S T A T E O F N E W Y O R K
________________________________________________________________________
S. 1801 A. 1940
2011-2012 Regular Sessions
S E N A T E - A S S E M B L Y
January 12, 2011
___________
IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print-
ed, and when printed to be committed to the Committee on Local Govern-
ment
IN ASSEMBLY -- Introduced by M. of A. THIELE -- read once and referred
to the Committee on Local Governments
AN ACT to amend the town law, in relation to authorizing the town of
Brookhaven to establish a housing and community court
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The town law is amended by adding a new article 10-A to
read as follows:
ARTICLE 10-A
BROOKHAVEN HOUSING AND
COMMUNITY COURT
SECTION 160. ESTABLISHMENT.
161. ADMINISTRATIVE LAW JUDGES.
162. JURISDICTION TO IMPOSE CIVIL PENALTIES.
163. SUMMONS.
164. COMMENCEMENT OF PROCEEDINGS; DEFAULT JUDGMENTS.
165. JUDICIAL ENFORCEMENT.
166. RESTRICTION ON COLLATERAL USE.
167. APPEALS.
S 160. ESTABLISHMENT. THE TOWN BOARD OF THE TOWN OF BROOKHAVEN MAY BY
ORDINANCE OR LOCAL LAW ESTABLISH A HOUSING AND COMMUNITY COURT TO ASSIST
THE DISTRICT COURT IN THE DISPOSITION OF ALL VIOLATIONS OF TOWN OF
BROOKHAVEN HOUSING LAWS, CODES AND ORDINANCES.
S 161. ADMINISTRATIVE LAW JUDGES. 1. THE TOWN BOARD OF THE TOWN OF
BROOKHAVEN SHALL APPOINT ADMINISTRATIVE LAW JUDGES WHO SHALL BE ATTOR-
NEYS ADMITTED TO PRACTICE IN THIS STATE FOR NOT LESS THAN THREE YEARS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03836-01-1
S. 1801 2 A. 1940
AND SHALL HAVE SUCH OTHER QUALIFICATIONS AS MAY BE PRESCRIBED BY SUCH
TOWN BOARD.
2. NO ADMINISTRATIVE LAW JUDGE SHALL PARTICIPATE IN ANY PROCEEDING TO
WHICH HE OR SHE IS A PARTY, IN WHICH HE OR SHE HAS BEEN AN ATTORNEY,
COUNSEL OR REPRESENTATIVE, IF HE OR SHE IS RELATED BY CONSANGUINITY OR
AFFINITY TO ANY PARTY TO THE PROCEEDING WITHIN THE SIXTH DEGREE OR WHERE
SUCH PARTICIPATION IS OTHERWISE PROHIBITED BY LAW. ADMINISTRATIVE LAW
JUDGES SHALL ENSURE THAT ALL HEARINGS ARE CONDUCTED IN A FAIR AND IMPAR-
TIAL MANNER.
3. EXCEPT AS OTHERWISE PROVIDED BY LAW, IN THE CONDUCT OF AN ADJUDI-
CATION, AN ADMINISTRATIVE LAW JUDGE MAY:
A. HOLD CONFERENCES FOR THE SETTLEMENT OR SIMPLIFICATION OF ISSUES;
B. ADMINISTER OATHS AND AFFIRMATIONS, EXAMINE WITNESSES, RULE UPON
OFFERS OF PROOF, RECEIVE EVIDENCE, AND OVERSEE, REGULATE, ORDER AND
ENFORCE SUCH DISCOVERY AS IS APPROPRIATE UNDER THE CIRCUMSTANCES;
C. UPON MOTION OF ANY PARTY, OR UPON THE ADMINISTRATIVE LAW JUDGE'S
OWN MOTION UPON CONSENT OF THE DEFENDANT, SUBPOENA THE ATTENDANCE OF
WITNESSES AND THE PRODUCTION OF BOOKS, RECORDS OR OTHER INFORMATION;
D. REGULATE THE COURSE OF THE HEARING;
E. RULE ON PROCEDURAL REQUESTS OR SIMILAR MATTERS;
F. MAKE FINAL FINDINGS OF FACT AND FINAL DECISIONS, DETERMINATIONS OR
ORDERS;
G. WHERE THE BROOKHAVEN HOUSING AND COMMUNITY COURT IS AUTHORIZED TO
RENDER A FINAL DECISION, DETERMINATION OR ORDER IMPOSING CIVIL PENAL-
TIES, IMPOSE SUCH CIVIL PENALTIES; AND
H. TAKE ANY OTHER ACTION AUTHORIZED BY LAW.
4. UNLESS INCONSISTENT WITH THIS ARTICLE, ALL HEARINGS SHALL SUBSTAN-
TIALLY COMPLY WITH THE REQUIREMENTS OF ARTICLE THREE OF THE STATE ADMIN-
ISTRATIVE PROCEDURE ACT.
