Amd Title, 2, 3 & 4, Chap of 2020 (as proposed in S.8417 & A.10492); amd 91, Pub Serv L; amd 5, Chap of 2020
(as proposed in S.8113-A & A.10521); amd 9-x, Bank L (as proposed in S.8243-C & A.10351-B); amd 180.65, CP L
(as proposed in S.8414 & A.10493)
Relates to expenditures and temporary transfers of reserve funds for expenses related to a state disaster emergency (Part A); relates to issuing a moratorium on utility termination of services during periods of pandemics and/or state of emergencies (Part B); relates to the forbearance of residential mortgage payments for qualified mortgagors for a period of up to 180 days with the option to extend for an additional 180 days (Part C); relates to hearings conducted on a felony complaint during a state disaster emergency (Part D).
STATE OF NEW YORK
________________________________________________________________________
8428
IN SENATE
May 28, 2020
___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend a chapter of the laws of 2020 amending the local finance
law relating to bond anticipation notes issued in calendar years 2015
through 2021, as proposed in legislative bills numbers S. 8417 and A.
10492, in relation to expenditures and temporary transfer of reserve
funds for expenses related to state disaster emergency declared pursu-
ant to executive order 202 of 2020 and authorizing the extension of
repayment of inter-fund advances made for expenses related to state
disaster emergency declared pursuant to executive order 202 of 2020
(Part A); to amend the public service law, in relation to issuing a
moratorium on utility termination of services during periods of
pandemics and/or state of emergencies; and to amend a chapter of the
laws of 2020 amending the public service law, relating to issuing a
moratorium on utility termination of services during periods of
pandemics and/or state of emergencies, as proposed in legislative
bills numbers S.8113-A and A.10521, in relation to the effectiveness
thereof (Part B); to amend the banking law, in relation to the
forbearance of residential mortgage payments (Part C); and to amend
the criminal procedure law, in relation to hearings conducted on a
felony complaint during a state disaster emergency (Part D)
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act enacts into law legislation providing for impor-
2 tant provisions relating to a state disaster emergency. Each component
3 is wholly contained within a Part identified as Parts A through D. The
4 effective date for each particular provision contained within such Part
5 is set forth in the last section of such Part. Any provision in any
6 section contained within a Part, including the effective date of the
7 Part, which makes reference to a section "of this act", when used in
8 connection with that particular component, shall be deemed to mean and
9 refer to the corresponding section of the Part in which it is found.
10 Section three of this act sets forth the general effective date of this
11 act.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD16563-02-0
S. 8428 2
1 PART A
2 Section 1. The title of a chapter of the laws of 2020 amending the
3 local finance law relating to bond anticipation notes issued in calendar
4 years 2015 through 2021, as proposed in legislative bills number S. 8417
5 and A. 10492, is amended to read as follows:
6 to amend the local finance law, in relation to bond anticipation notes
7 issued in calendar years 2015 through 2021; to authorize the expenditure
8 and temporary transfer of reserve funds for expenses related to [COVID-
9 19] the state disaster emergency declared pursuant to executive order
10 202 of 2020; and to authorize the extension of repayment of inter-fund
11 advances made for expenses related to [COVID-19] the state disaster
12 emergency declared pursuant to executive order 202 of 2020
13 § 2. Section 2 of a chapter of the laws of 2020 amending the local
14 finance law relating to bond anticipation notes issued in calendar years
15 2015 through 2021, as proposed in legislative bills numbers S. 8417 and
16 A. 10492, is amended to read as follows:
17 § 2. Notwithstanding any provision of sections 6-c or 6-g of the
18 general municipal law or section 3651 of the education law to the
19 contrary, the governing board of a town, village, county, city, water
20 improvement district, sewer improvement district, fire district or
21 school district, by resolution which shall not be subject to referendum
22 requirements, may authorize expenditures from capital reserve funds for
23 capital costs attributable to the [COVID-19 pandemic] state disaster
24 emergency declared pursuant to executive order 202 of 2020.
