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S00471 Summary:

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S00471 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         471--A
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  Sen.  KAPLAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Housing, Construction  and
          Community  Development  -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee

        AN ACT establishing the "COVID-19 Emergency Protect Our Small Businesses
          Act of 2021"; in relation to eviction proceedings; and to provide  for
          the expiration of certain provisions upon the expiration thereof (Part
          A);  and in relation to foreclosure proceedings; and providing for the
          expiration of certain provisions upon the expiration thereof  (Subpart
          A);  in  relation  to  tax  sales; and providing for the expiration of
          certain provisions upon the expiration thereof (Subpart B); to  estab-
          lish hardship declarations for owners of commercial real property; and
          providing  for  the  expiration of such provisions upon the expiration
          thereof (Subpart C) (Part B)
 
          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 components of legislation relating
     2  to  commercial  eviction  and foreclosure protections. Each component is
     3  wholly contained within a Part identified as Parts A  through  B.    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  four  of this act sets forth the general effective date of this
    11  act.
    12    § 2. Short title. This act shall be known and  may  be  cited  as  the
    13  "COVID-19 Emergency Protect our Small Businesses Act of 2021".
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07084-04-1
        S. 471--A                           2
 
     1    § 3. Legislative intent. The Legislature finds and declares all of the
     2  following:
     3    On March 7, 2020, Governor Andrew Cuomo proclaimed a state of emergen-
     4  cy  in response to the Coronavirus disease (COVID-19) pandemic. Measures
     5  necessary to contain the spread of COVID-19  have  brought  about  wide-
     6  spread  economic  and societal disruption, placing the state of New York
     7  in unprecedented circumstances.
     8    COVID-19 presents a historic threat to small businesses.  Thousands of
     9  small businesses are facing eviction or  foreclosure  due  to  necessary
    10  disease control measures that closed or restricted businesses across the
    11  state. The pandemic has further interrupted court operations, the avail-
    12  ability  of counsel, the ability for parties to pay for counsel, and the
    13  ability to safely commute and enter a courtroom,  settlement  conference
    14  and the like.
    15    Ensuring small businesses can survive in this unprecedented time is to
    16  the  mutual  benefit  of all New Yorkers and will help the state address
    17  the pandemic, protect public health, and set the stage for recovery.  It
    18  is, therefore, the intent of this legislation to avoid as many evictions
    19  and  foreclosures of small businesses as possible for businesses experi-
    20  encing a financial hardship during the COVID-19 pandemic.
    21    As such,  it  is  necessary  to  temporarily  allow  small  businesses
    22  impacted  by  COVID-19 to remain in their place of business.  A limited,
    23  temporary stay is necessary to protect the  public  health,  safety  and
    24  morals  of the people the Legislature represents from the dangers of the
    25  COVID-19 emergency pandemic.
 
    26                                   PART A
 
    27    Section 1. Definitions. For the purposes of this act:    1.  "Eviction
    28  proceeding"  means  a  summary  proceeding to recover possession of real
    29  property  under  article  seven  of  the  real  property   actions   and
    30  proceedings  law  relating to a commercial unit or any other judicial or
    31  administrative proceeding to recover possession of real property  relat-
    32  ing to a commercial unit.
    33    2.  "Landlord" includes a landlord, owner of a commercial property and
    34  any other person with a  legal  right  to  pursue  eviction,  possessory
    35  action  or  a  money  judgment for rent, including arrears, owed or that
    36  becomes due during the COVID-19 covered period, as defined in section  1
    37  of chapter 127 of the laws of 2020.
    38    3.  "Tenant"  includes  a  commercial tenant that is a resident of the
    39  state, independently owned and operated, not dominant in its  field  and
    40  employs fifty or fewer persons.
    41    4. "Hardship declaration" means the following statement, or a substan-
    42  tially  equivalent  statement  in  the  language in which the commercial
    43  lease or tenancy agreement was written or negotiated, in 14-point  type,
    44  published  by the office of court administration, whether in physical or
    45  electronic written form:
    46    "NOTICE TO COMMERCIAL TENANT:  If you have lost significant revenue or
    47  had significantly increased necessary costs during the COVID-19  pandem-
    48  ic,  and  you  sign  and  deliver this hardship declaration form to your
    49  landlord, you cannot be evicted until at least May 1, 2021  for  nonpay-
    50  ment of rent or for holding over after the expiration of your lease. You
    51  may still be evicted for violating your lease by persistently and unrea-
    52  sonably engaging in behavior that substantially infringes on the use and
    53  enjoyment  of  other tenants or occupants or causes a substantial safety
    54  hazard to others.
        S. 471--A                           3
 
     1    If your landlord has provided you with this form, your  landlord  must
     2  also  provide you with a mailing address and e-mail address to which you
     3  can return this form. If your landlord has already started  an  eviction
     4  proceeding  against  you,  you can return this form to either your land-
     5  lord,  the court, or both at any time. You should keep a copy or picture
     6  of the signed form for your records. You will still owe any unpaid  rent
     7  to  your  landlord.  You should also keep careful track of what you have
     8  paid and any amount you still owe.

