S05326 Summary:

BILL NOS05326
 
SAME ASSAME AS A06529
 
SPONSORSALAZAR
 
COSPNSRJACKSON, BIAGGI
 
MLTSPNSR
 
Add Title 22 Chap 12 22-1201 - 22-1210, NYC Ad Cd
 
Enacts the small business survival act; creates a commercial lease arbitration and mediation program for fair negotiations in the commercial lease renewal process for small businesses.
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S05326 Actions:

BILL NOS05326
 
04/25/2019REFERRED TO CITIES
01/08/2020REFERRED TO CITIES
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S05326 Committee Votes:

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S05326 Floor Votes:

There are no votes for this bill in this legislative session.
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S05326 Memo:

Memo not available
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S05326 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5326
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                     April 25, 2019
                                       ___________
 
        Introduced  by  Sen. SALAZAR -- read twice and ordered printed, and when
          printed to be committed to the Committee on Cities
 
        AN ACT to amend the administrative code of the  city  of  New  York,  in
          relation to enacting the "small business survival act"
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "small business survival act".
     3    § 2. Legislative intent. The legislature finds that the small business
     4  sector  of  the  city  of New York remains vulnerable at a time when New
     5  York city is more dependent than ever on small business for  job  growth
     6  and  revenues. The New York city commercial rental market has been nega-
     7  tively influenced by speculators for such an  extended  period  of  time
     8  that  the interest of small businesses and job creation, and the broader
     9  general economic interest of the city, are being harmed. An unacceptable
    10  number of established small businesses are being forced out of  business
    11  solely  as  a result of the commercial lease renewal process.  Whereby a
    12  breakdown has taken place in normal processes of bargaining and  freedom
    13  of  contract  has become an illusory concept during the commercial lease
    14  renewal process.   The  current  commercial  rental  market  results  in
    15  unjust,  unreasonable, and oppressive leases for the payment of rent for
    16  commercial space in New York city.  Landlords  continue  to  exact  such
    17  agreements from tenants under stress of prevailing market conditions and
    18  unequal  bargaining  power,  without  any  tenants'  rights to allow for
    19  bargaining in good faith to arrive at fair and reasonable  lease  terms.
    20  The  absence of legal protection for the interests of commercial tenants
    21  in the lease renewal process has unnecessarily accelerated  the  closing
    22  of  small businesses and resulted in lost jobs, lost tax revenues caused
    23  higher inflation and cost of living rates, decreased job growth opportu-
    24  nities for New Yorkers and community instability. It is  the  intent  of
    25  the legislature, through this legislation, to give small businesses some
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10025-01-9

