Bill Text: NY S09470 | 2021-2022 | General Assembly | Introduced
Bill Title: Authorizes special proceedings to convey title to abandoned commercial and industrial property to a city, town, or village; provides for certification of abandonment, notice to the owner of record, commencement of proceedings and the decision and judgment of the court; provides for the repeal of such provisions upon expiration thereof.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2022-12-30 - APPROVAL MEMO.113 [S09470 Detail]
Download: New_York-2021-S09470-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9470 IN SENATE May 31, 2022 ___________ Introduced by Sen. COONEY -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the real property actions and proceedings law, in relation to authorizing special proceedings to convey title to aban- doned commercial and industrial real property to a city, town, or village; and providing for the repeal of such provisions upon expira- tion thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The real property actions and proceedings law is amended by 2 adding a new article 19-B to read as follows: 3 ARTICLE 19-B 4 SPECIAL PROCEEDING TO CONVEY TITLE TO ABANDONED COMMERCIAL AND 5 INDUSTRIAL 6 REAL PROPERTY TO CITY, TOWN, OR VILLAGE 7 Section 1980. Applicability. 8 1981. Certification of abandonment. 9 1982. Notice. 10 1982-a. Alternative notice provisions. 11 1983. Commencement of proceeding. 12 1984. Decision and judgment of the court. 13 § 1980. Applicability. The department or agency of a city, town, or 14 village, responsible for the enforcement of the commercial building 15 code, industrial building code, or any other law, code or ordinance 16 governing the occupancy and maintenance of commercial or industrial real 17 property (hereinafter in this article referred to as "the department") 18 may institute a proceeding in accordance with the provisions of this 19 article for a judgment vesting in the city, town, or village title to a 20 commercial or industrial real property which has been abandoned by the 21 owner. 22 § 1981. Certification of abandonment. 1. The department may make a 23 finding that a commercial or industrial real property is abandoned if: 24 (a) The owner of a commercial or industrial real property has failed 25 for a period of at least three consecutive months either to collect rent 26 or to institute summary proceedings for nonpayment of rent, and the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01842-04-2S. 9470 2 1 department finds that the commercial or industrial real property has 2 become a danger to life, health or safety as a result of the owner's 3 failure to assume its responsibility for its condition. Such failure may 4 be shown by such facts as an owner's failure to provide services includ- 5 ing, but not limited to, the failure to make repairs, supply janitorial 6 service, purchase fuel or other needed supplies, or pay utility bills. 7 The appointment of an administrator shall not prevent the department 8 from making a finding that a commercial or industrial real property is 9 abandoned; or 10 (b) In the case of a vacant commercial or industrial real property, it 11 is not sealed or continuously guarded as required by law or it was 12 sealed or is continuously guarded by a person other than the owner, a 13 mortgagee, lienor or agent thereof, and either of the following facts 14 exists: 15 (i) A vacate order of the department or other governmental agency 16 currently prohibits occupancy of the commercial or industrial real prop- 17 erty; or 18 (ii) The tax on such premises has been due and unpaid for a period of 19 at least one year; or 20 (iii) The property has had a zoning, building or property maintenance 21 code violation which has been continuously outstanding and not remedi- 22 ated for a period of at least one year from the date the original order 23 to correct or notice of violation was served upon the property owner 24 pursuant to subdivision four of section three hundred eight of the civil 25 practice law and rules if the owner is a natural person, or pursuant to 26 section three hundred ten, three hundred ten-a, three hundred eleven or 27 three hundred eleven-a of the civil practice law and rules if the owner 28 is a partnership, limited partnership, corporation or limited liability 29 company, respectively; or 30 (c) In the case of a building for which an administrator has been 31 appointed: 32 (i) no motion for the termination of the judgment has been granted by 33 the appointing court; 34 (ii) no mortgagee or lienor has commenced foreclosure proceedings; and 35 (iii) at least six months have passed since the granting of a judgment 36 appointing an administrator. 