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. LBD07084-04-1S. 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 toS. 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 ofS. 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 orS. 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.