        S. 5326                             2
 
     1  rights in the commercial lease renewal process, and therefore, a measure
     2  of  predictability of future costs through a two-step procedure of medi-
     3  ation and, if necessary, arbitration for  negotiating  commercial  lease
     4  renewals.    This  process  would create a fair negotiating environment,
     5  which would result in more reasonable and fair lease terms to help small
     6  businesses survive and encourage job retention and growth in the city of
     7  New York.
     8    § 3. Title 22 of the administrative code of the city of  New  York  is
     9  amended by adding a new chapter 12 to read as follows:
    10                                  CHAPTER 12
    11                 COMMERCIAL LEASE ARBITRATION AND MEDIATION
    12  Section 22-1201 Scope.
    13          22-1202 Definitions.
    14          22-1203 Manner of service.
    15          22-1204 Rental guidelines.
    16          22-1205 Security deposits.
    17          22-1206 Retaliation.
    18          22-1207 Waiver.
    19          22-1208 Evaluation.
    20          22-1209 Penalties.
    21          22-1210 Inconsistency with other laws.
    22    § 22-1201 Scope. This chapter shall apply only to all commercial lease
    23  renewals for commercial premises. On any occasion wherein a landlord and
    24  tenant  are  required  to  negotiate  the  terms  of a lease renewal for
    25  commercial  uses  the  provisions  of  this  chapter  shall  apply.  The
    26  provisions  of  this  chapter  shall  apply  to any landlord and current
    27  tenant whose lease expired on or after July first, two thousand twenty.
    28    § 22-1202 Definitions. a. "Administering agency" shall mean  any  city
    29  agency,  office,  department, division, bureau or institution of govern-
    30  ment, the expenses of which are paid in whole or in part from  the  city
    31  treasury, as the mayor shall designate.
    32    b.  "Arbitrator" shall mean the person chosen by the parties or by the
    33  American Arbitration Association, or any  other  recognized  arbitration
    34  organization,  to  resolve  a  dispute  between  a landlord and a tenant
    35  concerning a commercial lease renewal or the rent to be charged for  the
    36  commercial premises.
    37    c.  "Commercial  premises" shall mean a building or space occupied for
    38  non-residential purposes including, but not limited  to,  manufacturing,
    39  retail, professional services, offices, assembling, processing, cultural
    40  and  not-for-profit  entities  that are present in the city of New York,
    41  who have a valid commercial lease.
    42    d. "Landlord" shall mean any owner, lessor, sublessor or other  person
    43  entitled  to  receive  rent  for  the use or occupancy of any commercial
    44  premises, or an agent thereof.
    45    e. "Mediator" shall mean any person, agreed upon by the parties to the
    46  dispute or chosen by the American Arbitration Association or  any  other
    47  recognized  mediation  or arbitration association, to act as an interme-
    48  diary between the parties. The mediator shall not offer a binding  deci-
    49  sion concerning the matter in dispute.
    50    f. "Negotiation" shall mean the process of conferring with one another
    51  through conferences, discussions and compromise, to arrive at a mutually
    52  agreeable settlement.
    53    g.  "Rent"  shall  mean  any  and all consideration, including but not
    54  limited to pass-alongs, received by the landlord in connection with  the
    55  use or occupancy of any commercial premises.

        S. 5326                             3
 
     1    h. "Services" shall mean those facilities which enhance the use of the
     2  commercial  premises,  including,  but  not limited to, repairs, mainte-
     3  nance, painting, heat, hot and cold water, utilities, elevator  service,
     4  security devices and patrols, furnishings, storage, janitorial and land-
     5  scaping  services,  refuse removal, insurance protection, parking spaces
     6  and facilities in common areas of the building or parcel  in  which  the
     7  rental unit is located.
     8    i.  "Tenant"  shall  mean tenant, subtenant, lessee, sublessee, or any
     9  other persons lawfully entitled to use or occupancy  of  any  commercial
    10  premises.
    11    §  22-1203  Manner  of  service.  All papers and notices which, by the
    12  terms of this chapter are required to be served, shall be  served  by  a
    13  process server, or shall be sent by first class mail and certified mail,
    14  return receipt requested or by any express mail service.
    15    §  22-1204  Rental  guidelines. a. All leases of a commercial premises
    16  may be renewed at the option of a tenant who did not lose the  right  to
    17  renew  a  lease  under  the  grounds  described in subdivision d of this
    18  section.  Such lease renewals shall be for a minimum term of ten  years,
    19  provided  however,  that  at  the  tenant's option, and with the written
    20  approval of the landlord, a lease of shorter or longer duration  may  be
    21  selected.
    22    b.  No period of lease extension required by this chapter shall extend
    23  beyond the landlord's lawful ability to rent the premises to the tenant,
    24  where such ability is limited by:
    25    (1) the obligation to rent the premises to a third party pursuant to a
    26  bona fide lease entered into prior to the effective date of  this  chap-
    27  ter;
    28    (2)  the  exercise  by a third party of a bona fide option to rent the
    29  premises provided that such option was given prior to the effective date
    30  of this chapter; or
    31    (3) any other lawful reason arising prior to such effective date.
    32    c. Any landlord whose obligations under this chapter  are  limited  by
    33  the  provisions of this section shall not be required to negotiate or to
    34  arbitrate as otherwise provided for in this  chapter  but  shall  remain
    35  obligated  to negotiate and to arbitrate a renewal lease for such period
    36  of time for which the landlord has a lawful ability to rent the  commer-
    37  cial  premises  to  the tenant. The landlord shall provide notice to the
    38  tenant one hundred eighty days before the termination of  the  lease  of
    39  the  basis  on  which  the  lease cannot be extended for a full ten-year
    40  term.
    41    d. A tenant shall lose the right of renewal and a landlord may  refuse
    42  to renew a lease only on the following grounds:
    43    (1)  The  tenant has persistently delayed rent payments without cause.
    44  For the purpose of this subdivision, "cause" is defined as the withhold-
    45  ing of rental payments by the tenant due to the  alleged  violations  of
    46  the  rental  agreement by the landlord.  In order for the landlord to be
    47  excused from renewal on this ground, the landlord must have  served  the
    48  tenant  at least three prior notices during the term of the lease to the
    49  tenant for demand of payment within thirty days, and then show that  the
    50  lessee  has  not  paid within such thirty day period. The landlord shall
    51  not serve such notice unless the rent payment was in arrears for a mini-
    52  mum of fifteen days;
    53    (2) The tenant uses the commercial premises in a manner  substantially
    54  different from that described in the lease;
    55    (3) The tenant conducts or permits any form of illegal activity on the
    56  premises;

