S T A T E O F N E W Y O R K
________________________________________________________________________
5041--A
2011-2012 Regular Sessions
I N S E N A T E
May 3, 2011
___________
Introduced by Sen. YOUNG -- read twice and ordered printed, and when
printed to be committed to the Committee on Housing, Construction and
Community Development -- recommitted to the Committee on Housing,
Construction and Community Development in accordance with Senate Rule
6, sec. 8 -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the administrative code of the city of New York and the
emergency tenant protection act of nineteen seventy-four, in relation
to determining primary residency of rent regulated housing accommo-
dations
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Clause 10 of subparagraph (i) of paragraph 2 of subdivision
2 e of section 26-403 of the administrative code of the city of New York,
3 as amended by chapter 422 of the laws of 2010, is amended to read as
4 follows:
5 (10) Housing accommodations not occupied by the tenant, not including
6 subtenants or occupants, as his or her primary residence, as determined
7 by a court of competent jurisdiction. For the purposes of determining
8 primary residency, a tenant who is a victim of domestic violence, as
9 defined in section four hundred fifty-nine-a of the social services law,
10 who has left the unit because of such violence, and who asserts an
11 intent to return to the housing accommodation shall be deemed to be
12 occupying the unit as his or her primary residence. FOR PURPOSES OF
13 DETERMINING PRIMARY RESIDENCY, AS SUCH TERM IS USED IN THIS CHAPTER,
14 THERE SHALL BE A PRESUMPTION, REBUTTABLE BY THE TENANT, THAT THE TENANT
15 DOES NOT OCCUPY SUCH HOUSING ACCOMMODATION AS HIS OR HER PRIMARY RESI-
16 DENCE, WHERE:
17 (I) SUCH TENANT IS REQUIRED BY LAW TO FILE AN INCOME TAX RETURN AND
18 SUCH TENANT EITHER (A) FAILS TO FILE ONE OR MORE CITY RESIDENT INCOME
19 TAX RETURNS OR (B) SUCH TENANT FILES ONE OR MORE FEDERAL, STATE OR LOCAL
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11262-03-2
S. 5041--A 2
1 INCOME TAX RETURNS BASED UPON A RESIDENCE OTHER THAN THE HOUSING ACCOM-
2 MODATION WHICH IS SUBJECT TO THIS CHAPTER, PROVIDED, HOWEVER, THAT WHERE
3 A TENANT IS THE RECIPIENT OF A PROPERTY TAX EXEMPTION OR ANY OTHER TAX
4 BENEFIT ARISING FROM OR ATTRIBUTABLE TO THE OWNERSHIP OF SUCH OTHER
5 RESIDENCE, THE PRESUMPTION THAT THE TENANT DOES NOT OCCUPY SUCH HOUSING
6 ACCOMMODATION AS HIS OR HER PRIMARY RESIDENCE SHALL NOT BE REBUTTABLE BY
7 SUCH TENANT, OR
8 (II) ONE OR MORE VOTES ARE CAST BY SUCH TENANT DURING THEIR TENANCY IN
9 ANY ELECTION HELD IN ACCORDANCE WITH THE PROVISIONS OF THE ELECTION LAW
10 CONDUCTED IN ANY ELECTION DISTRICT OTHER THAN THE ONE DESIGNATED FOR THE
11 HOUSING ACCOMMODATION SUBJECT TO THIS CHAPTER LOCATED IN THE CITY. No
12 action or proceeding shall be commenced seeking to recover possession on
13 the ground that a housing accommodation is not occupied by the tenant as
14 his or her primary residence unless the owner or lessor shall have given
15 thirty days notice to the tenant of his or her intention to commence
16 such action or proceeding on such grounds.