37 2. When the department finds that a commercial or industrial real 38 property is abandoned within the meaning of this article, it shall make 39 and file among its records a certification containing such finding and 40 the facts on which it is based. Further, it shall immediately affix to 41 the commercial or industrial real property in a prominent and conspicu- 42 ous location, a notice that the real property has been found to be aban- 43 doned and that it is a crime to take, remove or otherwise damage any 44 fixture or part of the property or any building or structure located 45 thereon. 46 § 1982. Notice. 1. If the department proposes to institute proceedings 47 pursuant to this article, it may file a copy of the certification and a 48 notice of intention to commence such proceedings in the office of the 49 clerk of the county in which the commercial or industrial real property 50 is located. Such notice shall contain the names of all persons required 51 to be served pursuant to this section and shall otherwise meet the 52 requirements of subdivision (b) of rule sixty-five hundred eleven of the 53 civil practice law and rules. The notice shall be indexed by the clerk 54 in the manner prescribed by subdivision (c) of rule sixty-five hundred 55 eleven of the civil practice law and rules for a notice of pendency of 56 action and shall have the same effect as such notice. It shall expireS. 9470 3 1 one year after filing, if no proceeding pursuant to this article has 2 been commenced. Except as otherwise provided herein, all of the 3 provisions of article sixty-five of the civil practice law and rules 4 shall be applicable to the notice filed pursuant to this article. 5 2. The department shall serve upon the owner of the commercial or 6 industrial real property, a copy of the certification. Service shall be 7 made personally or by posting in a conspicuous place upon the commercial 8 or industrial real property and mailing a copy by registered or certi- 9 fied mail to the last known owner at such owner's last known address. 10 The copy of the certification shall be accompanied by a notice stating 11 that proceedings pursuant to this article may be instituted unless the 12 owner notifies the department that the property has not been abandoned. 13 Such notification shall be made by a showing that the conditions upon 14 which the findings in such certification are based do not exist or have 15 been corrected. Such showing shall be made not later than thirty days 16 after the date of such notice. 17 3. Within five days of the service of notice on the owner, a copy of 18 the certification shall be served on each mortgagee, lienor and lessee 19 of record, personally or by registered mail to the address set forth in 20 the recorded instrument or, if no address appears therein, to the person 21 at whose request the instrument was recorded. Such copy shall, in the 22 case of a mortgagee or lienor, be accompanied by a notice that 23 proceedings pursuant to this article may be instituted unless the mort- 24 gagee or lienor, within fifteen days of such mailing, either commences 25 proceedings to foreclose the mortgage or lien or enters into an agree- 26 ment with the department to bring the building into compliance with the 27 applicable provisions of law. 28 4. If the name or address of 29 (a) the last owner of record, or 30 (b) any owner, mortgagee, lienor, or claimant as shown on records 31 maintained by any city official required by any local law to maintain 32 records of persons entitled to notice or process in connection with the 33 maintenance of in rem foreclosure actions, or 34 (c) the person listed as the owner of the property on the latest 35 completed assessment roll, 36 is different from that referred to in subdivisions two and three of this 37 section, a copy of the notice to the owner, or to a mortgagee or lienor, 38 whichever is applicable, shall also be sent to such person at such 39 address by registered mail. 40 § 1982-a. Alternative notice provisions. 1. In lieu of the notice 41 provisions of section nineteen hundred eighty-two of this article, a 42 city, town, or village may elect to adopt the notice provisions of this 43 section. 44 2. (a) Upon the filing of a copy of the certification and notice of 45 intention to commence proceedings pursuant to this article in the office 46 of the county clerk, the department forthwith shall cause a notice of 47 intention to commence proceedings pursuant to this article to be 48 published in each of three non-consecutive weeks in a two-month period 49 in at least two newspapers designated by the city, town, or village. 