        S. 5326                             4
 
     1    (4)  The  tenant has substantially breached any substantive obligation
     2  under the current lease and has failed to cure such breach within thirty
     3  days following written notice to cure by the landlord;
     4    (5) Upon the termination of the current tenancy, the landlord intends,
     5  in  good faith, to demolish or substantially reconstruct the premises or
     6  a substantial  part  thereof,  or  to  carry  out  substantial  work  or
     7  construction  on  the  commercial  premises  or substantial part thereof
     8  which he or she could not reasonably do without obtaining possession  of
     9  the  commercial premises. The landlord shall notify the tenant of his or
    10  her decision to reoccupy the commercial premises at least one year prior
    11  to the termination of the lease. In the event that  the  lessor  fraudu-
    12  lently  invokes  this  justification for a refusal to renew a commercial
    13  lease, the defrauded tenant may collect  treble  damages  for  any  loss
    14  suffered as a result of such action;
    15    (6) The current tenancy was created by the subletting of the property,
    16  whereby  the  prime tenant did not notify the landlord by certified mail
    17  of the subtenant's existence and did not obtain the written  consent  of
    18  the  landlord. This ground is void if the landlord and tenant had agreed
    19  in the lease to allow subleasing rights without the consent of the land-
    20  lord and all obligations of the prime  tenant  on  the  issue,  were  in
    21  compliance;
    22    (7)  It  has been determined by the administering agency or by a civil
    23  court of competent jurisdiction that the tenant is a gross and  persist-
    24  ent  violator  of  New  York  city  tax laws, of any license obligations
    25  related to the use of the premises or of any laws of  the  city  of  New
    26  York;
    27    (8)  Upon the termination of the current tenancy, the landlord intends
    28  to occupy the retail premises in order to carry out  its  own  business,
    29  which  cannot  be  the  same type of business that the current tenant is
    30  operating, unless the landlord compensates the  tenant  at  fair  market
    31  value as determined by an arbitrator as restitution for the loss of such
    32  tenant's  business.  The  landlord shall notify the tenant of his or her
    33  decision to reoccupy the premises at least one hundred eighty days prior
    34  to the termination of the lease. In the event that the landlord  fraudu-
    35  lently  invokes  this  justification for a refusal to renew a commercial
    36  lease, the defrauded tenant may collect  treble  damages  for  any  loss
    37  suffered as a result of such action.
    38    e.  Procedure  for  lease  renewals.  (1) Where the landlord agrees to
    39  renew the lease of the current tenant, such landlord  shall  notify  the
    40  tenant  at  least one hundred eighty days prior to the expiration of the
    41  lease of his or her willingness to negotiate the renewal of the  commer-
    42  cial lease agreement.  If the landlord and tenant agree, they may at any
    43  time  renegotiate  a new lease, with any agreed to terms and conditions,
    44  not inconsistent with the provisions of this chapter. The tenant  is  to
    45  continue rent payments as set forth in the lease until the parties reach
    46  an  agreement  on  a  lease  renewal  or  until  a decision is otherwise
    47  rendered through the arbitration or mediation processes described in the
    48  provisions of this subdivision.   The  first  ninety  days  of  the  one
    49  hundred  eighty-day  notice  period  is for the purpose of negotiations.
    50  Alternatively, either party may compel the other party to the dispute to
    51  use that ninety-day period, or any part thereof,  for  the  purposes  of
    52  mediation. If either the landlord or tenant chooses mediation, he or she
    53  shall  notify the other party that a mediation session is requested. The
    54  parties shall choose a mediator who is agreeable to  both  the  landlord
    55  and  tenant,  or if no such person is agreeable, then the American Arbi-
    56  tration Association shall appoint a mediator  or  any  other  recognized