17 S 2. Subparagraph (f) of paragraph 1 of subdivision a of section
18 26-504 of the administrative code of the city of New York, as amended by
19 chapter 422 of the laws of 2010, is amended to read as follows:
20 (f) not occupied by the tenant, not including subtenants or occupants,
21 as his or her primary residence, as determined by a court of competent
22 jurisdiction[, provided, however that no]. FOR PURPOSES OF DETERMINING
23 PRIMARY RESIDENCY, AS SUCH TERM IS USED IN THIS CHAPTER, THERE SHALL BE
24 A PRESUMPTION, REBUTTABLE BY THE TENANT, THAT THE TENANT DOES NOT OCCUPY
25 SUCH HOUSING ACCOMMODATION AS HIS OR HER PRIMARY RESIDENCE, WHERE:
26 (I) SUCH TENANT IS REQUIRED BY LAW TO FILE AN INCOME TAX RETURN AND
27 SUCH TENANT EITHER (A) FAILS TO FILE ONE OR MORE CITY RESIDENT INCOME
28 TAX RETURNS OR (B) SUCH TENANT FILES ONE OR MORE FEDERAL, STATE OR LOCAL
29 INCOME TAX RETURNS BASED UPON A RESIDENCE OTHER THAN THE HOUSING ACCOM-
30 MODATION WHICH IS SUBJECT TO THIS CHAPTER, PROVIDED, HOWEVER, THAT WHERE
31 A TENANT IS THE RECIPIENT OF A PROPERTY TAX EXEMPTION OR ANY OTHER TAX
32 BENEFIT ARISING FROM OR ATTRIBUTABLE TO THE OWNERSHIP OF SUCH OTHER
33 RESIDENCE, THE PRESUMPTION THAT THE TENANT DOES NOT OCCUPY SUCH HOUSING
34 ACCOMMODATION AS HIS OR HER PRIMARY RESIDENCE SHALL NOT BE REBUTTABLE BY
35 SUCH TENANT, OR
36 (II) ONE OR MORE VOTES ARE CAST BY SUCH TENANT DURING THEIR TENANCY IN
37 ANY ELECTION HELD IN ACCORDANCE WITH THE PROVISIONS OF THE ELECTION LAW
38 CONDUCTED IN ANY ELECTION DISTRICT OTHER THAN THE ONE DESIGNATED FOR THE
39 HOUSING ACCOMMODATION SUBJECT TO THIS CHAPTER LOCATED IN THE CITY. NO
40 action or proceeding shall be commenced seeking to recover possession on
41 the ground that a housing accommodation is not occupied by the tenant as
42 his or her primary residence unless the owner or lessor shall have given
43 thirty days notice to the tenant of his or her intention to commence
44 such action or proceeding on such grounds. SUCH ACTION OR PROCEEDING
45 MAY BE BROUGHT AT ANY TIME DURING THE COURSE OF A TENANT'S LEASE OR ANY
46 RENEWAL LEASE. IN THE EVENT AN ACTION OR PROCEEDING IS COMMENCED PURSU-
47 ANT TO THIS SUBPARAGRAPH PRIOR TO THE DATE THAT AN OFFER OF A RENEWAL
48 LEASE IS OTHERWISE REQUIRED TO BE MADE BY THE OWNER TO THE TENANT, THE
49 COMMENCEMENT OF SUCH ACTION OR PROCEEDING SHALL SUBSTITUTE FOR THE
50 SERVICE OF ANY OTHER NOTICE PERTAINING TO SUCH RENEWAL, INCLUDING BUT
51 NOT LIMITED TO, A NOTICE OF NON-RENEWAL OF SUCH LEASE. For the purposes
52 of determining primary residency, a tenant who is a victim of domestic
53 violence, as defined in section four hundred fifty-nine-a of the social
54 services law, who has left the unit because of such violence, and who
55 asserts an intent to return to the housing accommodation shall be deemed
56 to be occupying the unit as his or her primary residence. For the
S. 5041--A 3
1 purposes of this subparagraph where a housing accommodation is rented to
2 a not-for-profit hospital for residential use, affiliated subtenants
3 authorized to use such accommodations by such hospital shall be deemed
4 to be tenants, or
5 S 3. Paragraph 11 of subdivision a of section 5 of section 4 of chap-
6 ter 576 of the laws of 1974, constituting the emergency tenant
7 protection act of nineteen seventy-four, as amended by chapter 422 of
8 the laws of 2010, is amended to read as follows:
9 (11) housing accommodations which are not occupied by the tenant, not
10 including subtenants or occupants, as his or her primary residence, as
11 determined by a court of competent jurisdiction. FOR PURPOSES OF DETER-
12 MINING PRIMARY RESIDENCY, AS SUCH TERM IS USED IN THIS ACT, THERE SHALL