     9           COMMERCIAL TENANT'S DECLARATION OF HARDSHIP DURING THE
    10                              COVID-19 PANDEMIC
 
    11  I am the owner, chief executive officer, president, or  similar  officer
    12  of  (name  of  business), in which is a commercial tenant at (address of
    13  commercial unit).  My business is resident in New York state,  independ-
    14  ently  owned  and operated, not dominant in its field, and employs fifty
    15  or fewer persons.  My business is experiencing financial  hardship,  and
    16  is unable to pay the rent or other financial obligations under the lease
    17  in full or obtain an alternative suitable commercial property because of
    18  one or more of the following:
    19    1. Significant loss of revenue during the COVID-19 pandemic.
    20    2.  Significant  increase  in  necessary expenses related to providing
    21  personal protective equipment to employees or purchasing and  installing
    22  other protective equipment to prevent the transmission of COVID-19 with-
    23  in the business.
    24    3.  Moving  expenses and difficulty in securing an alternative commer-
    25  cial property make it a hardship for the business to relocate to another
    26  location during the COVID-19 pandemic.
    27    To the extent the business has lost revenue or had increased expenses,
    28  any public assistance the business has received since the start  of  the
    29  COVID-19  pandemic  does  not  fully  make up for the business's loss of
    30  revenue or increased expenses.
 
    31  I understand that the business must comply with all other  lawful  terms
    32  under  its  commercial  tenancy,  lease agreement or similar contract. I
    33  further understand that lawful  fees,  penalties  or  interest  for  not
    34  having  paid rent in full or met other financial obligations as required
    35  by the commercial tenancy, lease agreement or similar contract may still
    36  be charged or collected and may  result  in  a  monetary  judgment.    I
    37  further  understand that the landlord may be able to seek eviction after
    38  May 1, 2021, and that the law may provide certain  protections  at  that
    39  time that are separate from those available through this declaration.
 
    40  Signed:
    41  Printed name:
    42  Date signed:
 
    43  NOTICE:  You  are signing and submitting this form under penalty of law.
    44  That means it is against the law to make a statement on this  form  that
    45  you know is false."
    46    §  2.  No commercial tenant shall be removed from the possession prior
    47  to May 1, 2021, except by an eviction proceeding.
    48    § 3. Pending eviction proceedings. Any eviction proceeding pending  on
    49  the  effective date of this act, including eviction proceedings filed on
    50  or before March 7, 2020, or commenced within thirty days of  the  effec-
    51  tive  date  of  this  act shall be stayed for at least sixty days, or to
        S. 471--A                           4
 
     1  such later date that the chief administrative judge shall  determine  is
     2  necessary  to  ensure that courts are prepared to conduct proceedings in
     3  compliance with this act and to give tenants an  opportunity  to  submit
     4  the  hardship  declaration pursuant to this act.  The court in each case
     5  shall promptly issue an order directing such stay and promptly mail  the
     6  respondent  a  copy  of the hardship declaration in English, and, to the
     7  extent practicable, the language in which the commercial lease or tenan-
     8  cy agreement was written or negotiated, if other than English.
     9    § 4. Pre-eviction notices. A landlord shall include a "Hardship Decla-
    10  ration" with every written notice required by the  commercial  lease  or
    11  tenancy  agreement, law or rule to be provided prior to the commencement
    12  of an eviction proceeding, and with every notice of petition or  summons
    13  and  complaint  served  on a tenant.  If the translation of the hardship
    14  declaration in the language in which the  commercial  lease  or  tenancy
    15  agreement  was  written  or negotiated is not available on the office of
    16  court administration's  public  website,  it  shall  be  the  landlord's
    17  responsibility to obtain a suitable translation of the hardship declara-
    18  tion. Such notice shall also include a mailing address, telephone number
    19  and  active email address the tenant can use to contact the landlord and
    20  return the hardship declaration.
    21    § 5. Prohibition on initiation of eviction proceeding.  If there is no
    22  pending eviction proceeding and a tenant provides a hardship declaration
    23  to the landlord or an agent of the landlord, there shall  be  no  initi-
    24  ation of an eviction proceeding against the tenant until at least May 1,
    25  2021,  and in such event any specific time limit for the commencement of
    26  an eviction proceeding shall be tolled until May 1, 2021.
    27    § 6. Required affidavit. 1. No court shall accept for filing any peti-
    28  tion or other filing to commence an eviction proceeding unless the peti-
    29  tioner or plaintiff or an agent of the petitioner or plaintiff files  an
    30  affidavit of service, under penalty of perjury, demonstrating the manner
    31  in  which the petitioner or plaintiff or the petitioner's or plaintiff's
    32  agent served a copy of the  hardship  declaration  in  English  and  the
    33  language  in which the commercial lease or tenancy agreement was written
    34  or negotiated, if other than English, with any written  notice  required
    35  by the commercial lease or tenancy agreement, law or rule to be provided
    36  prior  to  the  commencement of an eviction proceeding, and an affidavit
    37  under penalty of perjury:
    38    a. attesting that at the time of filing,  neither  the  petitioner  or
    39  plaintiff  nor  any  agent of the petitioner or plaintiff has received a
    40  hardship declaration from the respondent, or
    41    b. attesting that the respondent or defendant has returned a  hardship
    42  declaration,  but the respondent or defendant is persistently and unrea-
    43  sonably engaging in behavior that substantially infringes on the use and
    44  enjoyment of other tenants or occupants or causes a  substantial  safety
    45  hazard to others, with a specific description of the behavior alleged.
    46    2.  Upon  accepting  a  petition  or complaint, the attorney, judge or
    47  clerk of the court, as the case may be, shall determine whether  a  copy
    48  of  the  hardship  declaration  in English and the language in which the
    49  commercial lease or tenancy agreement  was  written  or  negotiated,  if
    50  other  than  English,  is  annexed  to  the served notice of petition or
    51  summons and complaint and, if not, shall ensure that the hardship decla-
    52  ration is attached to such notice or summons.  At the earliest  possible
    53  opportunity, the court shall seek confirmation on the record or in writ-
    54  ing  from  the  respondent or defendant that the respondent or defendant
    55  has received the hardship declaration and that the respondent or defend-
    56  ant has not submitted a hardship declaration to the petitioner or plain-
        S. 471--A                           5
 