        S. 5326                             5
 
     1  mediation  or arbitration association. The full costs of mediation shall
     2  be equally shared by both parties.  The mediator shall notify the  land-
     3  lord  and tenant, no more than ten days after his or her appointment, of
     4  the  date,  time,  place  and  rules  of the hearing. The mediator shall
     5  follow his or her customary rules and may render an  opinion  concerning
     6  the  dispute, which shall not be binding on the parties. If after ninety
     7  days of negotiation and any mediation sessions, the landlord and  tenant
     8  do  not  reach an agreement on a new lease, then the tenant is to notify
     9  the American Arbitration Association or any other  recognized  mediation
    10  or  arbitration  association,  within fourteen days of the expiration of
    11  the first ninety day period, that an arbitration hearing  is  requested.
    12  Failure  by the tenant to notify the American Arbitration Association or
    13  any other recognized mediation or arbitration association  within  four-
    14  teen  days of the expiration of the first ninety day period shall result
    15  in the forfeiture of the tenant's right of renewal.
    16    (2) Where the landlord refuses to  renew  a  lease  with  the  current
    17  tenant,  such  landlord is to notify the tenant a minimum of one hundred
    18  eighty days before the expiration of the lease that such landlord is not
    19  going to renew the tenant's lease and state the reason  or  reasons  for
    20  such denial in detail. Failure of the landlord to give such notice shall
    21  subject  the parties to the provisions of paragraph three of this subdi-
    22  vision. The landlord is to furnish the tenant with  all  pertinent  data
    23  supporting  such  reason or reasons. If the tenant still wishes to chal-
    24  lenge the refusal to renew the lease and apply  for  a  renewal  of  the
    25  lease, then the tenant must notify the landlord within thirty days after
    26  the  receipt  of the landlord's notice of his or her intent to challenge
    27  the refusal and seek arbitration solely on the  validity  of  the  land-
    28  lord's  grounds  for denial of tenants' right to renewal on the issue of
    29  renewal. The tenant shall then notify the American  Arbitration  Associ-
    30  ation  or  any  other  recognized  mediation or arbitration organization
    31  within fourteen days after notification by the tenant  to  the  landlord
    32  that  a hearing is requested to determine whether the landlord's grounds
    33  for refusal are valid.
    34    (3) If an arbitration hearing is requested pursuant  to  either  para-
    35  graphs one or two of this subdivision:
    36    (a) The landlord and tenant shall choose the arbitrator from a list of
    37  arbitrators  provided  by  the  American  Arbitration Association or any
    38  other recognized mediation or arbitration association.  If  they  cannot
    39  agree  on  the  selection  of  the  arbitrator within thirty days of the
    40  tenant's notice to such association that a  hearing  is  requested,  the
    41  tenant  shall  notify  within  fourteen  days  such  organization of the
    42  parties' failure to make a selection and such  arbitration  organization
    43  shall  determine  the  arbitrator  within  five  days of receipt of such
    44  notice from the tenant.  Both parties shall follow the rules established
    45  by the arbitration association in preparing for  and  holding  an  arbi-
    46  tration hearing.
    47    (b)  The arbitrator shall notify both parties of the date, place, time
    48  and rules of the hearing within fourteen days of receipt  by  the  arbi-
    49  tration association of the request for a hearing. The hearing shall take
    50  place  in  the  borough where the commercial premises are located unless
    51  otherwise agreed to by the landlord and tenant. The landlord and  tenant
    52  shall  furnish  the  arbitrator with all relevant documentation, and the
    53  arbitrator shall conduct a preliminary meeting or  conference  telephone
    54  call  prior to the hearing to review the data and familiarize himself or
    55  herself with the case. The matters the arbitrator shall determine during
    56  the preliminary meeting shall include, but not be limited to,  the  need

