Section 461-H. Special proceeding for termination of adult home, residence for adults and enriched housing program admission agreements

1.  (a)  A
  special proceeding to terminate the admission agreement of a resident of
  an  adult  home,  residence  for  adults or enriched housing program and
  discharge the resident therefrom may be maintained in the county  court,
  the  justice  court of the village, the town justice court, the court of
  civil  jurisdiction  in  a  city,  or  the  district  court  which   has
  jurisdiction  over  proceedings brought pursuant to article seven of the
  real property actions and proceedings law.
    (b) The place of trial of the special proceeding shall be  within  the
  jurisdictional  area  of  the court in which the adult home or residence
  for adults is situated; except that where the facility is located in  an
  incorporated  village  which  includes  parts  of two or more towns, the
  proceeding may be tried by a town justice of any such town who keeps  an
  office in the village.
    2.  The  proceeding  may  be brought by the operator of an adult home,
  residence for adults or enriched housing program.
    3. (a) The special proceeding prescribed  by  this  section  shall  be
  commenced by petition and a notice of petition. A notice of petition may
  be  issued  only by an attorney, judge or the clerk of the court; it may
  not be issued by a party prosecuting the proceeding in person.
    (b) The notice of petition shall specify the time  and  place  of  the
  hearing on the petition.
    4.  The  notice of petition and petition shall be served at least five
  and not more than twelve days before the time at which the  petition  is
  noticed to be heard.
    5. (a) Service of the notice of petition and petition shall be made by
  personally  delivering  them  to  the  resident; and at the time of such
  service, a copy of such notice of petition and petition shall be  mailed
  to  the  resident's  next  of  kin  and  to the person designated in the
  admission  agreement  as  the  responsible  party,  if  any,   and   the
  department.  If  service  by personal delivery of the notice of petition
  and petition upon a resident, who has been removed from the facility  as
  permitted  by  subdivision  three of section four hundred sixty-one-g of
  this article, is not possible, then service upon such resident shall  be
  made  by  any of the methods permitted by section three hundred eight of
  the civil practice law and rules.
    (b) The notice of petition and petition together with proof of service
  thereof on the resident and proof that copies thereof have  been  mailed
  to  the  resident's  next  of  kin  and  to the person designated in the
  admission agreement as the responsible party, if  any,  shall  be  filed
  with  the court or clerk thereof within three days after delivery to the
  resident.
    (c) Service shall be complete upon filing proof of service.
    6. The  petition  shall  be  verified  by  the  person  authorized  by
  subdivision  two  of  this  section  to maintain the proceeding; or by a
  legal representative, attorney or  agent  of  such  person  pursuant  to
  subdivision  (d)  of section thirty hundred twenty of the civil practice
  law and rules.
    Every petition shall:
    (a) state the interest of the petitioner in the  premises  from  which
  removal is sought;
    (b) state the resident's interest in the premises and his relationship
  to petitioner with regard thereto;
    (c) describe the premises from which removal is sought;
    (d) state the facts upon which the special proceeding is based; and
    (e)  state  the  relief  sought. The relief may include a judgment for
  payment of all charges, expenses and other assessments due.