50 (b) Each newspaper designated for this purpose shall have general 51 circulation in the city, town, or village. An official newspaper of the 52 city, town, or village shall be deemed to satisfy the requirements of 53 this provision. In New York and Bronx counties, the newspapers to be 54 designated for the publication of such notice or any other public notice 55 required pursuant to this article shall be the daily law journal desig- 56 nated by the justices of the appellate division of the first judicialS. 9470 4 1 department and another newspaper designated by such justices pursuant to 2 the provisions of subdivisions one and two of section ninety-one of the 3 judiciary law. 4 (c) Such notice shall be in substantially the following form: 5 "............... Court,............... County. 6 IN THE MATTER OF A PROCEEDING FOR A JUDGMENT VESTING TITLE TO REAL PROP- 7 ERTY WHICH HAS BEEN ABANDONED BY THE OWNER PURSUANT TO ARTICLE NINE- 8 TEEN-B OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW BY.......... 9 (insert name of city, town, or village). NOTICE OF PROCEEDING TO VEST 10 TITLE TO ABANDONED REAL PROPERTY PLEASE TAKE NOTICE that on the........ 11 day of..............., the............ (insert name of city, town, or 12 village), hereinafter, the "Petitioner", pursuant to law, filed with the 13 clerk of .......... county a petition for a judgment vesting title to 14 real property abandoned by the owner against various parcels of real 15 property. Such petition pertains to the following parcels: (insert the 16 description and the name of the owner or owners of record of each parcel 17 as of the date of the filing of the certification). 18 Effect of filing: All persons having or claiming to have an interest 19 in the real property described in such petition are hereby notified that 20 the filing of such petition constitutes the commencement by the Peti- 21 tioner of a proceeding in the court specified in the caption above to 22 title to such real property therein described by a proceeding for a 23 judgment against the owners who abandoned such real property. 24 Nature of proceeding: Such proceeding is brought against the real 25 property only. No personal judgment will be entered herein for such 26 abandonment. 27 Persons affected: This notice is directed to all persons owning or 28 having or claiming to have an interest in the real property described in 29 such petition. Such persons are hereby notified further that a duplicate 30 of such petition has been filed in the office of the Department of the 31 (insert name of city, town, or village) and will remain open for public 32 inspection up to and including the date specified below unless the owner 33 notifies the department that the property has not been abandoned. The 34 last day for notice by the owner that the property has not been aban- 35 doned is hereby fixed as the .......... day of .......... (here insert a 36 date at least three months after the date of the first publication of 37 this notice). 38 Service of answer: Every person having any right, title or interest in 39 or lien upon any parcel of real property described in such petition may 40 serve a duly verified answer upon the attorney for the department 41 setting forth in detail the nature and amount of his or her interest and 42 any defense or objection to the proceeding. Such answer must be filed in 43 the office of the county clerk and served upon the attorney for the 44 department on or before the date above mentioned as the last day for 45 notice to the department that the property has not been abandoned. 46 Failure to answer: In the event of failure to answer by any person 47 having the right to do so, such person shall be forever barred and fore- 48 closed of all his or her right, title and interest in and to the parcel 49 described in such petition and a judgment divesting such person of any 50 right, title or interest in and to the parcel described in such petition 51 may be taken by default. 52 Department: 53 Attorney for Department:" 54 (d) The department shall on or before the date of the first publica- 55 tion of the notice set forth in paragraph (c) of this subdivision cause 56 a copy of such notice to be posted once in its office and shall cause aS. 9470 5 1 copy of such notice to be posted in the county courthouse in the place 2 provided for the posting of public notices. 3 (e) Nothing contained in this section shall be construed to preclude 4 the department from providing for additional public notice of such 5 proceeding by other means, including broadcast on the local access chan- 6 nel of a cable television company having a franchise within the city, 7 town, or village. 8 (f) If the substance of such notice has been incorporated into the 9 petition of foreclosure, the requirements of this section shall be 10 satisfied if the petition is published and posted in the manner 11 prescribed by this section. 