25 § 3. Section 3 of a chapter of the laws of 2020 amending the local
26 finance law relating to bond anticipation notes issued in calendar years
27 2015 through 2021, as proposed in legislative bills numbers S. 8417 and
28 A. 10492, is amended to read as follows:
29 § 3. Notwithstanding any provision of the general municipal law, the
30 town law or the education law to the contrary, the governing board of a
31 town, village, county, city, water improvement district, sewer improve-
32 ment district, fire district or school district, by resolution which
33 shall not be subject to referendum requirements, if any, may authorize
34 the temporary transfer of moneys from reserve funds to pay for operating
35 costs attributable to the state disaster emergency declared pursuant to
36 executive order 202 of 2020 or other costs attributable to the [COVID-19
37 pandemic] state disaster emergency declared pursuant to executive order
38 202 of 2020, provided, that the reserve fund from which the funds were
39 temporarily transferred shall be reimbursed from the fund to which the
40 transfer was made over a period of not more than five fiscal years,
41 starting with the fiscal year following the transfer. At least twenty
42 percent of the moneys temporarily transferred shall be reimbursed each
43 fiscal year. Such reimbursement shall include an additional amount
44 reasonably estimated to be the amount that would have been earned on the
45 investment of the transferred moneys had they been retained in the capi-
46 tal reserve fund.
47 § 4. Section 4 of a chapter of the laws of 2020 amending the local
48 finance law relating to bond anticipation notes issued in calendar years
49 2015 through 2021, as proposed in legislative bills numbers S. 8417 and
50 A. 10492, is amended to read as follows:
51 § 4. Notwithstanding the provisions of subdivision 3 of section 9-a of
52 the general municipal law, for inter-fund advances made pursuant to such
53 subdivision for costs attributable to the [COVID-19 pandemic] state
54 disaster emergency declared pursuant to executive order 202 of 2020,
55 repayment of moneys to the fund from which they were advanced shall be
S. 8428 3
1 made by close of the fiscal year next succeeding the fiscal year in
2 which such advance was made.
3 § 5. This act shall take effect on the same date and in the same
4 manner as a chapter of the laws of 2020 amending the local finance law
5 relating to bond anticipation notes issued in calendar years 2015
6 through 2021, as proposed in legislative bills numbers S. 8417 and A.
7 10492, takes effect.
8 PART B
9 Section 1. Subdivisions 9, 10 and 12 of section 91 of the public
10 service law, as added by a chapter of the laws of 2020 amending the
11 public service law, relating to issuing a moratorium on utility termi-
12 nation of services during periods of pandemics and/or state of emergen-
13 cies, as proposed in legislative bills numbers S.8113-A and A.10521, are
14 amended to read as follows:
15 9. No telephone corporation shall terminate or disconnect a residen-
16 tial service customer for the non-payment of an overdue charge for the
17 duration of the state disaster emergency declared pursuant to executive
18 order two hundred two of two thousand twenty (hereinafter "the COVID-19
19 state of emergency"). Telephone corporations shall have a duty to
20 restore service, to the extent not already required under this chapter,
21 [to] at the request of any residential customer within forty-eight hours
22 if such service has been terminated during the pendency of the COVID-19
23 state of emergency and disconnection of such service was due to non-pay-
24 ment of an overdue charge.
25 10. [After] For a period of one hundred eighty days after the COVID-19
26 state of emergency is lifted or expires, no telephone corporation shall
27 terminate or disconnect the service of a residential customer account
28 because of defaulted deferred payment agreements or arrears then owed to
29 the telephone corporation when such customer has experienced a change in
30 financial circumstances due to the COVID-19 state of emergency, as
31 defined by the department. The telephone corporation shall provide such
32 residential customer with the right to enter into, or restructure, a
33 deferred payment agreement without the requirement of a down payment,
34 late fees, or penalties[, as such is provided for in article two of this
35 chapter].