    7. The resident may answer in writing prior to the date  the  petition
  is to be heard or orally at the time the petition is heard. The resident
  may interpose any defense that he may have in his answer.
    8.  If  the  relief  sought  by  the  operator includes a judgment for
  payment of all charges, expenses and other  assessments  due,  then  any
  counterclaims  which  the  resident may have against the operator may be
  heard in a special proceeding maintained pursuant to the  provisions  of
  this  section,  provided,  however, that the court in its discretion may
  sever such claims and counterclaims from the special proceeding.
    9. Where triable issues of fact are raised, they shall be tried by the
  court. The court, in its discretion, at the request of one  or  both  of
  the parties may grant an adjournment for not more than ten days.
    10.  (a)  The  court  shall  direct  that  a final judgment be entered
  determining the rights of the  parties  with  regard  to  the  admission
  agreement.
    (b)  The  judgment,  including  such money as it may award for use and
  occupancy of the facility or otherwise, may be docketed in such books as
  the court maintains for recording the steps  in  a  summary  proceeding;
  unless  a  rule  of  the  court,  or  the court by order in a given case
  otherwise provides, such judgment need not be recorded  or  docketed  in
  the  books,  if  separately  maintained  in  which  are  docketed  money
  judgments in an action.
    11. (a) Upon rendering a final  judgment  for  petitioner,  the  court
  shall issue an order of removal directed to the sheriff of the county or
  to  any  constable  or  marshal  of  the  city  in which the facility is
  situated, or, if it is not situated in a city to any  constable  of  any
  town  in the county, describing the property, and commanding the officer
  to remove the resident.
    (b) The officer to whom the order of removal is directed and delivered
  shall give at least seventy-two hours notice,  in  writing  and  in  the
  manner  prescribed  in  this  section  for  the  service  of a notice of
  petition, to the person to  be  removed  and  shall  execute  the  order
  between the hours of sunrise and sunset.
    12.  (a)  If  a proceeding is brought by an operator of an adult home,
  residence for  adults  or  enriched  housing  program  pursuant  to  the
  provisions  of  this section and the reason for the proceeding is that a
  resident of such a facility has not paid  the  authorized  charges,  the
  court  shall stay the issuance of the order of removal for ten days from
  the date a judgment is rendered. The court, in its discretion, may  stay
  the  issuance of an order of removal for up to ninety days if the reason
  for the termination of the admission  agreement  and  discharge  of  the
  resident  is  that the resident failed to pay the authorized charges and
  such nonpayment was due to an interruption by a government agency in the
  delivery to such resident of any public benefits to which such  resident
  is  entitled.  During  the  pendency  of  such stay, the operator of the
  facility, as part of the provision of case management services shall  be
  required  to  assist the resident who shall cooperate with the operator,
  in obtaining  any  such  public  benefits  or  any  supplemental  public
  benefits  which  are  available  to  persons who have not received their
  regular public benefits.
    (b) If a proceeding is brought  by  an  operator  of  an  adult  home,
  residence  for  adults  or  enriched  housing  program  pursuant  to the
  provisions of this  section,  and  the  reason  for  the  proceeding  is
  repeated behavior by the resident which directly impairs the well-being,
  care  or  safety  of  the  resident  or  any  other  resident  or  which
  substantially interferes with the orderly operation of the facility, the
  court, in its discretion, upon application of the resident, may stay the

  issuance of the order of removal for up to thirty days from the  date  a
  judgment is rendered.
    (c)  If  a  proceeding  is  brought  by  an operator, administrator or
  receiver of an adult home, residence  for  adults  or  enriched  housing
  program  pursuant  to the provisions of this section, and the reason for
  the proceeding is that the facility has had  its  operating  certificate
  revoked or temporarily suspended pursuant to subdivision four of section
  four  hundred  sixty-d  of this article, or the operator has voluntarily
  surrendered  the  operating  certificate  for  the   facility   to   the
  department,  the  court,  in  its  final  judgment  entered  pursuant to
  subdivision ten of this section, shall not direct the facility to remain
  open and in operation.
    13. During the pendency of a special proceeding  brought  pursuant  to
  this  section,  the  operator  of an adult home, residence for adults or
  enriched housing program shall be required to honor  all  terms  of  the
  admission agreement until the resident is removed.
    14.  Nothing  contained herein shall be deemed to alter or abridge any
  right of a resident or operator of an adult home, residence  for  adults
  or  enriched  housing program to obtain any relief to which such persons
  are entitled in any other court of competent jurisdiction.
    15. Notwithstanding the provisions of this article, nothing  contained
  herein  shall  be  construed  to  create  a relationship of landlord and
  tenant between an operator of an adult home,  residence  for  adults  or
  enriched housing program and a resident thereof.
    16.  Notwithstanding  any  other  provision  in  this  section  to the
  contrary, the admission agreement of a resident in an  enriched  housing
  program  may  be  terminated and the resident discharged pursuant to the
  provisions of section four  hundred  sixty-one-g  of  this  article  and
  pursuant to a special proceeding as set forth in this section; provided,
  however,  where such resident has an existing lease with the landlord of
  the premises in which the program is housed, the  resident  may  not  be
  involuntarily  removed  from  the premises except in accordance with the
  provisions of such lease and applicable law and regulation.