12 3. (a) Parties entitled to notice. The department shall, on or before 13 the date of the first publication of the notice above set forth, cause a 14 notice to be mailed to (i) each owner and any other person whose right, 15 title, or interest was a matter of public record as of the date the 16 certification was filed, which right, title or interest will be affected 17 by a judgment divesting the owner of title to the real property, and 18 whose name and address are reasonably ascertainable from the public 19 record, including the records in the offices of the surrogate of the 20 county, or from material submitted to the department pursuant to para- 21 graph (d) of this subdivision, and (ii) any other person who has filed a 22 declaration of interest which has not expired. 23 (b) Notification method. (i) Such notice shall be sent to each such 24 party both by certified mail and ordinary first class mail, subject to 25 the provisions of subparagraph (iv) of this paragraph. The notice shall 26 be deemed received unless both the certified mailing and the ordinary 27 first class mailing are returned by the United States postal service 28 within forty-five days after being mailed. In that event, the department 29 shall attempt to obtain an alternate mailing address from the United 30 States postal service. When notice is required to be sent to the commis- 31 sioner of taxation and finance, an alternate notice may be used by the 32 department, in accordance with instructions prescribed by the commis- 33 sioner of taxation and finance. 34 (ii) If an alternate mailing address is found, the department shall 35 cause the notice to be mailed to such owner at such address both by 36 certified mail and by ordinary first class mail. Notwithstanding any 37 provision of law to the contrary, such owner may notify the department 38 that the property has not been abandoned or serve a duly verified answer 39 to the petition until either the thirtieth day after such mailing, or 40 the date specified by the notice of the proceeding as the last day for 41 an answer, whichever is later. 42 (iii) If no alternate mailing address can be found, then in the case 43 of an owner, the department shall cause a copy of such notice to be 44 posted as provided herein on the property to which the petition relates; 45 in the case of a non-owner, the department shall cause a copy of such 46 notice to be posted in the department and in the office of the clerk of 47 the court in which the petition has been filed. Notwithstanding any 48 provision of law to the contrary, the party to whom such notice is 49 directed may notify the department that the property has not been aban- 50 doned or serve a duly verified answer to the petition until either the 51 thirtieth day after such posting or delivery, or the date specified by 52 the notice of the proceeding as the last day for an answer, whichever is 53 later. 54 (iv) Where an owner is listed as "unknown" on the tax roll and the 55 name of such owner cannot be found in the public record, the notice 56 shall be mailed to the property address by ordinary first class mailS. 9470 6 1 addressed to "occupant" and a copy thereof shall be posted on the prop- 2 erty to which the petition relates. 3 (c) Posting of notice. When a notice is required to be posted on the 4 property to which the petition relates pursuant to this section, the 5 posting shall be deemed sufficient if it is either (i) affixed to a door 6 of a residential or commercial structure on the premises, or (ii) 7 attached to a vertical object, such as a tree, post or stake, and plain- 8 ly visible from the road. Provided, that if, when visiting the premises 9 for this purpose, the department should find thereon an occupant of 10 suitable age and discretion, he or she may deliver such notice to such 11 occupant in addition to or in lieu of posting it. The process of so 12 posting or delivering such notice shall warrant the imposition of an 13 extra charge of one hundred dollars against the parcel, in addition to 14 any other charges authorized by section eleven hundred twenty-four of 15 the real property tax law and without regard to any limitations set 16 forth therein. 17 (d) Changes of address. It shall be the responsibility of any party 18 entitled to notice pursuant to this section to notify the department 19 when his, her or its address changes. Such notification need not be in 20 any particular form as long as it is in writing, affirmatively states 21 that such party's address has changed or uses language to that effect, 22 and sets forth the new address. It shall not suffice to submit to the 23 department an item that merely displays the new address, such as a check 24 upon which the new address has been imprinted, or a letter or envelope 25 which uses the new address as the return address, unless such submission 26 includes language clearly indicating that such address is that party's 27 new address. In the event that a proceeding is challenged on grounds of 28 lack of notice, and the party raising this issue failed to provide a 29 current address to the department pursuant to this paragraph, the court 30 having jurisdiction may take such failure into account when evaluating 31 whether reasonable notice was given. 