Monday - Friday) between sunrise and sunset (RPAPL § 749(2)(a)).

  1. Stays

            RPAPL § 749(3) permits the Court, for good cause shown, (1) prior to execution, to stay execution of or vacate the warrant of eviction or (2) following execution, to restore the tenant to possession.  The provision further provides that where the full amount of rent is paid or deposited with the Court prior to the execution of the warrant, the warrant must be vacated unless the landlord demonstrates that the rent had been withheld in “bad faith”.

            RPAPL§ 753 governs stays on “issuance” of the warrant of eviction and collecting costs regarding residential premises for up to one (1) year (was previously six (6) months).  To grant the stay, the occupant must demonstrate: (1) the premises are used for residential purposes (other than hotels or rooming houses); (2) the application is made in good faith; and (3a) “due and reasonable efforts” were unsuccessfully taken to find similarly suitable alternative housing in the neighborhood or (3b) denial would cause “extreme hardship” to the applicant or the applicant’s family (RPAPL § 753(1)).  Outside a city of more than one (1) million residents, for those with a school-aged child, the term “neighborhood” is defined as “school district”.

            If the summary proceeding was predicated upon a breach of the rental agreement, the Court must stay issuance of the warrant of eviction for thirty (30) days to afford the tenant an opportunity to cure the breach (RPAPL § 753(4)).  A lease provision waiving the occupant’s rights under RPAPL § 753 is void as against public policy (RPAPL § 753(5)).

            Pursuant to RPAPL § 756, a summary proceeding involving residential property is stayed where the utilities are shut off due to the landlord’s failure to pay.  The stay remains in effect until such time as the utilities are paid and restored to “working order” (RPAPL § 756).

            In closing, the changes to the RPAPL are substantial. Counsel should thoroughly review the new laws and adjust accordingly.

Note: The Honorable Stephen L. Ukeiley is a Suffolk County Acting County Court Judge and Suffolk County District Court Judge. Judge Ukeiley is also an adjunct professor at the Touro College Jacob D. Fuchsberg Law Center and the author of numerous legal publications, including his most recent book, The Bench Guide to Landlord & Tenant Disputes in New York (Third Edition)©.

 

* The information contained herein is for informational and educational purposes only. This column should in no way be construed as the solicitation or offering of legal or other professional advice. If you require legal or other expert advice, you should consult with an attorney and/or other professional.

 

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