     1  tiff, an agent of the petitioner or plaintiff,  or  the  court.  If  the
     2  court  determines  a respondent or defendant has not received a hardship
     3  declaration, then the court shall stay the proceeding for  a  reasonable
     4  period  of  time,  which  shall be no less than ten business days or any
     5  longer period provided by law, and provide the respondent  or  defendant
     6  with  a  copy  of the hardship declaration in English and, to the extent
     7  practicable, the language in  which  the  commercial  lease  or  tenancy
     8  agreement  was  written  or negotiated, if other than English, to ensure
     9  the respondent or defendant received and  fully  considered  whether  to
    10  submit the hardship declaration.
    11    §  7.  Pending  proceedings.  In  any  eviction proceeding in which an
    12  eviction warrant or judgment of possession or  ejectment  has  not  been
    13  issued, including eviction proceedings filed on or before March 7, 2020,
    14  if  the  tenant  provides  a  hardship  declaration to the petitioner or
    15  plaintiff, the court, or an agent of the petitioner or plaintiff or  the
    16  court,  the  eviction  proceeding  shall be stayed until at least May 1,
    17  2021. If such hardship declaration is  provided  to  the  petitioner  or
    18  plaintiff or agent, such petitioner or plaintiff or agent shall promptly
    19  file  it  with the court, advising the court in writing the index number
    20  of all relevant cases.
    21    § 8. Post warrant of eviction.  a. (i) In any eviction  proceeding  in
    22  which  an  eviction  warrant  or judgment of possession or ejectment has
    23  been issued prior to the effective date of this act,  but  has  not  yet
    24  been  executed  as of the effective date of this act, including eviction
    25  proceedings filed on or before March 7, 2020, the court shall  stay  the
    26  execution of the warrant or judgment at least until the court has held a
    27  status  conference with the parties. (ii) In any eviction proceeding, if
    28  the tenant provides a hardship declaration to the petitioner  or  plain-
    29  tiff,  the  court,  or  an  agent  of the petitioner or plaintiff or the
    30  court, prior to the execution of the warrant or judgment, the  execution
    31  shall be stayed until at least May 1, 2021. If such hardship declaration
    32  is provided to the petitioner or plaintiff or agent of the petitioner or
    33  plaintiff,  such petitioner or plaintiff or agent shall promptly file it
    34  with the court, advising the court in writing the index  number  of  all
    35  relevant cases.
    36    b. In any eviction proceeding in which a warrant or execution has been
    37  issued, including eviction proceedings filed on or before March 7, 2020,
    38  any  warrant  or  execution issued shall not be effective as against the
    39  occupants, unless, in addition to other  requirements  under  law,  such
    40  warrant or execution states:
    41    (i)  The  tenant  has  not  submitted the hardship declaration and the
    42  tenant was properly served with  a  copy  of  the  hardship  declaration
    43  pursuant  to  this section, listing dates the tenant was served with the
    44  hardship declaration by the petitioner or plaintiff and the court; or
    45    (ii) The tenant is ineligible for a stay under this  act  because  the
    46  court  has found that the tenant is persistently and unreasonably engag-
    47  ing in behavior that substantially infringes on the use and enjoyment of
    48  other tenants or occupants or causes  a  substantial  safety  hazard  to
    49  others, with a specific description of the behavior.
    50    c. No court shall issue a warrant or execution directed to the sheriff
    51  of  the  county  or to any constable or marshal of the city in which the
    52  property, or a portion thereof, is situated, or, if it is  not  situated
    53  in  a  city,  to  any constable of any town in the county, that does not
    54  comply with the requirements of this section.
        S. 471--A                           6
 