36 12. Implementation of the provisions of this section shall not prohib-
37 it a telephone corporation from recovering lost or deferred revenues
38 after the lifting or expiration of the COVID-19 state of emergency,
39 pursuant to such means for recovery as are provided for in this chapter,
40 and by means not inconsistent with any of the provisions of this
41 article. Nothing in this section shall prohibit a telephone corporation
42 from disconnecting service at the request of a customer. Nothing in this
43 section shall prohibit a telephone corporation from disconnecting
44 service when it is necessary to protect the health and safety of custom-
45 ers and the public.
46 § 2. Section 5 of a chapter of the laws of 2020 amending the public
47 service law, relating to issuing a moratorium on utility termination of
48 services during periods of pandemics and/or state of emergencies, as
49 proposed in legislative bills numbers S.8113-A and A.10521, is amended
50 to read as follows:
51 § 5. This act shall take effect immediately and shall expire March 31,
52 2021 when upon such date the provisions of this act shall be deemed
53 repealed.
S. 8428 4
1 § 3. This act shall take effect on the same date and in the same
2 manner as a chapter of the laws of 2020 amending the public service law,
3 relating to issuing a moratorium on utility termination of services
4 during periods of pandemics and/or state of emergencies, as proposed in
5 legislative bills numbers S.8113-A and A.10521, takes effect; provided
6 however, that the amendments to subdivisions 9, 10 and 12 of section 91
7 of the public service law made by section one of this act shall not
8 affect the repeal of such subdivisions and shall be deemed to be
9 repealed therewith.
10 PART C
11 Section 1. Section 9-x of the banking law, as added by a chapter of
12 the laws of 2020, amending the banking law relating to the forbearance
13 of residential mortgage payments, as proposed in legislative bills
14 numbers S. 8243-C and A. 10351-B, is amended to read as follows:
15 § 9-x. Mortgage forbearance. 1. As used in this section, the following
16 terms shall have the following meanings:
17 (a) "Covered period" means March 7, 2020 until the date on which none
18 of the provisions that closed or otherwise restricted public or private
19 businesses or places of public accommodation, or required postponement
20 or cancellation of all non-essential gatherings of individuals of any
21 size for any reason in Executive Orders 202.3, 202.4, 202.5, 202.6,
22 202.7, 202.8, 202.10, 202.11, 202.13 or 202.14, as extended by Executive
23 Orders 202.28 and 202.31 and as further extended by any future Executive
24 Order, issued in response to the COVID-19 pandemic continue to apply in
25 the county of the qualified mortgagor's residence;
26 (b) "qualified mortgagor" means an individual [who resides in New
27 York] (i) whose [principal dwelling] primary residence is located in New
28 York and is encumbered by a home loan pursuant to paragraph (a) of
29 subdivision six of section thirteen hundred four of the real property
30 actions and proceedings law or whose [principal dwelling] primary resi-
31 dence is located in New York and is a co-operative unit whose shares are
32 encumbered by any loan otherwise meeting the requirements of a home loan
33 under paragraph (a) of subdivision six of section thirteen hundred four
34 of the real property actions and proceedings law, from or serviced by a
35 regulated institution; and (ii) who demonstrates financial hardship as a
36 result of COVID-19 during the covered period;
37 (c) "regulated institution" means any New York regulated banking
38 organization as defined in this chapter and any New York regulated mort-
39 gage servicer entity subject to supervision by the department; and
40 (d) "trial period plan" means an agreement whereby the mortgagor is
41 required to make trial payments in full and on-time in order to be
42 considered for a permanent loan modification.
43 2. Notwithstanding any other provision of law, New York regulated
44 institutions shall:
45 (a) make applications for forbearance of any payment due on a residen-
46 tial mortgage of a property located in New York widely available to any
47 qualified mortgagor who, during the covered period, is in arrears or on
48 a trial period plan, or who has applied for loss mitigation [and demon-
49 strates financial hardship during the covered period]; and
50 (b) grant such forbearance of all monthly payments due with respect to
51 the mortgage secured by the qualified mortgagor's primary residence in
52 New York for a period of up to one hundred eighty days to any such qual-
53 ified mortgagor [who is in arrears or on a trial period plan, or who has
54 applied for loss mitigation and demonstrates financial hardship], with
S. 8428 5
1 the option to extend the forbearance of such monthly payments for up to
2 an additional one hundred eighty days provided that this extension is
3 subject to the mortgagor demonstrating continued financial hardship. If
4 any qualified mortgagor has already received a forbearance pursuant to
5 executive order 202.9 of two thousand twenty, the time of such forbear-
6 ance shall be considered as part of the requirement of this section to
7 provide a forbearance of up to one hundred eighty days, and any exten-
8 sion thereof pursuant to this section.
