S T A T E   O F   N E W   Y O R K
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                                  4526

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 4, 2009
                               ___________

Introduced by M. of A. FITZPATRICK, McDONOUGH, ERRIGO -- Multi-Sponsored
  by  --  M. of A.  WALKER -- read once and referred to the Committee on
  Housing

AN ACT to amend the administrative code of the city of New York and  the
  emergency  tenant protection act of nineteen seventy-four, in relation
  to determining primary  residency;  and  to  amend  the  tax  law,  in
  relation to verification of residence

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Clause 10 of subparagraph (i) of paragraph 2 of subdivision
e of section 26-403 of the administrative code of the city of  New  York
is amended to read as follows:
  (10)  Housing accommodations not occupied by the tenant, not including
subtenants or occupants, as his or her primary residence, as  determined
by a court of competent jurisdiction. FOR PURPOSES OF DETERMINING PRIMA-
RY  RESIDENCY,  AS  USED IN THIS CHAPTER, THE FAILURE TO FILE A NEW YORK
CITY RESIDENT INCOME TAX RETURN FOR THE  TWO  PRECEDING  CALENDAR  YEARS
(SETTING  FORTH THE HOUSING ACCOMMODATION AS HIS OR HER RESIDENCE) BY AN
INDIVIDUAL REQUIRED BY LAW TO FILE SUCH A  RETURN,  SHALL  RESULT  IN  A
FINDING  THAT  THE TENANT DOES NOT OCCUPY THE UNIT AS HIS OR HER PRIMARY
RESIDENCE; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT APPLY TO  AN
INDIVIDUAL WHO HAS REQUESTED AN EXTENSION OF TIME FOR PAYMENT OF TAX, OR
WHO  IS  NOT REQUIRED TO FILE A RESIDENT INCOME TAX RETURN, OR WHERE ANY
OTHER FACTOR EXISTS WHICH WOULD EXCUSE THE TIMELY FILING OF THE  RETURN;
PROVIDED FURTHER, THAT THE TIMELY FILING OF THE RETURN, ALONE, SHALL NOT
RESULT  IN A PRESUMPTION THAT THE INDIVIDUAL DOES OCCUPY THE UNIT AS HIS
OR HER PRIMARY RESIDENCE OR THAT THE FILING OF AN ACTION TO DETERMINE  A
TENANT'S PRIMARY RESIDENCE SHALL NOT PRECLUDE SUCH TENANT FROM FILING AN
AMENDED  TAX  RETURN  PROVIDED  THAT SUCH AMENDED RETURN IS FILED WITHIN
SIXTY DAYS OF THE COMMENCEMENT OF THE ACTION. No  action  or  proceeding
shall  be  commenced  seeking to recover possession on the ground that a

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02961-01-9
              

A. 4526                             2

housing accommodation is not occupied by the tenant as his or her prima-
ry residence unless the owner or lessor shall  have  given  thirty  days
notice  to the tenant of his or her intention to commence such action or
proceeding on such grounds.
  S  2.  Subparagraph  (f)  of  paragraph  1 of subdivision a of section
26-504 of the administrative code of the city of New York is amended  to
read as follows:
  (f) not occupied by the tenant, not including subtenants or occupants,
as  his  primary residence, as determined by a court of competent juris-
diction[, provided, however that  no].    FOR  PURPOSES  OF  DETERMINING
PRIMARY  RESIDENCY,  AS  USED IN THIS CHAPTER, THE FAILURE TO FILE A NEW
YORK CITY RESIDENT INCOME TAX RETURN  FOR  THE  TWO  PRECEDING  CALENDAR
YEARS  (SETTING FORTH THE HOUSING ACCOMMODATION AS HIS OR HER RESIDENCE)
BY AN INDIVIDUAL REQUIRED BY LAW TO FILE SUCH A RETURN, SHALL RESULT  IN
A FINDING THAT THE TENANT DOES NOT OCCUPY THE UNIT AS HIS OR HER PRIMARY
RESIDENCE;  PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT APPLY TO AN
INDIVIDUAL WHO HAS REQUESTED AN EXTENSION OF TIME FOR PAYMENT OF TAX, OR
WHO IS NOT REQUIRED TO FILE A RESIDENT INCOME TAX RETURN, OR  WHERE  ANY
OTHER  FACTOR  EXISTS  WHICH WOULD EXCUSE THE TIMELY FILING OF A RETURN;
PROVIDED FURTHER, THAT THE TIMELY FILING OF THE RETURN, ALONE, SHALL NOT
RESULT IN A PRESUMPTION THAT THE INDIVIDUAL DOES OCCUPY THE UNIT AS  HIS
OR  HER PRIMARY RESIDENCE OR THAT THE FILING OF AN ACTION TO DETERMINE A
TENANT'S PRIMARY RESIDENCE SHALL NOT PRECLUDE SUCH TENANT FROM FILING AN
AMENDED TAX RETURN PROVIDED THAT SUCH AMENDED  RETURN  IS  FILED  WITHIN
SIXTY  DAYS  OF THE COMMENCEMENT OF THE ACTION.  NO action or proceeding
shall be commenced seeking to recover possession on the  ground  that  a
housing accommodation is not occupied by the tenant as his or her prima-
ry  residence  unless  the  owner or lessor shall have given thirty days
notice to the tenant of his or her intention to commence such action  or
proceeding  on such grounds. For the purposes of this subparagraph where
a housing accommodation is rented to a not-for-profit hospital for resi-
dential use, affiliated subtenants authorized to use such accommodations
by such hospital shall be deemed to be tenants, or
  S 3. Paragraph 11 of subdivision a of section 5 of section 4 of  chap-
ter  576  of  the  laws  of  1974,  constituting  the  emergency  tenant
protection act of nineteen seventy-four, as amended by  chapter  940  of
the laws of 1984, is amended to read as follows:
  (11)  housing accommodations which are not occupied by the tenant, not
including subtenants or occupants, as his primary residence,  as  deter-
mined  by a court of competent jurisdiction. FOR PURPOSES OF DETERMINING
PRIMARY RESIDENCY, AS USED IN THIS CHAPTER, THE FAILURE TO  FILE  A  NEW
YORK  STATE  RESIDENT  INCOME  TAX RETURN FOR THE TWO PRECEDING CALENDAR
YEARS (SETTING FORTH THE HOUSING ACCOMMODATION AS HIS OR HER  RESIDENCE)
BY  AN INDIVIDUAL REQUIRED BY LAW TO FILE SUCH A RETURN, SHALL RESULT IN
A FINDING THAT THE TENANT DOES NOT OCCUPY THE UNIT AS HIS OR HER PRIMARY
RESIDENCE; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT APPLY TO  AN
INDIVIDUAL WHO HAS REQUESTED AN EXTENSION OF TIME FOR PAYMENT OF TAX, OR
WHO  IS  NOT REQUIRED TO FILE A RESIDENT INCOME TAX RETURN, OR WHERE ANY
OTHER FACTOR EXISTS WHICH WOULD EXCUSE THE TIMELY FILING OF THE  RETURN;
PROVIDED FURTHER, THAT THE TIMELY FILING OF THE RETURN, ALONE, SHALL NOT
RESULT  IN A PRESUMPTION THAT THE INDIVIDUAL DOES OCCUPY THE UNIT AS HIS
OR HER PRIMARY RESIDENCE OR THAT THE FILING OF AN ACTION TO DETERMINE  A
TENANT'S PRIMARY RESIDENCE SHALL NOT PRECLUDE SUCH TENANT FROM FILING AN
AMENDED  TAX  RETURN  PROVIDED  THAT SUCH AMENDED RETURN IS FILED WITHIN
SIXTY DAYS OF THE COMMENCEMENT OF THE ACTION. For the purposes  of  this
paragraph,  where  a housing accommodation is rented to a not-for-profit