     1    d. No officer to whom the  warrant  or  execution  is  directed  shall
     2  execute  a  warrant  for  eviction  issued that does not comply with the
     3  requirements of this section.
     4    e.  Unless the warrant or execution contains the information contained
     5  in paragraph (ii) of subdivision b of this section, if any tenant deliv-
     6  ers the hardship declaration to the  officer  to  whom  the  warrant  or
     7  execution  is  directed,  the  officer  shall not execute the warrant or
     8  execution and shall return the hardship form to the court indicating the
     9  appropriate index/case number the form is associated with.
    10    § 9. Sections three, four, five, seven and paragraph (ii) of  subdivi-
    11  sion  a  of  section  eight of this act shall not apply if the tenant is
    12  persistently and unreasonably engaging in  behavior  that  substantially
    13  infringes  on  the  use  and  enjoyment of other tenants or occupants or
    14  causes a substantial safety hazard to others, provided:
    15    1. If an eviction proceeding is pending on the effective date of  this
    16  act, but the petitioner or plaintiff has not previously alleged that the
    17  tenant persistently and unreasonably engaged in such behavior, the peti-
    18  tioner  or  plaintiff  shall  be required to submit a new petition or an
    19  amended complaint with such allegations and comply with all  notice  and
    20  service requirements under law.
    21    2. If the court has awarded a judgment against a respondent or defend-
    22  ant  prior to the effective date of this act on the basis of objectiona-
    23  ble or nuisance behavior, the court shall hold a  hearing  to  determine
    24  whether  the tenant is continuing to persist in engaging in unreasonable
    25  behavior that substantially infringes on the use and enjoyment of  other
    26  tenants or occupants or causes a substantial safety hazard to others.
    27    3. For the purposes of this act, a mere  allegation of the behavior by
    28  the  petitioner  or plaintiff or an agent of the petitioner or plaintiff
    29  alleging such behavior shall not be  sufficient  evidence  to  establish
    30  that the tenant has engaged in such behavior.
    31    4.  If  the petitioner or plaintiff fails to establish that the tenant
    32  persistently and unreasonably engaged in such behavior  and  the  tenant
    33  provides  or  has  provided  a  hardship  declaration to the petitioner,
    34  petitioner's or plaintiff's agent or the court, the court shall stay  or
    35  continue to stay any further proceedings until at least May 1, 2021.
    36    5.  If the petitioner or plaintiff establishes that the tenant persis-
    37  tently and unreasonably engaged in such behavior or the tenant fails  to
    38  provide   a   hardship  declaration  to  the  petitioner  or  plaintiff,
    39  petitioner's or plaintiff's agent  or  the  court,  the  proceeding  may
    40  continue pursuant to law.
    41    §  10. Translation of hardship declaration. The office of court admin-
    42  istration shall  translate  the  hardship  declaration,  as  defined  in
    43  section  one  of  this act, into Spanish and, to the extent practicable,
    44  the six most common languages in the city of New  York,  after  Spanish,
    45  and  shall  post  and maintain such translations and an English language
    46  copy of the hardship declaration on the website of such office beginning
    47  within fifteen days of the effective date of this act.   To  the  extent
    48  practicable,  the office of court administration shall post and maintain
    49  on its website translations into such additional languages as the  chief
    50  administrative  judge shall deem appropriate to ensure that tenants have
    51  an opportunity to understand and submit hardship  declarations  pursuant
    52  to this act.
    53    §  11.  Rebuttable  presumption. A hardship declaration shall create a
    54  rebuttable presumption that the tenant is experiencing  financial  hard-
    55  ship,  in any judicial or administrative proceeding that may be brought,
    56  for the purposes of establishing a defense under an executive  order  of
        S. 471--A                           7
 
     1  the  governor  or  any  other  local  or  state law, order or regulation
     2  restricting the eviction of a tenant suffering from a financial hardship
     3  during or due to COVID-19 provided that the absence of a hardship decla-
     4  ration  shall  not create a presumption that a financial hardship is not
     5  present.
     6    § 12. If any clause, sentence, paragraph, section or part of this  act
     7  shall  be  adjudged by any court of competent jurisdiction to be invalid
     8  and after exhaustion of all further judicial review, the judgment  shall
     9  not  affect,  impair  or  invalidate the remainder thereof, but shall be
    10  confined in its operation to the clause, sentence, paragraph, section or
    11  part of this act directly involved in the controversy in which the judg-
    12  ment shall have been rendered.
    13    § 13. This act shall take effect immediately and  sections  one,  two,
    14  three,  four,  five, six, seven, eight, nine, ten and twelve of this act
    15  shall expire May 1, 2021.

    16                                   PART B
 
    17    Section 1. This Part enacts into law components of legislation  relat-
    18  ing  to mortgage foreclosure, tax foreclosure, credit discrimination and
    19  tax renewal exemption protections.  Each component is  wholly  contained
    20  within  a Subpart identified as Subparts A through C. The effective date
    21  for each particular provision contained within such Subpart is set forth
    22  in the last section of  such  Subpart.  Any  provision  in  any  section
    23  contained within a Subpart, including the effective date of the Subpart,
    24  which  makes  reference  to  a  section  "of  this  act",  when  used in
    25  connection with that particular component, shall be deemed to  mean  and
    26  refer  to the corresponding section of the Subpart in which it is found.
    27  Section three of this Part sets forth the general effective date of this
    28  Part.