9 (c) Such forbearance may be backdated to March seventh, two thousand
10 twenty, provided that the maximum length of the forbearance may be no
11 longer than one hundred eighty days and any extension thereof pursuant
12 to this section.
13 3. Notwithstanding any other provision of law, any mortgage forbear-
14 ance granted by a regulated institution pursuant to executive order
15 number 202.9 of two thousand twenty, this section, or [any other law,
16 rule or regulation to the] 3 NYCRR Part 119 to a qualified mortgagor as
17 a result of financial hardship [during the covered period] shall be
18 subject to the following provisions:
19 (a) the mortgagor shall have the option to extend the term of the loan
20 for the length of the period of forbearance. The regulated institution
21 shall [waive interest on the principal for the term of the forbearance
22 and waive any late fees accumulated as a result of the forbearance] not
23 charge additional interest or any late fees or penalties on the forborne
24 payment; or
25 (b) the mortgagor shall have the option to have the arrears accumu-
26 lated during the forbearance period payable on a monthly basis for the
27 remaining term of the loan without being subject to penalties or late
28 fees incurred as a result of the forbearance; or
29 (c) the mortgagor shall have the option to negotiate a loan modifica-
30 tion or any other option that meets the changed circumstances of the
31 qualified mortgagor; or
32 (d) if [the mortgagor is unable to make mortgage payments due to mort-
33 gagors' demonstrated hardship and] the mortgagor and regulated institu-
34 tion cannot reasonably agree on a mutually acceptable loan modification,
35 the [mortgagor] regulated institution shall [have the option] offer to
36 defer arrears accumulated during the forbearance period as a non-inter-
37 est bearing balloon [payment] loan payable at the maturity of the loan
38 [consistent with the safety and soundness of such regulated institu-
39 tion], or at the time the loan is satisfied through a refinance or sale
40 of the property. Any late fees accumulated as a result of the forbear-
41 ance shall be waived.
42 [(d)] (e) The exercising of options provided for in paragraph (a), (b)
43 [or], (c) or (d) of this subdivision by a qualified mortgagor shall not
44 be reported negatively to any credit bureau by any regulated institu-
45 tion.
46 4. Notwithstanding any other provision of law, adherence with this
47 section shall be a condition precedent to commencing a foreclosure
48 action stemming from missed payments which would have otherwise been
49 subject to this section. A defendant may raise the violation of this
50 section as a defense to a foreclosure action commenced on the defend-
51 ant's property when such action is based on missed payments that would
52 have otherwise been subject to this section.
53 5. Notwithstanding anything to the contrary in this section, this
54 section shall not apply to, and does not affect any mortgage loans made,
55 insured, purchased or securitized by any agency or instrumentality of
56 the United States, any government sponsored enterprise, or a federal
S. 8428 6
1 home loan bank, or a corporate governmental agency of the state consti-
2 tuted as a political subdivision and public benefit corporation, or the
3 rights and obligations of any lender, issuer, servicer or trustee of
4 such obligations, including servicers for the Government National Mort-
5 gage Association.
