Assembly Bill A10457

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10457
 
                           I N  A S S E M B L Y
 
                               May 18, 2020
                                ___________
 
 Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Carroll) --
   read once and referred to the Committee on Judiciary
 
 AN ACT to amend the real property law, in relation  to  prohibiting  the
   enforcement  of  certain  personal  liability provisions in commercial
   leases or rental agreements involving a COVID-19 impacted  tenant  and
   considering  threatening  to or attempting to enforce such a provision
   to be a form of harassment
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  real property law is amended by adding a new section
 238-b to read as follows:
   § 238-B. PERSONAL LIABILITY PROVISIONS IN COMMERCIAL  LEASES;  HARASS-
 MENT.
   1.  DEFINITIONS. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS
 SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "COMMERCIAL TENANT" MEANS A PERSON OR ENTITY LAWFULLY OCCUPYING  A
 COVERED PROPERTY PURSUANT TO A LEASE OR OTHER RENTAL AGREEMENT.
   (B)  "COVERED  PROPERTY"  MEANS ANY BUILDING OR PORTION OF A BUILDING:
 (I) THAT IS LAWFULLY USED FOR BUYING,  SELLING  OR  OTHERWISE  PROVIDING
 GOODS  OR  SERVICES,  OR  FOR OTHER LAWFUL BUSINESS, COMMERCIAL, PROFES-
 SIONAL SERVICES OR  MANUFACTURING  ACTIVITIES;  AND  (II)  FOR  WHICH  A
 CERTIFICATE OF OCCUPANCY AUTHORIZING RESIDENTIAL USE OF SUCH BUILDING OR
 SUCH PORTION OF A BUILDING HAS NOT BEEN ISSUED.
   (C) "COVID-19" MEANS THE 2019 NOVEL CORONAVIRUS OR 2019-NCOV.
   (D) "COVID-19 PERIOD" MEANS MARCH SEVENTH, TWO THOUSAND TWENTY THROUGH
 THE  LATER  OF:  (I) THE END OF THE FIRST MONTH THAT COMMENCES AFTER THE
 EXPIRATION OF THE MORATORIUM ON ENFORCEMENT OF EVICTIONS OF  RESIDENTIAL
 AND  COMMERCIAL  TENANTS  SET  FORTH IN EXECUTIVE ORDER NUMBER 202.8, AS
 ISSUED BY THE GOVERNOR ON MARCH TWENTIETH, TWO THOUSAND TWENTY AND THER-
 EAFTER EXTENDED; (II) THE END OF THE FIRST MONTH  THAT  COMMENCES  AFTER
 THE  EXPIRATION  OF  THE MORATORIUM ON CERTAIN RESIDENTIAL EVICTIONS SET
 FORTH IN SECTION 4024 OF THE CORONAVIRUS AID, RELIEF, AND ECONOMIC SECU-
 RITY, OR CARES ACT AND ANY SUBSEQUENT AMENDMENTS  TO  SUCH  SECTION;  OR
 (III) SEPTEMBER THIRTIETH, TWO THOUSAND TWENTY.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD16332-02-0