5. UNLESS OTHERWISE AUTHORIZED BY LAW AND EXCEPT AS OTHERWISE PROVIDED
IN SUBDIVISION SIX OF THIS SECTION, NO ADMINISTRATIVE LAW JUDGE SHALL
COMMUNICATE IN CONNECTION WITH ANY ISSUE THAT RELATES IN ANY WAY TO THE
MERITS OF A PROCEEDING PENDING BEFORE SUCH JUDGE WITH ANY PERSON EXCEPT
UPON NOTICE AND OPPORTUNITY FOR ALL PARTIES TO PARTICIPATE.
6. AN ADMINISTRATIVE LAW JUDGE MAY CONSULT, ON QUESTIONS OF LAW AND
MINISTERIAL MATTERS, WITH OTHER ADMINISTRATIVE LAW JUDGES AND THE
SUPPORT STAFF OF SUCH COURT, PROVIDED THAT SUCH ADMINISTRATIVE LAW JUDG-
ES OR SUPPORT STAFF HAVE NOT ENGAGED IN FUNCTIONS IN CONNECTION WITH THE
ADJUDICATORY PROCEEDING UNDER CONSIDERATION OR A FACTUALLY RELATED
PROCEEDING.
S 162. JURISDICTION TO IMPOSE CIVIL PENALTIES. 1. THE BROOKHAVEN
HOUSING AND COMMUNITY COURT MAY IMPOSE ANY CIVIL PENALTY FOR THE
VIOLATION OF A TOWN LAW, CODE OR ORDINANCE THAT THE DISTRICT COURT IS
AUTHORIZED TO IMPOSE. NOTWITHSTANDING ANY PROVISION OF LAW TO THE
CONTRARY, ANY CIVIL PENALTY IMPOSED BY SUCH COURT UPON A PERSON WHO HAS
AN INTEREST IN REAL PROPERTY IN THE TOWN OF BROOKHAVEN, SHALL BE A LIEN
UPON SUCH REAL PROPERTY IF SUCH PENALTY IS NINETY DAYS OR MORE IN
ARREARS. ALL SUCH ARREARS SHALL BE DEEMED TO BE A REAL PROPERTY TAX UPON
THE REAL PROPERTY AND MAY BE COLLECTED AS SUCH PURSUANT TO THE REAL
PROPERTY TAX LAW.
2. NO PERSON APPEARING BEFORE THE BROOKHAVEN HOUSING AND COMMUNITY
COURT SHALL BE SENTENCED TO A TERM OF IMPRISONMENT UPON BEING FOUND
GUILTY OF ANY CHARGE, NOR SHALL AN ADMINISTRATIVE LAW JUDGE ORDER THE
ARREST OR DETENTION OF ANY PERSON, NOR SHALL AN ADMINISTRATIVE LAW JUDGE
DEPRIVE ANY PERSON OF THE RIGHT TO COUNSEL.
S. 1801 3 A. 1940
S 163. SUMMONS. THE BROOKHAVEN HOUSING AND COMMUNITY COURT SHALL HAVE
THE SAME POWERS AND DUTIES RELATING TO A SUMMONS AS ARE PROVIDED TO
DISTRICT COURTS PURSUANT TO ARTICLE FOUR OF THE UNIFORM DISTRICT COURT
ACT, ARTICLE THREE OF THE CIVIL PRACTICE LAW AND RULES, ARTICLE THREE OF
THE BUSINESS CORPORATION LAW AND ARTICLE THREE OF THE LIMITED LIABILITY
COMPANY LAW. IN ADDITION,
1. SERVICE OF A SUMMONS MAY BE MADE BY DELIVERING SUCH SUMMONS TO A
PERSON EMPLOYED BY THE RESPONDENT:
A. TO WORK ON THE PREMISES THE OCCUPANCY OF WHICH CAUSED THE ALLEGED
VIOLATION OF A TOWN OF BROOKHAVEN LAW, CODE OR ORDINANCE,
B. AT THE PREMISES AT WHICH THE RESPONDENT ACTUALLY CONDUCTS THE BUSI-
NESS THE OPERATION OF WHICH GAVE RISE TO SUCH ALLEGED VIOLATION, OR
C. AT THE SITE OF THE WORK AT WHICH SUCH AN ALLEGED VIOLATION
OCCURRED; AND
2. SERVICE OF A SUMMONS MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO THE RESPONDENT. IF AFTER TWENTY-ONE DAYS SUCH MAILING HAS
NOT BEEN RETURNED AS UNDELIVERABLE, THE RESPONDENT SHALL BE PRESUMED TO
HAVE BEEN SERVED SUCH SUMMONS.