    29                                  SUBPART A
 
    30    Section 1. Application. This section shall  apply  to  any  action  to
    31  foreclose  a mortgage relating to commercial real property, provided the
    32  owner or mortgagor of such property owns ten or fewer  commercial  units
    33  whether directly or indirectly and is a business that is resident in New
    34  York State, independently owned and operated, not dominant in its field,
    35  and  employs  fifty  or fewer persons. The ten or fewer commercial units
    36  may be in more than one property or building as long as the total aggre-
    37  gate number of ten units are currently  occupied  by  a  tenant  or  are
    38  available for rent.
    39    Notwithstanding anything to the contrary, this act shall not apply to,
    40  and does not affect any mortgage loans made, insured, purchased or secu-
    41  ritized by a corporate governmental agency of the state constituted as a
    42  political  subdivision and public benefit corporation, or the rights and
    43  obligations of any lender, issuer, servicer or  trustee  of  such  obli-
    44  gations.
    45    § 2. Definitions. For the purposes of this act, "Hardship Declaration"
    46  means  the following statement in 14-point type, published by the office
    47  of court administration, whether in physical or electronic written form:
    48    "NOTICE TO COMMERCIAL MORTGAGOR: If you have lost significant  revenue
    49  or  had  significantly  increased  necessary  costs  during the COVID-19
    50  pandemic, and you sign and deliver this  hardship  declaration  form  to
    51  your  mortgage  lender  or  other foreclosing party, you cannot be fore-
    52  closed on until at least May 1, 2021.
        S. 471--A                           8
 
     1    If your mortgage lender or other foreclosing party provided  you  with
     2  this  form,  the  mortgage  lender  or other foreclosing party must also
     3  provide you with a mailing address and e-mail address to which  you  can
     4  return this form. If you are already in foreclosure proceedings, you may
     5  return  this form to the court. You should keep a copy or picture of the
     6  signed form for your records. You will still  owe  any  unpaid  mortgage
     7  payments  and  lawful  fees to your lender. You should also keep careful
     8  track of what you have paid and any amount you still owe.
     9        COMMERCIAL MORTGAGOR'S DECLARATION OF COVID-19-RELATED HARDSHIP
    10    I am the owner, chief executive officer, president, or similar officer
    11  of (name of the business), which is the mortgagor  of  the  property  at
    12  (address  of  commercial  unit).   My business owns, whether directly or
    13  indirectly, ten or fewer commercial units.  My business is  resident  in
    14  New  York  State,  independently owned and operated, not dominant in its
    15  field, and employs fifty or fewer persons. My business  is  experiencing
    16  financial  hardship and is unable to pay the mortgage in full because of
    17  one or more of the following:
    18    1. Significant loss of revenue during the COVID-19 pandemic.
    19    2. Significant increase in necessary  expenses  related  to  providing
    20  personal  protective equipment to employees or purchasing and installing
    21  other protective equipment to prevent the transmission of COVID-19 with-
    22  in the business.
    23    3. Moving expenses and difficulty in securing an  alternative  commer-
    24  cial property make it a hardship for the business to relocate to another
    25  property during the COVID-19 pandemic.
    26    4.  One  or  more of the business's tenants has defaulted on a signif-
    27  icant amount of their rent payments since March 1, 2020.
    28    To the extent that the business has  lost  revenue  or  had  increased
    29  expenses,  any  public  assistance  the  business has received since the
    30  start of the COVID-19 pandemic does not fully make up for the business's
    31  loss of revenue or increased expenses.
    32    I understand that the business must comply with all other lawful terms
    33  under my commercial mortgage agreement. I further understand that lawful
    34  fees, penalties or interest for not having paid the mortgage in full  as
    35  required  by  the  commercial mortgage agreement may still be charged or
    36  collected and may result in a monetary judgment.  I also understand that
    37  the mortgage lender or other foreclosing party may pursue a  foreclosure
    38  action  against  the business on or after May 1, 2021, if I do not fully
    39  repay any missed or partial payments and lawful fees.
    40  Signed:
    41  Printed Name:
    42  Date Signed:
    43  NOTICE: You are signing and submitting this form under penalty  of  law.
    44  That  means  it is against the law to make a statement on this form that
    45  you know is false."
    46    § 3. Any action to foreclose a mortgage pending on the effective  date
    47  of  this  act,  including  actions  filed on or before March 7, 2020, or
    48  commenced within thirty days of the effective date of this act shall  be
    49  stayed  for  at  least  sixty days, or to such later date that the chief
    50  administrative judge shall determine is necessary to ensure that  courts
    51  are  prepared  to conduct proceedings in compliance with this act and to
    52  give mortgagors an opportunity to submit the hardship declaration pursu-
    53  ant to this act. The court in each case shall promptly  issue  an  order
    54  directing  such stay and promptly mail the mortgagor a copy of the hard-
    55  ship declaration.
        S. 471--A                           9
 