6 6. Notwithstanding any other provision of law or of this section, the
7 obligation to grant the forbearance relief required by this section
8 shall be subject to the regulated institution having sufficient capital
9 and liquidity to meet its obligations and to operate in a safe and sound
10 manner. Any regulated institution that determines that it is not able to
11 offer relief pursuant to this section to any qualified mortgagor must
12 notify the department within five business days of making such determi-
13 nation. Any such notice filed with the department shall include informa-
14 tion about the qualified mortgagor, the reason the regulated institution
15 determined that it was unable to offer any relief pursuant to this
16 section, information about the regulated institution's financial condi-
17 tion supporting the regulated institution's determination, and any other
18 information required by the department. At the same time that the regu-
19 lated institution provides notice to the department, it shall advise the
20 qualified mortgagor that the application for relief was denied and
21 provide a statement that the applicant may file a complaint with the New
22 York state department of financial services at 1-800-342-3736 or
23 http://www.dfs.ny.gov if the applicant believes the application was
24 wrongly denied.
25 § 2. This act shall take effect on the same date and in the same
26 manner as a chapter of the laws of 2020, amending the banking law relat-
27 ing to the forbearance of residential mortgage payments, as proposed in
28 legislative bills numbers S. 8243-C and A. 10351-B, takes effect.
29 PART D
30 Section 1. Section 180.65 of the criminal procedure law, as added by a
31 chapter of the laws of 2020, amending the criminal procedure law relat-
32 ing to conducting hearings on a felony complaint during a state disaster
33 emergency, as proposed in legislative bills numbers S. 8414 and A.
34 10493, is amended to read as follows:
35 § 180.65 Hearing upon felony complaint; emergency provision during
36 disaster emergency.
37 During the period of the COVID-19 state disaster emergency, as
38 declared pursuant to executive order number two hundred two of two thou-
39 sand twenty and extensions thereof and article two-B of the executive
40 law, the following additional provisions shall apply to the conduct of a
41 hearing on a felony complaint pursuant to this article:
42 1. The appearance of any party and any witness at such hearing may be
43 by electronic appearance through an independent audio-visual system, as
44 such terms are defined in section 182.10 of this title, where the court
45 finds upon its own motion after hearing from the parties and any such
46 witness, either in person or by electronic appearance, that due to the
47 person's circumstances and such disaster emergency a personal appearance
48 by such party or witness would be an unreasonable hardship to such
49 person or witness or create an unreasonable health risk to the public,
50 court staff or anyone else involved in the proceeding.
51 2. At any such hearing on the felony complaint, the judge must be able
52 to hear and see the image of each witness clearly [though] through the
53 independent audio-visual system and such sound and visual image shall be
54 similar to the sound and image the judge would hear and see if the
S. 8428 7
1 witness were present together with the judge testifying in the court-
2 room. Documents, photographs and the like offered at the hearing may be
3 exchanged among the parties by electronic means. A stenographic tran-
4 scription or appropriate audio recording of the proceedings shall be
5 maintained, and the live testimony received by electronic appearance,
6 and other electronic appearances where practicable, shall be video
7 recorded by the court, and a copy provided to the people and the
8 defense.
9 3. The authority for an electronic appearance pursuant to this section
10 shall be considered sufficient means to enable the court to conduct a
11 hearing on a felony complaint within the meaning of section 180.80 of
12 this article.
13 § 2. This act shall take effect on the same date and in the same
14 manner as a chapter of the laws of 2020, amending the criminal procedure
15 law relating to conducting hearings on a felony complaint during a state
16 disaster emergency, as proposed in legislative bills numbers S. 8414 and
17 A. 10493, takes effect, provided, however, that the amendments made to
18 section 180.65 of the criminal procedure law made by section one of this
19 act shall not affect the repeal of such section and shall be deemed
20 repealed therewith.
21 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
22 sion, section or part of this act shall be adjudged by any court of
23 competent jurisdiction to be invalid, such judgment shall not affect,
24 impair, or invalidate the remainder thereof, but shall be confined in
25 its operation to the clause, sentence, paragraph, subdivision, section
26 or part thereof directly involved in the controversy in which such judg-
27 ment shall have been rendered. It is hereby declared to be the intent of
28 the legislature that this act would have been enacted even if such
29 invalid provisions had not been included herein.
30 § 3. This act shall take effect immediately provided, however, that
31 the applicable effective date of Parts A through D of this act shall be
32 as specifically set forth in the last section of such Parts.