13 BE A PRESUMPTION, REBUTTABLE BY THE TENANT, THAT THE TENANT DOES NOT
14 OCCUPY SUCH HOUSING ACCOMMODATION AS HIS OR HER PRIMARY RESIDENCE,
15 WHERE:
16 (I) SUCH TENANT IS REQUIRED BY LAW TO FILE AN INCOME TAX RETURN AND
17 SUCH TENANT EITHER (A) FAILS TO FILE ONE OR MORE CITY RESIDENT INCOME
18 TAX RETURNS OR (B) SUCH TENANT FILES ONE OR MORE FEDERAL, STATE OR LOCAL
19 INCOME TAX RETURNS BASED UPON A RESIDENCE OTHER THAN THE HOUSING ACCOM-
20 MODATION WHICH IS SUBJECT TO THIS ACT, PROVIDED, HOWEVER, THAT WHERE A
21 TENANT IS THE RECIPIENT OF A PROPERTY TAX EXEMPTION OR ANY OTHER TAX
22 BENEFIT ARISING FROM OR ATTRIBUTABLE TO THE OWNERSHIP OF SUCH RESIDENCE,
23 THE PRESUMPTION THAT THE TENANT DOES NOT OCCUPY SUCH HOUSING ACCOMMO-
24 DATION AS HIS OR HER PRIMARY RESIDENCE SHALL NOT BE REBUTTABLE BY SUCH
25 TENANT, OR
26 (II) ONE OR MORE VOTES ARE CAST BY SUCH TENANT DURING THEIR TENANCY IN
27 ANY ELECTION HELD IN ACCORDANCE WITH THE PROVISIONS OF THE ELECTION LAW
28 CONDUCTED IN ANY ELECTION DISTRICT OTHER THAN THE ONE DESIGNATED FOR THE
29 HOUSING ACCOMMODATION SUBJECT TO THIS ACT LOCATED IN THE CITY, TOWN OR
30 VILLAGE. SUCH ACTION OR PROCEEDING MAY BE BROUGHT AT ANY TIME DURING
31 THE COURSE OF A TENANT'S LEASE OR ANY RENEWAL LEASE. IN THE EVENT AN
32 ACTION OR PROCEEDING IS COMMENCED PURSUANT TO THIS PARAGRAPH PRIOR TO
33 THE DATE THAT AN OFFER OF A RENEWAL LEASE IS OTHERWISE REQUIRED TO BE
34 MADE BY THE OWNER TO THE TENANT, THE COMMENCEMENT OF SUCH ACTION OR
35 PROCEEDING SHALL SUBSTITUTE FOR THE SERVICE OF ANY OTHER NOTICE PERTAIN-
36 ING TO SUCH RENEWAL, INCLUDING BUT NOT LIMITED TO, A NOTICE OF NON-RENE-
37 WAL OF SUCH LEASE. For the purposes of determining primary residency, a
38 tenant who is a victim of domestic violence, as defined in section four
39 hundred fifty-nine-a of the social services law, who has left the unit
40 because of such violence, and who asserts an intent to return to the
41 housing accommodation shall be deemed to be occupying the unit as his or
42 her primary residence. For the purposes of this paragraph, where a hous-
43 ing accommodation is rented to a not-for-profit hospital for residential
44 use, affiliated subtenants authorized to use such accommodations by such
45 hospital shall be deemed to be tenants. No action or proceeding shall be
46 commenced seeking to recover possession on the ground that a housing
47 accommodation is not occupied by the tenant as his or her primary resi-
48 dence unless the owner or lessor shall have given thirty days notice to
49 the tenant of his or her intention to commence such action or proceeding
50 on such grounds.
51 S 4. This act shall take effect immediately; provided that the amend-
52 ment to section 26-403 of the city rent and rehabilitation law made by
53 section one of this act shall remain in full force and effect only so
54 long as the public emergency requiring the regulation and control of
55 residential rents and evictions continues, as provided in subdivision 3
56 of section 1 of the local emergency housing rent control act; and
S. 5041--A 4
1 provided further that the amendment to section 26-504 of the rent
2 stabilization law of nineteen hundred sixty-nine made by section two of
3 this act shall expire on the same date as such law expires and shall not
4 affect the expiration of such law as provided under section 26-520 of
5 such law; and provided further that the amendment to section 5 of the
6 emergency tenant protection act of nineteen seventy-four made by section
7 three of this act shall expire on the same date as such act expires and
8 shall not affect the expiration of such act as provided in section 17 of
9 chapter 576 of the laws of 1974, as amended.