32 (e) Public record. For purposes of this section, the public record 33 shall be deemed to consist of the books maintained by the recording 34 officer of the county in which the property is located pursuant to 35 section three hundred fifteen of the real property law, the books kept 36 by the clerk of the surrogate's court of the county in which the proper- 37 ty is located pursuant to section twenty-five hundred two of the surro- 38 gate's court procedure act, the tax rolls in the possession of the city, 39 town, or village dated from the certification of abandonment forward. 40 4. The notice to be so mailed shall consist of (a) a copy of the peti- 41 tion and, if not substantially the same as the petition, the public 42 notice of vesting of title, provided that such copies need not include 43 the descriptions or the names of the owners of any parcels in which the 44 addressee does not have an interest, and (b) a statement substantially 45 as follows: "To the party to whom the enclosed notice is addressed: You 46 are presumed to own or have a legal interest in one or more of the 47 parcels of real property described on the enclosed petition. A proceed- 48 ing to vest title to such property based upon the abandonment by the 49 owner has been commenced. This proceeding will result in the loss of 50 ownership of such property and all rights in that property. To avoid 51 loss of ownership or of any other rights in the property, you must 52 interpose a duly verified answer in the proceeding. You may wish to 53 contact an attorney to protect your rights. After.......... (insert the 54 last date to notify the Department), a court will transfer the title of 55 the property to the.......... (Name of the city, town, or village) by 56 means of a court judgment. Should you have any questions regarding thisS. 9470 7 1 notice, please call........ (insert the name of the officer or employee 2 of the Department) at.......... (insert telephone number). 3 Dated,............... (Insert date)." 4 5. (a) An affidavit of mailing of such notice shall be executed. 5 (b) The failure of an intended recipient to receive any such notice 6 shall not invalidate the proceeding or prevent the enforcement of the 7 same as provided by law. 8 (c) The service of the notice required by this section shall be deemed 9 to be equivalent to the service of a notice of petition pursuant to 10 section four hundred three of the civil practice law and rules. 11 6. (a) Nothing contained herein shall be construed to preclude the 12 department from issuing, at its discretion, a duplicate of any such 13 notice, clearly labeled as such, through means other than ordinary first 14 class mail, including but not limited to personal service, registered or 15 certified mail, facsimile transmission, or electronic mail. 16 (b) Nothing contained herein shall be construed to preclude the 17 department from issuing, at its discretion, one or more informal notices 18 to an owner or other party prior to issuing the notice required by this 19 section. 20 (c) The failure of the department to mail any such discretionary, or 21 the failure of an intended recipient to receive such a notice, shall not 22 invalidate the proceeding or prevent the enforcement of the same as 23 provided by law. 24 7. Any notice mailed by ordinary first class mail pursuant to this 25 section may also be mailed in duplicate by certified mail at the option 26 of the department. 27 § 1983. Commencement of proceeding. 1. After all provisions of section 28 nineteen hundred eighty-two of this article have been complied with, the 29 department may commence a proceeding in a court of competent jurisdic- 30 tion in the county in which the commercial or industrial real property 31 is located, to vest title to the property in the city, town, or village. 32 2. The petition in such proceeding shall be accompanied by a copy of 33 the certification and proof by affidavit that the provisions of section 34 nineteen hundred eighty-two of this article have been complied with and 35 that no party served with the notice pursuant to such section has taken 36 the appropriate action prescribed therein in response thereto. 