        S. 5326                             6
 
     1  to inspect the property requesting additional data from either party and
     2  any facts deemed relevant to the arbitrator, list of potential witnesses
     3  with  backgrounds  of  each,  and the need to hire expert consultants to
     4  certify  the  accuracy  of  data.  The arbitrator may seek to conduct an
     5  inspection of the property after notifying both parties at  least  three
     6  days  in  advance of the inspection and informing them of their right to
     7  be present during the inspection.
     8    (c) The hearing before the arbitrator may be recorded by digital, tape
     9  or video device, at the request of either party and  agreed  to  by  the
    10  arbitrator  and  whose  costs  will be borne by the party who decided on
    11  this method to create a record of the hearing. If both  parties  are  in
    12  agreement,  the  costs for recording the hearing will be shared equally.
    13  Such recording may be transcribed upon the  request  of  any  party  who
    14  posts  in  advance the estimated cost of the transcription. Either party
    15  may provide, at their expense, a reporter to transcribe the hearing. The
    16  official record of the hearing shall include all documents and offers of
    17  proof presented to the arbitrator, the written decision of the  arbitra-
    18  tor and any transcript of the hearing. The landlord and tenant will each
    19  be  given  adequate  time  to  present their cases, as determined by the
    20  arbitrator to present testimony, witnesses, pictures, videos, documents,
    21  including charts, comparable rent data and any other relevant data. Each
    22  party shall be allowed to confront and cross-examine adverse  witnesses.
    23  The  arbitrator can choose to investigate any aspect of the case to help
    24  arrive at a decision.
    25    (d) For a dispute brought before an arbitrator under paragraph one  of
    26  this  subdivision,  such arbitrator shall render a written determination
    27  setting the rent to be paid  during  a  renewal  period  of  ten  years,
    28  together  with  the  basis  for the determination of the rent, and shall
    29  notify the parties of such determination no later than thirty days after
    30  the hearing has been concluded. Failure to  notify  the  parties  within
    31  thirty  days  shall not affect the enforceability of such determination.
    32  Article seventy-five of the civil practice law and rules  governs  arbi-
    33  tration  procedure in New York state. Therefore, the ruling of the arbi-
    34  tration will be governed by this New York state statute.  Such  determi-
    35  nation  shall  be  based on (i) the cost of maintenance and operation of
    36  the entire property including land and building improvements,  including
    37  all  service debt such as mortgages, (ii) the kind, quality and quantity
    38  of services furnished by the landlord, (iii) the condition of the  space
    39  including capital improvements made by the tenant, (iv) current interest
    40  rates  on  bank  deposits  and  United  States government bonds, (v) the
    41  current fair market rates for comparable properties in the area in which
    42  the property is  located,  (vi)  the  lease  history  and  any  relevant
    43  sublease  history,  (vii)  the  longevity  of  the  business, (viii) the
    44  location of the business, (ix) the extent to which the business is bound
    45  to its particular location, (x) the size of the space, (xi) the cost  of
    46  leasing similar premises within a one mile radius of the property, (xii)
    47  the  past ten year rental market history within a one mile radius of the
    48  property, as well as, the length of time of any consistent  real  estate
    49  speculation  occurring  in  the  market and degree of real estate specu-
    50  lation for a particular area which  the  business  is  located  in,  the
    51  existence  of empty storefront property for extended periods of time and
    52  the impact upon the local commercial rental market of unusual conditions
    53  and (xiii) all other relevant factors.  The  arbitrator  shall  consider
    54  that  each small business and landlord relationship should be dealt with
    55  on a case-by-case basis. Where the commercial premises is located  in  a
    56  mixed-use  building  with  less  than twenty-five residential units, the