S 164. COMMENCEMENT OF PROCEEDINGS; DEFAULT JUDGMENTS. 1. THE BROOKHA-
VEN HOUSING AND COMMUNITY COURT SHALL CONDUCT THE PROCEEDINGS AUTHORIZED
BY LOCAL LAW IN ACCORDANCE WITH THIS SECTION.
2. SUCH PROCEEDINGS SHALL BE COMMENCED BY THE SERVICE OF A SUMMONS.
THE SUMMONS OR COPY THEREOF WHEN FILLED IN AND SERVED SHALL CONSTITUTE
NOTICE OF THE VIOLATION CHARGED, AND, IF SWORN TO OR AFFIRMED, SHALL BE
PRIMA FACIE EVIDENCE OF THE FACTS CONTAINED THEREIN. THE SUMMONS WHEN
SWORN TO OR AFFIRMED SHALL CONSTITUTE THE TESTIMONY OF THE SIGNATOR AND,
WHEN FILED WITH THE BROOKHAVEN HOUSING AND COMMUNITY COURT SHALL BE
ADMITTED INTO EVIDENCE AS SUCH TESTIMONY AT ANY HEARING ON THE VIOLATION
CHARGED. EVERY SUCH SUMMONS SHALL STATE WHETHER THE FACTS SET FORTH
THEREIN ARE KNOWN PERSONALLY TO THE SIGNATOR AND IF THE FACTS ARE NOT SO
KNOWN THE SUMMONS SHALL SPECIFICALLY IDENTIFY THE SOURCE OF KNOWLEDGE OF
SUCH FACTS. IF THE RESPONDENT DISPUTES THE FACTS STATED IN THE SUMMONS,
THE ADMINISTRATIVE LAW JUDGE, WHERE APPROPRIATE MAY REJECT THE
SIGNATOR'S FACTS, ACCEPT FACTS THE RESPONDENT OFFERS, OR DIRECT THE
SIGNATOR'S APPEARANCE.
3. A. THE SUMMONS SHALL CONTAIN INFORMATION ADVISING THE PERSON
CHARGED OF THE MANNER AND THE TIME IN WHICH SUCH PERSON MAY EITHER ADMIT
OR DENY THE VIOLATION CHARGED IN THE SUMMONS. SUCH SUMMONS SHALL ALSO
CONTAIN A WARNING TO ADVISE THE PERSON CHARGED THAT FAILURE TO PLEAD IN
THE MANNER AND TIME STATED IN THE SUMMONS MAY RESULT IN A DEFAULT DECI-
SION AND ORDER BEING ENTERED AGAINST SUCH PERSON. THE ORIGINAL OR A COPY
OF THE SUMMONS SHALL BE FILED AND RETAINED BY THE BROOKHAVEN HOUSING AND
COMMUNITY COURT AND SHALL BE DEEMED A RECORD KEPT IN THE ORDINARY COURSE
OF BUSINESS.
B. EVERY SUMMONS SHALL IDENTIFY THE PROVISION OF LAW CHARGED AND SHALL
SET FORTH THE FACTUAL BASIS FOR THE VIOLATION. WHERE A SUMMONS DOES NOT
CONTAIN THIS INFORMATION, IT SHALL BE DISMISSED AT THE REQUEST OF THE
RESPONDENT OR THE ADMINISTRATIVE LAW JUDGE MAY DISMISS THE SUMMONS UPON
HIS OR HER OWN MOTION.
4. WHERE A RESPONDENT HAS FAILED TO PLEAD WITHIN THE TIME ALLOWED BY
CONTROLLING LAW OR, IF THERE IS NO SUCH CONTROLLING LAW, BY THE RULES OF
THE BROOKHAVEN HOUSING AND COMMUNITY COURT, OR HAS FAILED TO APPEAR ON A
DESIGNATED HEARING DATE OR A SUBSEQUENT DATE FOLLOWING AN ADJOURNMENT,
SUCH FAILURE TO PLEAD OR APPEAR SHALL BE DEEMED, FOR ALL PURPOSES, TO BE
AN ADMISSION OF LIABILITY AND SHALL BE GROUNDS FOR RENDERING A DEFAULT
DECISION AND ORDER IMPOSING A PENALTY UP TO THE MAXIMUM AMOUNT
S. 1801 4 A. 1940
PRESCRIBED UNDER LAW FOR THE VIOLATION CHARGED. A DEFAULT DECISION AND
ORDER MAY BE OPENED WITHIN ONE YEAR OF ITS ENTRY UPON WRITTEN APPLICA-
TION SHOWING EXCUSABLE DEFAULT AND A MERITORIOUS DEFENSE TO THE CHARGE;
A DEFAULT DECISION AND ORDER MAY THEREAFTER BE OPENED ONLY UPON WRITTEN
APPLICATION SHOWING EXCUSABLE DEFAULT, A MERITORIOUS DEFENSE TO THE
CHARGE, AND GOOD CAUSE FOR THE DELAY.