 A. 10457                            2
 
   (E) "COVID-19 STATE DISASTER EMERGENCY" MEANS THE STATE DISASTER EMER-
 GENCY DECLARED BY THE GOVERNOR IN EXECUTIVE ORDER NUMBER TWO HUNDRED TWO
 ISSUED ON MARCH SEVENTH, TWO THOUSAND TWENTY.
   (F) "IMPACTED BY COVID-19" MEANS:
   (I) WITH RESPECT TO AN INDIVIDUAL, THAT THE INDIVIDUAL EXPERIENCED ONE
 OR MORE OF THE FOLLOWING SITUATIONS:
   (A)  THE  INDIVIDUAL  WAS  DIAGNOSED  WITH COVID-19 OR IS EXPERIENCING
 SYMPTOMS OF COVID-19 AND SEEKING A MEDICAL DIAGNOSIS;
   (B) A MEMBER OF THE INDIVIDUAL'S HOUSEHOLD WAS DIAGNOSED  WITH  COVID-
 19;
   (C)  THE INDIVIDUAL WAS PROVIDING CARE FOR A FAMILY MEMBER OR A MEMBER
 OF THE INDIVIDUAL'S HOUSEHOLD WHO WAS DIAGNOSED WITH COVID-19;
   (D) A MEMBER OF THE INDIVIDUAL'S HOUSEHOLD FOR  WHOM  THE  PERSON  HAD
 PRIMARY CAREGIVING RESPONSIBILITY WAS UNABLE TO ATTEND SCHOOL OR ANOTHER
 FACILITY THAT WAS CLOSED AS A DIRECT RESULT OF THE COVID-19 STATE DISAS-
 TER  EMERGENCY  AND  SUCH  SCHOOL  OR FACILITY CARE WAS REQUIRED FOR THE
 PERSON TO WORK;
   (E) THE INDIVIDUAL WAS UNABLE TO REACH THEIR PLACE OF BUSINESS BECAUSE
 OF A QUARANTINE IMPOSED AS A DIRECT RESULT OF THE COVID-19 STATE  DISAS-
 TER EMERGENCY;
   (F) THE INDIVIDUAL WAS UNABLE TO REACH THEIR PLACE OF BUSINESS BECAUSE
 THE PERSON HAD BEEN ADVISED BY A HEALTH CARE PROVIDER TO SELF-QUARANTINE
 DUE TO CONCERNS RELATED TO COVID-19;
   (G)  THE  INDIVIDUAL  BECAME A MAJOR SOURCE OF INCOME OR MAJOR SUPPORT
 FOR A HOUSEHOLD BECAUSE THE HEAD OF  THE  HOUSEHOLD  DIED  AS  A  DIRECT
 RESULT OF COVID-19; OR
   (H)  THE INDIVIDUAL'S BUSINESS CLOSED AS A DIRECT RESULT OF THE COVID-
 19 STATE DISASTER EMERGENCY.
   (II) WITH RESPECT TO A BUSINESS, THAT:
   (A) THE BUSINESS WAS SUBJECT  TO  SEATING,  OCCUPANCY  OR  ON-PREMISES
 SERVICE  LIMITATIONS PURSUANT TO AN EXECUTIVE ORDER ISSUED BY THE GOVER-
 NOR OR MAYOR DURING THE COVID-19 PERIOD; OR
   (B) THE REVENUES OF THE BUSINESS DURING ANY THREE-MONTH PERIOD  WITHIN
 THE COVID-19 PERIOD WERE LESS THAN FIFTY PERCENT OF ITS REVENUES FOR THE
 SAME  PERIOD  IN TWO THOUSAND NINETEEN OR LESS THAN FIFTY PERCENT OF ITS
 AGGREGATE REVENUES FOR THE MONTHS OF  DECEMBER  TWO  THOUSAND  NINETEEN,
 JANUARY TWO THOUSAND TWENTY, AND FEBRUARY TWO THOUSAND TWENTY.
   (G)  "LANDLORD"  MEANS  AN  OWNER  OF COVERED PROPERTY OR SUCH OWNER'S
 AGENT.
   (H) "PERSONAL LIABILITY PROVISION" MEANS, WITH RESPECT TO A COMMERCIAL
 LEASE OR OTHER RENTAL AGREEMENT INVOLVING REAL PROPERTY AND TO  WHICH  A
 BUSINESS IS A PARTY AS TENANT, A TERM THAT PROVIDES FOR AN INDIVIDUAL TO
 BECOME  WHOLLY  OR PARTIALLY PERSONALLY LIABLE FOR AN OBLIGATION OF SUCH
 BUSINESS ARISING UNDER SUCH LEASE OR AGREEMENT UPON THE OCCURRENCE OF  A
 DEFAULT OR OTHER EVENT.
   2. PERSONAL LIABILITY PROVISIONS. NO PERSONAL LIABILITY PROVISION OF A
 COMMERCIAL  LEASE  OR OTHER RENTAL AGREEMENT INVOLVING REAL PROPERTY AND
 TO WHICH A BUSINESS IMPACTED BY COVID-19 IS A PARTY AS TENANT  SHALL  BE
 ENFORCED AGAINST AN INDIVIDUAL WHERE THE DEFAULT OR OTHER EVENT ALLOWING
 FOR SUCH ENFORCEMENT OCCURS DURING THE COVID-19 PERIOD.
   3.  COMMERCIAL  TENANT  HARASSMENT. (A) A LANDLORD SHALL NOT ENGAGE IN
 COMMERCIAL TENANT HARASSMENT. COMMERCIAL TENANT HARASSMENT SHALL BE  ANY
 ACT OR OMISSION BY OR ON BEHALF OF A LANDLORD THAT: (I) WOULD REASONABLY
 CAUSE A COMMERCIAL TENANT TO VACATE COVERED PROPERTY, OR TO SURRENDER OR
 WAIVE ANY RIGHTS UNDER A LEASE OR OTHER RENTAL AGREEMENT OR UNDER APPLI-
 CABLE  LAW  IN  RELATION  TO  SUCH  COVERED  PROPERTY; AND (II) INCLUDES

