§ 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\nfor adults and enriched housing program admission agreements. 1. (a) A\nspecial proceeding to terminate the admission agreement of a resident of\nan adult home, residence for adults or enriched housing program and\ndischarge the resident therefrom may be maintained in the county court,\nthe justice court of the village, the town justice court, the court of\ncivil jurisdiction in a city, or the district court which has\njurisdiction over proceedings brought pursuant to article seven of the\nreal property actions and proceedings law.\n (b) The place of trial of the special proceeding shall be within the\njurisdictional area of the court in which the adult home or residence\nfor adults is situated; except that where the facility is located in an\nincorporated village which includes parts of two or more towns, the\nproceeding may be tried by a town justice of any such town who keeps an\noffice in the village.\n 2. The proceeding may be brought by the operator of an adult home,\nresidence for adults or enriched housing program.\n 3. (a) The special proceeding prescribed by this section shall be\ncommenced by petition and a notice of petition. A notice of petition may\nbe issued only by an attorney, judge or the clerk of the court; it may\nnot be issued by a party prosecuting the proceeding in person.\n (b) The notice of petition shall specify the time and place of the\nhearing on the petition.\n 4. The notice of petition and petition shall be served at least five\nand not more than twelve days before the time at which the petition is\nnoticed to be heard.\n 5. (a) Service of the notice of petition and petition shall be made by\npersonally delivering them to the resident; and at the time of such\nservice, a copy of such notice of petition and petition shall be mailed\nto the resident's next of kin and to the person designated in the\nadmission agreement as the responsible party, if any, and the\ndepartment. If service by personal delivery of the notice of petition\nand petition upon a resident, who has been removed from the facility as\npermitted by subdivision three of section four hundred sixty-one-g of\nthis article, is not possible, then service upon such resident shall be\nmade by any of the methods permitted by section three hundred eight of\nthe civil practice law and rules.\n (b) The notice of petition and petition together with proof of service\nthereof on the resident and proof that copies thereof have been mailed\nto the resident's next of kin and to the person designated in the\nadmission agreement as the responsible party, if any, shall be filed\nwith the court or clerk thereof within three days after delivery to the\nresident.\n (c) Service shall be complete upon filing proof of service.\n 6. The petition shall be verified by the person authorized by\nsubdivision two of this section to maintain the proceeding; or by a\nlegal representative, attorney or agent of such person pursuant to\nsubdivision (d) of section thirty hundred twenty of the civil practice\nlaw and rules.\n Every petition shall:\n (a) state the interest of the petitioner in the premises from which\nremoval is sought;\n (b) state the resident's interest in the premises and his relationship\nto petitioner with regard thereto;\n (c) describe the premises from which removal is sought;\n (d) state the facts upon which the special proceeding is based; and\n (e) state the relief sought. The relief may include a judgment for\npayment of all charges, expenses and other assessments due.\n 7. The resident may answer in writing prior to the date the petition\nis to be heard or orally at the time the petition is heard. The resident\nmay interpose any defense that he may have in his answer.\n 8. If the relief sought by the operator includes a judgment for\npayment of all charges, expenses and other assessments due, then any\ncounterclaims which the resident may have against the operator may be\nheard in a special proceeding maintained pursuant to the provisions of\nthis section, provided, however, that the court in its discretion may\nsever such claims and counterclaims from the special proceeding.\n 9. Where triable issues of fact are raised, they shall be tried by the\ncourt. The court, in its discretion, at the request of one or both of\nthe parties may grant an adjournment for not more than ten days.\n 10. (a) The court shall direct that a final judgment be entered\ndetermining the rights of the parties with regard to the admission\nagreement.\n (b) The judgment, including such money as it may award for use and\noccupancy of the facility or otherwise, may be docketed in such books as\nthe court maintains for recording the steps in a summary proceeding;\nunless a rule of the court, or the court by order in a given case\notherwise provides, such judgment need not be recorded or docketed in\nthe books, if separately maintained in which are docketed money\njudgments in an action.\n 11. (a) Upon rendering a final judgment for petitioner, the court\nshall issue an order of removal directed to the sheriff of the county or\nto any constable or marshal of the city in which the facility is\nsituated, or, if it is not situated in a city to any constable of any\ntown in the county, describing the property, and commanding the officer\nto remove the resident.\n (b) The officer to whom the order of removal is directed and delivered\nshall give at least seventy-two hours notice, in writing and in the\nmanner prescribed in this section for the service of a notice of\npetition, to the person to be removed and shall execute the order\nbetween the hours of sunrise and sunset.\n 12. (a) If a proceeding is brought by an operator of an adult home,\nresidence for adults or enriched housing program pursuant to the\nprovisions of this section and the reason for the proceeding is that a\nresident of such a facility has not paid the authorized charges, the\ncourt shall stay the issuance of the order of removal for ten days from\nthe date a judgment is rendered. The court, in its discretion, may stay\nthe issuance of an order of removal for up to ninety days if the reason\nfor the termination of the admission agreement and discharge of the\nresident is that the resident failed to pay the authorized charges and\nsuch nonpayment was due to an interruption by a government agency in the\ndelivery to such resident of any public benefits to which such resident\nis entitled. During the pendency of such stay, the operator of the\nfacility, as part of the provision of case management services shall be\nrequired to assist the resident who shall cooperate with the operator,\nin obtaining any such public benefits or any supplemental public\nbenefits which are available to persons who have not received their\nregular public benefits.\n (b) If a proceeding is brought by an operator of an adult home,\nresidence for adults or enriched housing program pursuant to the\nprovisions of this section, and the reason for the proceeding is\nrepeated behavior by the resident which directly impairs the well-being,\ncare or safety of the resident or any other resident or which\nsubstantially interferes with the orderly operation of the facility, the\ncourt, in its discretion, upon application of the resident, may stay the\nissuance of the order of removal for up to thirty days from the date a\njudgment is rendered.\n (c) If a proceeding is brought by an operator, administrator or\nreceiver of an adult home, residence for adults or enriched housing\nprogram pursuant to the provisions of this section, and the reason for\nthe proceeding is that the facility has had its operating certificate\nrevoked or temporarily suspended pursuant to subdivision four of section\nfour hundred sixty-d of this article, or the operator has voluntarily\nsurrendered the operating certificate for the facility to the\ndepartment, the court, in its final judgment entered pursuant to\nsubdivision ten of this section, shall not direct the facility to remain\nopen and in operation.\n 13. During the pendency of a special proceeding brought pursuant to\nthis section, the operator of an adult home, residence for adults or\nenriched housing program shall be required to honor all terms of the\nadmission agreement until the resident is removed.\n 14. Nothing contained herein shall be deemed to alter or abridge any\nright of a resident or operator of an adult home, residence for adults\nor enriched housing program to obtain any relief to which such persons\nare entitled in any other court of competent jurisdiction.\n 15. Notwithstanding the provisions of this article, nothing contained\nherein shall be construed to create a relationship of landlord and\ntenant between an operator of an adult home, residence for adults or\nenriched housing program and a resident thereof.\n 16. Notwithstanding any other provision in this section to the\ncontrary, the admission agreement of a resident in an enriched housing\nprogram may be terminated and the resident discharged pursuant to the\nprovisions of section four hundred sixty-one-g of this article and\npursuant to a special proceeding as set forth in this section; provided,\nhowever, where such resident has an existing lease with the landlord of\nthe premises in which the program is housed, the resident may not be\ninvoluntarily removed from the premises except in accordance with the\nprovisions of such lease and applicable law and regulation.\n