37 3. A copy of the petition shall be served on all persons to whom 38 notice was given pursuant to section nineteen hundred eighty-two of this 39 article by personal service pursuant to article three of the civil prac- 40 tice law and rules. A notice of pendency shall be filed in accordance 41 with the provisions of section sixty-five hundred one of the civil prac- 42 tice law and rules. A copy of the petition shall also be posted in a 43 conspicuous place on the premises in question, accompanied by a notice 44 that any person having or claiming an interest in the property may 45 appear at the hearing thereon to protect his or her interest. 46 4. The petition shall be noticed to be heard not less than fifteen 47 days after service is completed on all parties to the proceeding. 48 5. A special proceeding pursuant to this article may also be commenced 49 by order to show cause, in which case the manner of service and the time 50 at which the order is returnable shall be as prescribed therein by the 51 court. 52 § 1984. Decision and judgment of the court. 1. If any party to the 53 proceeding contests the issue of abandonment, the burden of proving that 54 the commercial or industrial real property is abandoned shall be upon 55 the department, and the court shall make a finding based on the facts 56 before it.S. 9470 8 1 2. (a) Upon application by any party to the proceeding, the court may 2 order a stay of the proceeding for such time as the court deems proper 3 to permit the mortgagee or lienor to foreclose its mortgage or lien and 4 to permit the owner, mortgagor or lienor to enter the property to make 5 repairs or if the property be vacant to seal or continuously guard the 6 building as required by law. The court may impose such terms upon the 7 owner, mortgagee or lienor as it deems proper for the issuance of said 8 order, including the posting of such security, if any, as it may 9 require. At the expiration of the period prescribed by the court, the 10 court may extend the time of the owner, mortgagee or lienor to comply 11 with the order, dismiss the proceeding if the owner, mortgagee or lienor 12 has substantially complied with the order, or issue a judgment as 13 provided in subdivision three of this section, if the court finds that 14 the owner, mortgagee or lienor has failed to comply with the order. 15 (b) Notwithstanding paragraph (a) of this subdivision, if the depart- 16 ment has brought a proceeding pursuant to section nineteen hundred 17 eighty-three of this article based on a finding of abandonment pursuant 18 to paragraph (c) of subdivision one of section nineteen hundred eighty- 19 one of this chapter, the court may not grant a stay for more than six 20 months, nor extend it for more than an additional three months. 21 3. Upon a finding by the court that the commercial or industrial real 22 property is abandoned, the court shall enter a final judgment in favor 23 of the petitioner. The fact that an administrator has been appointed as 24 to the subject property shall not prevent the court from entering a 25 final judgment in favor of the petitioner upon a finding by the court 26 that the commercial or industrial real property is abandoned. The final 27 judgment shall direct such officer of the city, town, or village in 28 which the commercial or industrial real property is located as may be 29 designated in the judgment to execute and record a deed conveying title 30 of the premises to the city, town, or village thirty days after entry of 31 judgment. Upon the entry of such judgment the city, town, or village 32 shall be seized of an estate in fee simple absolute in such land and all 33 persons, including the state of New York, infants, incompetents, absen- 34 tees and non-residents who may have had any right, title, interest, 35 claim, lien or equity of redemption in or upon such lands shall be 36 barred and forever foreclosed of all such right, title, interest, claim, 37 lien or equity of redemption. 38 4. The provisions of section three hundred seventeen of the civil 39 practice law and rules shall not apply to a proceeding instituted pursu- 40 ant to this article. A motion or action to set aside a judgment in a 41 proceeding instituted pursuant to this article on the grounds either 42 that there was a failure to comply with the provisions of this article 43 as to notice or that a defect in the proceeding prejudiced a substantial 44 right of a party may be instituted within ninety days after the deed 45 vesting title in a city has been recorded, but not thereafter. 46 5. The right, title and interest of a purchaser or incumbrancer of a 47 property as to which a deed vesting title in a city, town, or village 48 has been recorded pursuant to a judgment obtained through this article 49 shall not be affected or impaired by a motion or action instituted more 50 than ninety days after such deed vesting title in a city, town, or 51 village has been recorded. 52 § 2. This act shall take effect immediately and shall expire June 30, 53 2025 when upon such date the provisions of this act shall be deemed 54 repealed.