        S. 5326                             7
 
     1  arbitrator shall give special consideration to the  criteria  listed  in
     2  items (i) and (ii) of this subparagraph. Within thirty days of the hear-
     3  ing,  the arbitrator shall send the decision as to the rent price to the
     4  parties  involved  by certified mail.  The costs of arbitration shall be
     5  borne equally by landlord and tenant.  Article seventy-five of the civil
     6  practice law and rules governs arbitration procedure in New York  state.
     7  Therefore,  the  ruling  of the arbitration will be governed by this New
     8  York state statute.
     9    (e) For a dispute brought before an arbitrator under paragraph two  of
    10  this  subdivision,  such arbitrator shall render a written determination
    11  stating the basis for such determination and notifying  the  parties  of
    12  such  determination no later than thirty days after the hearing has been
    13  concluded. Failure to render a  timely,  written  determination  and  to
    14  notify parties within thirty days shall not affect the enforceability of
    15  such determination. Such determination shall be based on (i) appropriate
    16  laws  applicable  to  commercial spaces; (ii) the terms of the lease and
    17  compliance therewith; (iii) rental guidelines as set forth by the admin-
    18  istering agency; (iv) follow the provisions of  paragraphs  one  through
    19  eight  of  subdivision d of this section; and (v) any other relevant and
    20  material factors that the arbitrator shall deem proper. If the  arbitra-
    21  tor  decides  in favor of the landlord, then the tenant shall have until
    22  the end of the current lease to vacate. If  the  arbitrator  decides  in
    23  favor  of  the  tenant, the parties will begin the renegotiations of new
    24  lease terms and if necessary, the mediation period as detailed in  para-
    25  graph  two  of subdivision e of this section. The maximum length of time
    26  permitted for this renegotiation/mediation period will be  reduced  from
    27  ninety  days  to  thirty  days  from the date of receipt of arbitrator's
    28  ruling. If the parties have not reached a mutual agreement on the  terms
    29  of  a  new  lease,  and mediation failed to achieve agreement within the
    30  thirty day period after arbitrators' ruling on "right of renewal",  then
    31  the  parties  are to proceed to arbitration as detailed in paragraph two
    32  of subdivision e of this section.
    33    (f) The arbitrator's decision setting the rent price  shall  be  final
    34  and  binding  on  both parties except as provided herein, and they shall
    35  enter into a lease incorporating such rent which lease does not diminish
    36  any services provided by the landlord pursuant to  the  existing  lease.
    37  Such  renewal lease shall be entered into by the termination date of the
    38  current lease and shall commence at the time of expiration of the exist-
    39  ing lease. If, however, the tenant elects not to pay the rent set by the
    40  arbitrator, then the landlord and tenant shall  not  enter  into  a  new
    41  lease agreement or renew the existing lease.
    42    (g)  If,  pursuant  to  subparagraph (f) of this paragraph, the tenant
    43  elects to not pay the rent set by the arbitrator,  the  tenant  will  be
    44  allowed  to remain in possession at a rent no greater than a ten percent
    45  increase of the average rent charged during the final twelve  months  of
    46  the  last  rental  agreement  between  the  landlord and tenant from the
    47  termination date of the existing lease until  such  date  on  which  the
    48  tenant  shall  remove  his or her property from the premises as provided
    49  herein. In the event the landlord receives a  written  bona  fide  offer
    50  from  a prospective tenant to rent the premises, the landlord must first
    51  offer the current tenant the option of entering into a lease at the rent
    52  and other terms agreed to by the prospective tenant to the landlord. The
    53  landlord is to notify the tenant of such  offer  within  three  days  of
    54  receipt  of  such written bona fide offer. If the tenant declines to pay
    55  the rent or fails to accept the offer within fourteen days of receipt of
    56  the landlord's notification to the tenant of such offer, then the tenant