A. 4526                             3

hospital for residential use, affiliated subtenants  authorized  to  use
such  accommodations  by such hospital shall be deemed to be tenants. No
action or proceeding shall be commenced seeking to recover possession on
the ground that a housing accommodation is not occupied by the tenant as
his primary residence unless the owner or lessor shall have given thirty
days  notice  to  the tenant of his intention to commence such action or
proceeding on such grounds.
  S 4. The tax law is amended by adding a new section 171-t to  read  as
follows:
  S 171-T. VERIFICATION OF RESIDENCE FILING ADDRESS. (1) THE COMMISSION-
ER  IS  AUTHORIZED  TO VERIFY TO OWNERS OF MULTIPLE DWELLINGS COVERED BY
THE CITY RENT AND REHABILITATION LAW,  THE  RENT  STABILIZATION  LAW  OF
NINETEEN  HUNDRED  SIXTY-NINE AND/OR THE EMERGENCY TENANT PROTECTION ACT
OF NINETEEN SEVENTY-FOUR WHETHER OR NOT, IN A GIVEN CALENDAR YEAR, A NEW
YORK CITY OR NEW YORK STATE RESIDENT INCOME TAX RETURN WAS FILED  BY  AN
INDIVIDUAL  WHO IS A TENANT IN THE OWNER'S MULTIPLE DWELLING AND, IF SO,
THE RESIDENCE ADDRESS WHICH IS SET  FORTH  ON  THE  TAX  RETURN.    SUCH
VERIFICATION  SHALL  BE IN WRITING AND SHALL BE CONSIDERED A CERTIFICATE
OR AFFIDAVIT FOR THE PURPOSES OF RULE FORTY-FIVE HUNDRED TWENTY  OF  THE
CIVIL PRACTICE LAW AND RULES.
  (2)  THE  DEPARTMENT  MAY CHARGE A REASONABLE FEE, TO BE DETERMINED BY
THE COMMISSIONER, IN PAYMENT TO THE DEPARTMENT FOR THE EXPENSE  INCURRED
IN VERIFYING THE FILING AND RESIDENCE ADDRESS.
  (3) THE COMMISSIONER SHALL PROMULGATE SUCH RULES AND REGULATIONS AS IT
DEEMS NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SECTION.
  S  5. This act shall take effect immediately; provided that the amend-
ment to section 26-403 of the city rent and rehabilitation law  made  by
section  one  of  this act shall remain in full force and effect only so
long as the public emergency requiring the  regulation  and  control  of
residential  rents and evictions continues, as provided in subdivision 3
of section 1 of  the  local  emergency  housing  rent  control  act  and
provided  further  that  the amendment to section 26-504 of chapter 4 of
title 26 of the administrative code of the city  of  New  York  made  by
section  two  of  this  act  shall  expire  on the same date as such law
expires and shall not affect the expiration  of  such  law  as  provided
under  section  26-520 of such law; and provided further that the amend-
ment to section 5 of the emergency tenant  protection  act  of  nineteen
seventy-four  made by section three of this act shall expire on the same
date as such act expires and shall not affect the expiration of such act
as provided in section 17 of chapter 576 of the laws of 1974.