5. ANY FINAL ORDER OF THE BROOKHAVEN HOUSING AND COMMUNITY COURT
IMPOSING A CIVIL PENALTY, WHETHER THE ADJUDICATION WAS HAD BY HEARING OR
UPON DEFAULT OR OTHERWISE, SHALL CONSTITUTE A JUDGMENT RENDERED BY SUCH
COURT AGAINST THE RESPONDENT WHICH MAY BE ENTERED IN THE DISTRICT COURT
OR ANY OTHER PLACE PROVIDED FOR THE ENTRY OF CIVIL JUDGMENTS WITHIN THE
STATE, AND MAY BE ENFORCED AGAINST THE RESPONDENT AND HIS, HER OR ITS
PROPERTY WITHOUT COURT PROCEEDINGS IN THE SAME MANNER AS THE ENFORCEMENT
OF MONEY JUDGMENTS ENTERED IN CIVIL ACTIONS, PROVIDED FURTHER, ANY
ARREARS MAY BE COLLECTED AS REAL PROPERTY TAXES PURSUANT TO SUBDIVISION
ONE OF SECTION ONE HUNDRED SIXTY-TWO OF THIS ARTICLE; PROVIDED HOWEVER
THAT NO SUCH JUDGMENT SHALL BE ENTERED WHICH EXCEEDS THE JURISDICTION OF
SUCH DISTRICT COURT OR OTHER COURT.
6. NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION, BEFORE A
JUDGMENT BASED UPON A DEFAULT MAY BE SO ENTERED THE BROOKHAVEN HOUSING
AND COMMUNITY COURT SHALL HAVE NOTIFIED THE RESPONDENT BY FIRST CLASS
MAIL IN SUCH FORM:
A. OF THE DEFAULT DECISION AND ORDER AND THE PENALTY IMPOSED;
B. THAT A JUDGMENT MAY BE ENTERED IN THE DISTRICT COURT OR ANY OTHER
PLACE PROVIDED FOR THE ENTRY OF CIVIL JUDGMENTS WITHIN THE STATE OF NEW
YORK; AND
C. THAT ENTRY OF SUCH JUDGMENT MAY BE AVOIDED BY REQUESTING A STAY OF
DEFAULT FOR GOOD CAUSE SHOWN AND EITHER REQUESTING A HEARING OR ENTERING
A PLEA WITHIN THIRTY DAYS OF THE MAILING OF SUCH NOTICE.
S 165. JUDICIAL ENFORCEMENT. ANY ORDER, SUBPOENA, OR ANY FINAL DECI-
SION OR DETERMINATION RENDERED BY THE BROOKHAVEN HOUSING AND COMMUNITY
COURT SHALL BE SUBJECT TO ENFORCEMENT BY THE JUDICIARY IN AN ACTION OR
PROCEEDING COMMENCED IN A COURT OF COMPETENT JURISDICTION BY THE
PREVAILING PARTY, INCLUDING THE TOWN OF BROOKHAVEN.
S 166. RESTRICTION ON COLLATERAL USE. DECISIONS, DETERMINATIONS AND
ORDERS ISSUED BY THE BROOKHAVEN HOUSING AND COMMUNITY COURT SHALL NOT BE
CITED, AND SHALL NOT BE CONSIDERED PRECEDENT NOR BE GIVEN ANY FORCE OR
EFFECT IN ANY CRIMINAL PROCEEDING.
S 167. APPEALS. EVERY APPEAL OF A FINAL DETERMINATION OF THE BROOKHA-
VEN HOUSING AND COMMUNITY COURT SHALL BE HEARD IN THE APPELLATE TERM OF
SUPREME COURT IN THE SECOND DEPARTMENT. SUCH APPEALS SHALL BE TAKEN BY
FILING A NOTICE OF APPEAL WITH SUCH COURT WITHIN THIRTY DAYS OF THE
ENTRY OF THE DECISION, DETERMINATION, OR ORDER FROM WHICH THE APPEAL IS
BEING TAKEN.
S 2. This act shall take effect on the thirtieth day after it shall
have become a law.