        S. 5326                             8
 
     1  has thirty days, from the date such notice is received, to remove  prop-
     2  erty  from  the commercial premises provided that the lease has expired.
     3  If the tenant accepts the option of  first  refusal,  the  landlord  and
     4  tenant  shall  enter  into a lease based upon the terms of the bona fide
     5  offer received by the landlord from the prospective tenant.
     6    § 22-1205 Security deposits. Security deposits  shall  not  exceed  an
     7  amount  equal  to two months rent. All security deposits shall be placed
     8  in escrow in an interest-bearing account at  a  federally  insured  bank
     9  located  in  New  York state. The tenant shall be notified in writing of
    10  the location of such escrow account. Interest paid on the account  shall
    11  be  paid in full to the tenant upon termination of the lease. The amount
    12  of interest paid to the tenant shall equal the  interest  paid  by  such
    13  federally  insured  bank less one percent for the landlord's administra-
    14  tive costs.
    15    § 22-1206 Retaliation. No landlord shall in any way retaliate  against
    16  any  tenant  for  the tenant's assertion or exercise of any rights under
    17  this chapter. Any such retaliation may subject the landlord  to  a  suit
    18  for actual and punitive damages, injunctive relief, and attorney's fees.
    19  Proof  of  retaliation  by the landlord occurring prior to or during the
    20  arbitration proceeding shall be considered by the arbitrator in making a
    21  determination as to the rent to be paid.
    22    § 22-1207 Waiver. No provision in  any  lease,  rental  agreement,  or
    23  agreement  made  in  connection therewith which waives or diminishes any
    24  right of tenant under this chapter is valid.
    25    § 22-1208 Evaluation. At the end of each fifth year, the administering
    26  agency shall report to the mayor and the council on the effectiveness of
    27  this chapter in carrying out the purposes set forth in  the  legislative
    28  findings.  The  recommendations  should  take  into account the existing
    29  commercial  rental  market  which  includes  among  other  factors   the
    30  inflation  and interest rates. This report shall also identify any other
    31  positive or negative effects of the law.
    32    § 22-1209 Penalties. a. A  landlord  or  tenant  may  seek  injunctive
    33  relief  mandating  arbitration  and/or  appropriate  damages against any
    34  landlord or tenant who fails to submit  voluntarily  to  arbitration  or
    35  otherwise fails to act in good faith.
    36    b. Any and all legal expenses incurred by one party as a result of its
    37  attempt  to compel the other party to comply with the provisions of this
    38  chapter may be awarded to the appropriate party by the arbitrator  or  a
    39  civil court of competent jurisdiction.
    40    §  22-1210  Inconsistency  with other laws. In the event of any incon-
    41  sistency with any other laws of the city of New  York,  this  law  shall
    42  take precedence.
    43    § 4. Severability. If any clause, sentence, paragraph, section or part
    44  of  this act shall be adjudged by any court of competent jurisdiction to
    45  be invalid and after exhaustion of  all  further  judicial  review,  the
    46  judgment  shall  not affect, impair or invalidate the remainder thereof,
    47  but shall be confined in its operation to the  clause,  sentence,  para-
    48  graph,  section or part of this act directly involved in the controversy
    49  in which the judgment shall have been rendered.
    50    § 5. This act shall take effect on the one hundred thirtieth day after
    51  it shall have become a law.
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