     1    § 4. The foreclosing party shall include a "Hardship Declaration" with
     2  every notice required provided to a mortgagor prior to filing an  action
     3  for foreclosure. Such notice shall also include a mailing address, tele-
     4  phone  number  and active email address the mortgagor can use to contact
     5  the foreclosing party and return the hardship declaration.
     6    § 5. If a mortgagor provides a hardship declaration to the foreclosing
     7  party or an agent of the foreclosing party, there shall be no initiation
     8  of  an  action  to  foreclose  a mortgage against the mortgagor until at
     9  least May 1, 2021, and in such event any specific  time  limit  for  the
    10  commencement  of an action to foreclose a mortgage shall be tolled until
    11  May 1, 2021.
    12    § 6. No court shall accept for filing any action to foreclose a  mort-
    13  gage  unless  the foreclosing party or an agent of the foreclosing party
    14  files an affidavit, under penalty of perjury:
    15    (i) of service demonstrating  the  manner  in  which  the  foreclosing
    16  party's  agent  served  a copy of the hardship declaration with required
    17  notices, if any, provided to the mortgagor, and
    18    (ii) attesting that at the time of  filing,  neither  the  foreclosing
    19  party  nor  any  agent  of the foreclosing party has received a hardship
    20  declaration from the mortgagor.
    21    At the earliest possible opportunity, the court shall  seek  confirma-
    22  tion  on the record or in writing that the mortgagor has received a copy
    23  of the hardship declaration and that the mortgagor has not returned  the
    24  hardship  declaration  to the foreclosing party or an agent of the fore-
    25  closing party.  If the court determines a mortgagor has not  received  a
    26  hardship  declaration,  then  the  court shall stay the proceeding for a
    27  reasonable period of time, which shall be no less than ten business days
    28  or any longer period provided by law, to ensure the  mortgagor  received
    29  and fully considered whether to submit the hardship declaration.
    30    § 7. In any action to foreclose a mortgage in which a judgment of sale
    31  has not been issued, including actions filed on or before March 7, 2020,
    32  if  the  mortgagor  provides  a  hardship declaration to the foreclosing
    33  party, the court, or an agent of the foreclosing party or the court, the
    34  proceeding shall be stayed until at least May 1, 2021. If such  hardship
    35  declaration  is  provided to the foreclosing party or agent of the fore-
    36  closing party, such foreclosing party or agent shall  promptly  file  it
    37  with  the  court,  advising the court in writing the index number of all
    38  relevant cases.
    39    § 8. In any action to foreclose a mortgage in which a judgment of sale
    40  has been issued prior to the effective date of this act but has not  yet
    41  been  executed  as  of the effective date of this act, including actions
    42  filed on or before March 7, 2020, the court shall stay the execution  of
    43  the  judgment at least until the court has held a status conference with
    44  the parties. In any action to foreclose a  mortgage,  if  the  mortgagor
    45  provides  a hardship declaration to the foreclosing party, the court, or
    46  an agent of the foreclosing party or the court, prior to  the  execution
    47  of  the  judgment,  the  execution shall be stayed until at least May 1,
    48  2021.  If such hardship declaration is provided to the foreclosing party
    49  or agent of the foreclosing party, such foreclosing party or agent shall
    50  promptly file it with the court, advising the court in writing the index
    51  number of all relevant cases.
    52    § 9. The office of court administration shall post and maintain a copy
    53  of the hardship declaration on the  website  of  such  office  beginning
    54  within fifteen days of the effective date of this act.
    55    §  10.  A  hardship  declaration shall create a rebuttable presumption
    56  that the mortgagor is suffering financial hardship, in any  judicial  or
        S. 471--A                          10
 
     1  administrative  proceeding  that  may  be  brought,  for the purposes of
     2  establishing a defense under an executive order of the governor  or  any
     3  other  local  or  state  law, order or regulation restricting actions to
     4  foreclose  a  mortgage  against  a  mortgagor suffering from a financial
     5  hardship during or due  to  the  COVID-19  pandemic  provided  that  the
     6  absence  of a hardship declaration shall not create a presumption that a
     7  financial hardship is not present.
     8    § 11. If any clause, sentence, paragraph, section or part of this  act
     9  shall  be  adjudged by any court of competent jurisdiction to be invalid
    10  and after exhaustion of all further judicial review, the judgment  shall
    11  not  affect,  impair  or  invalidate the remainder thereof, but shall be
    12  confined in its operation to the clause, sentence, paragraph, section or
    13  part of this act directly involved in the controversy in which the judg-
    14  ment shall have been rendered.
    15    § 12. This act shall take effect immediately and  sections  one,  two,
    16  three,  four, five, six, seven, eight, nine and eleven of this act shall
    17  expire May 1, 2021.
 
    18                                  SUBPART B
 
    19    Section 1. Application. This act shall apply to any  action  to  fore-
    20  close on delinquent taxes or sell a tax lien relating to commercial real
    21  property,  provided  the owner or mortgagor of such property owns ten or
    22  fewer commercial units whether directly or indirectly and is a  business
    23  that  is  resident  in New York State, independently owned and operated,
    24  not dominant in its field, and employs fifty or fewer persons.  The  ten
    25  or  fewer  commercial units may be in more than one property or building
    26  as long as the units are currently occupied by a tenant or are available
    27  for rent.
    28    § 2. Definitions. For purposes of this act: 1.  "Tax  lien"  means  an
    29  unpaid  tax, special ad valorem levy, special assessment or other charge
    30  imposed upon real property by or on behalf of a municipal corporation or
    31  special district or other public or private entity which  is  an  encum-
    32  brance  on  real property, whether or not evidenced by a written instru-
    33  ment.
    34    2. "Tax foreclosure and tax lien sale" shall mean any  such  tax  lien
    35  sale  or tax foreclosure pursuant to article 11 of the real property tax
    36  law, or any general, special or local law related to real  property  tax
    37  lien sales or real property tax foreclosures.
    38    3.  "Hardship  Declaration"  means the following statement in 14-point
    39  type, whether in physical or electronic written form:
    40         "COMMERCIAL OWNER DECLARATION OF COVID-19-RELATED HARDSHIP
    41  I am the owner, chief executive officer, president, or  similar  officer
    42  of (name of the business), which is the owner of the commercial property
    43  at  (address).  My business owns, whether directly or indirectly, ten or
    44  fewer commercial units.   My business is resident  in  New  York  State,
    45  independently owned and operated, not dominant in its field, and employs
    46  fifty or fewer persons.  My business is experiencing financial hardship,
    47  and  is  unable  to  pay its full tax bill because of one or more of the
    48  following:
    49    1. Significant loss of revenue during the COVID-19 pandemic.
    50    2. Significant increase in necessary  expenses  related  to  providing
    51  personal  protective equipment to employees or purchasing and installing
    52  other protective equipment to prevent the transmission of COVID-19 with-
    53  in the business.
        S. 471--A                          11
 
     1    3. Moving expenses and difficulty in securing an  alternative  commer-
     2  cial property make it a hardship for the business to relocate to another
     3  property during the COVID-19 pandemic.
     4    4.  One  or  more of the business's tenants has defaulted on a signif-
     5  icant amount of their rent payments since March 1, 2020.
     6    To the extent that the business has  lost  revenue  or  had  increased
     7  expenses, any public assistance that the business has received since the
     8  start  of  the  COVID-19 pandemic does not fully make up for the loss of
     9  revenue or increased expenses.
    10    I understand that lawful fees, penalties or interest  for  not  having
    11  paid  the business's taxes in full may still be charged or collected and
    12  may result in a foreclosure action against the business on or after  May
    13  1,  2021,  if  the  business  does not fully repay any missed or partial
    14  payments and fees.
    15  Signed:
    16  Printed Name:
    17  Date Signed:
    18  NOTICE: You are signing and submitting this form under penalty  of  law.
    19  That  means  it is against the law to make a statement on this form that
    20  you know is false."
    21    § 3. 1. A commercial real property owner may submit a "Hardship Decla-
    22  ration" to any village, town, city, school district,  county,  or  other
    23  entity or person which conducts tax foreclosures or tax lien sales.
    24    2.  At  least  thirty  days prior to the date on which a sale of a tax
    25  lien is scheduled to occur, or upon the filing of a petition of foreclo-
    26  sure of a tax lien, the enforcing officer  or  other  person  or  entity
    27  conducting  such tax lien sale or tax foreclosure shall notify the owner
    28  of the affected property of such owner's rights under this act and shall
    29  notify the owner that a copy of the hardship declaration can be accessed
    30  on the New York State Department of Tax and Finance's website  and  also
    31  provide  a  link to such declaration form. For the purposes of this act,
    32  "enforcing officer" shall have the same meaning as defined  in  subdivi-
    33  sion  3 of section 1102 of the real property tax law. The New York State
    34  Department of Tax and Finance shall  publish  a  copy  of  the  hardship
    35  declaration on its website.
    36    3.  The  submission  of  such  a  declaration, unless withdrawn by the
    37  owner, shall act as a temporary stay  applicable  to  all  entities  and
    38  persons  of  all  such  tax  lien  sales and tax foreclosure actions and
    39  proceedings  against  such  owner  for  such  property  that  have  been
    40  commenced or could have been commenced before May 1, 2021.
    41    4.  While  such stay is in effect, no other action or proceeding shall
    42  be commenced to recover any part of such delinquent taxes.
    43    5. Any applicable statutes of limitation for the commencement  of  any
    44  action  or  proceeding  to  sell  a  tax lien or foreclose a tax lien is
    45  tolled until such stay has expired. The obligation to pay the balance of
    46  such delinquent taxes is not rendered invalid, released or  extinguished
    47  by such stay.
    48    6.  A  hardship declaration shall create a rebuttable presumption that
    49  the owner is experiencing financial hardship, in any judicial or  admin-
    50  istrative proceeding that may be brought, for the purposes of establish-
    51  ing  a  defense  under  an  executive order of the governor or any other
    52  local or state law, order or regulation restricting actions to   sell  a
    53  tax  lien  or  foreclose    a tax lien against an owner suffering from a
    54  financial hardship during or due  to  the  COVID-19  pandemic,  provided
    55  that  the  absence of a hardship declaration shall not create a presump-
    56  tion that a financial hardship is not present.
        S. 471--A                          12
 
     1    § 4. This act shall take effect immediately and sections one  and  two
     2  and  subdivisions  one, two, three, four and five of section three shall
     3  expire May 1, 2021.
 
     4                                  SUBPART C
 
     5    Section 1. Application. 1. This act shall apply to an owner of commer-
     6  cial  real  property,  provided  the owner or mortgagor of such property
     7  owns ten or fewer commercial units whether directly or indirectly and is
     8  a business that is resident in New York State, independently  owned  and
     9  operated, not dominant in its field, and employs fifty or fewer persons.
    10  The  ten  or  fewer commercial units may be in more than one property or
    11  building as long as the total aggregate number of ten units are current-
    12  ly occupied by a tenant or are available for rent.
    13    2. Hardship declaration. For purposes of this act, "hardship  declara-
    14  tion"  shall  mean  the following statement in 14-point type, whether in
    15  physical or electronic written form, and  the  department  of  financial
    16  services  shall  publish  a  copy  of  the  hardship  declaration on its
    17  website:
    18    "NOTICE TO COMMERCIAL OWNER/MORTGAGOR: If you  have  lost  significant
    19  revenue  or  had  significantly  increased  necessary  costs  due to the
    20  COVID-19 pandemic, and you sign and deliver  this  hardship  declaration
    21  form to your lending institution, you cannot be discriminated against in
    22  the determination of whether credit should be extended or reported nega-
    23  tively to a credit reporting agency until at least May 1, 2021.
    24    If  a  lending  institution  provided  you with this form, the lending
    25  institution must also provide you with  a  mailing  address  and  e-mail
    26  address  to  which  you  can return this form. You should keep a copy or
    27  picture of the signed form for your records.
    28    COMMERCIAL OWNER/MORTGAGOR DECLARATION OF COVID-19-RELATED HARDSHIP
    29    I am the owner, chief executive officer, president, or similar officer
    30  of (name of the business), which is the OWNER/MORTGAGOR of the  property
    31  at  (address of commercial unit).  My business owns, whether directly or
    32  indirectly, ten or fewer commercial units.  My business is  resident  in
    33  New  York  State,  independently owned and operated, not dominant in its
    34  field, and employs fifty or fewer persons. My business  is  experiencing
    35  financial hardship, and is unable to pay the mortgage in full because of
    36  one or more of the following:
    37    1. Significant loss of revenue during the COVID-19 pandemic.
    38    2. Significant increase in necessary out-of-pocket expenses related to
    39  providing  personal  protective equipment to employees or purchasing and
    40  installing other protective equipment to  prevent  the  transmission  of
    41  COVID-19 within the business.
    42    3.  Moving  expenses and difficulty in securing an alternative commer-
    43  cial property make it a hardship for the business to relocate to another
    44  commercial property during the COVID-19 pandemic.
    45    4. One or more of my tenants has defaulted on a significant amount  of
    46  their rent payments since March 1, 2020.
    47    To  the  extent  that  the  business has lost revenue or had increased
    48  expenses, any public assistance that the business has received since the
    49  start of the COVID-19 pandemic does not fully make up for  the  loss  of
    50  revenue or increased expenses.
    51  Signed:
    52  Printed Name:
    53  Date Signed:
        S. 471--A                          13
 
     1  NOTICE:  You  are signing and submitting this form under penalty of law.
     2  That means it is against the law to make a statement on this  form  that
     3  you know is false."
     4    3.  Discrimination in credit decisions. Notwithstanding any law to the
     5  contrary, lending institutions shall not discriminate  in  the  determi-
     6  nation  of  whether credit should be extended to any owner of commercial
     7  real property as defined in subdivision one of this section because,  as
     8  provided for in this act, such owner has been granted a stay of mortgage
     9  foreclosure  proceedings,  tax  foreclosure  proceedings  or of tax lien
    10  sales, or that an owner of commercial real property as defined in subdi-
    11  vision one of this section is currently in arrears and has filed a hard-
    12  ship declaration with such lender.
    13    4. Prohibition on negative credit reporting. Notwithstanding  any  law
    14  to  the contrary, as provided for in this act, the granting of a stay of
    15  mortgage foreclosure proceedings, tax  foreclosure  proceedings  or  tax
    16  lien  sales,  or that an owner of commercial real property as defined in
    17  subdivision one of this section is currently in arrears and has filed  a
    18  hardship  declaration with their lender shall not be negatively reported
    19  to any credit reporting agency.
    20    § 2. This act take effect immediately and shall expire May 1, 2021.
    21    § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
    22  sion, section, item, subpart or part of this act shall  be  adjudged  by
    23  any  court  of competent jurisdiction to be invalid, such judgment shall
    24  not affect, impair, or invalidate the remainder thereof,  but  shall  be
    25  confined  in  its operation to the clause, sentence, paragraph, subdivi-
    26  sion, section, item, subpart or part thereof directly  involved  in  the
    27  controversy in which such judgment shall have been rendered. It is here-
    28  by declared to be the intent of the legislature that this act would have
    29  been enacted even if such invalid provisions had not been included here-
    30  in.
    31    §  3.  This  act shall take effect immediately provided, however, that
    32  the applicable effective date of Subparts A through C of this act  shall
    33  be as specifically set forth in the last section of such Subparts.
    34    § 4. Severability clause. If any clause, sentence, paragraph, subdivi-
    35  sion,  section  or  part  of  this act shall be adjudged by any court of
    36  competent jurisdiction to be invalid, such judgment  shall  not  affect,
    37  impair,  or  invalidate  the remainder thereof, but shall be confined in
    38  its operation to the clause, sentence, paragraph,  subdivision,  section
    39  or part thereof directly involved in the controversy in which such judg-
    40  ment shall have been rendered. It is hereby declared to be the intent of
    41  the  legislature  that  this  act  would  have been enacted even if such
    42  invalid provisions had not been included herein.
    43    § 5. This act shall take effect immediately  provided,  however,  that
    44  the  applicable effective date of Parts A through B of this act shall be
    45  as specifically set forth in the last section of such Parts.