 A. 10457                            3
 
 THREATENING TO OR IMPLEMENTING A PERSONAL LIABILITY  PROVISION  THAT  IS
 NOT ENFORCEABLE PURSUANT TO THIS SECTION.
   (B)  A  LANDLORD'S  LAWFUL TERMINATION OF A TENANCY, LAWFUL REFUSAL TO
 RENEW OR EXTEND A LEASE OR OTHER RENTAL AGREEMENT, OR LAWFUL REENTRY AND
 REPOSSESSION OF THE COVERED PROPERTY  SHALL  NOT  CONSTITUTE  COMMERCIAL
 TENANT HARASSMENT FOR PURPOSES OF THIS SUBDIVISION.
   4.  PRIVATE  RIGHT  OF  ACTION.  (A)  A COMMERCIAL TENANT MAY BRING AN
 ACTION IN ANY COURT OF COMPETENT JURISDICTION FOR A CLAIM OF  COMMERCIAL
 TENANT  HARASSMENT.    IF A COURT OF COMPETENT JURISDICTION FINDS THAT A
 LANDLORD HAS ENGAGED IN COMMERCIAL TENANT HARASSMENT IN RELATION TO SUCH
 COMMERCIAL TENANT, THE COURT SHALL IMPOSE A CIVIL PENALTY IN  AN  AMOUNT
 NOT  LESS  THAN  TEN  THOUSAND  DOLLARS AND NOT MORE THAN FIFTY THOUSAND
 DOLLARS FOR EACH COVERED PROPERTY IN WHICH SUCH  COMMERCIAL  TENANT  HAS
 BEEN THE SUBJECT OF COMMERCIAL TENANT HARASSMENT AND MAY FURTHER:
   (I)  ISSUE  AN ORDER RESTRAINING THE LANDLORD FROM ENGAGING IN COMMER-
 CIAL TENANT HARASSMENT AND DIRECTING THE  LANDLORD  TO  ENSURE  THAT  NO
 FURTHER VIOLATION OCCURS; AND/OR
   (II) AWARD SUCH OTHER RELIEF AS THE COURT DEEMS APPROPRIATE, INCLUDING
 BUT  NOT  LIMITED  TO  INJUNCTIVE RELIEF, EQUITABLE RELIEF, COMPENSATORY
 DAMAGES, PUNITIVE DAMAGES  AND  REASONABLE  ATTORNEYS'  FEES  AND  COURT
 COSTS.
   (B)  THE  COMMERCIAL TENANT SHALL NOT BE RELIEVED OF THE OBLIGATION TO
 PAY ANY RENT FOR WHICH THE COMMERCIAL TENANT IS  OTHERWISE  LIABLE.  ANY
 MONETARY REMEDY AWARDED TO A COMMERCIAL TENANT PURSUANT TO THIS SUBDIVI-
 SION  SHALL BE REDUCED BY ANY AMOUNT OF DELINQUENT RENT OR OTHER SUM FOR
 WHICH A COURT FINDS SUCH COMMERCIAL TENANT IS LIABLE TO THE LANDLORD.
   (C) THIS SECTION DOES NOT LIMIT OR ABROGATE  ANY  CLAIM  OR  CAUSE  OF
 ACTION  A  PERSON  HAS UNDER COMMON LAW OR BY STATUTE. THE PROVISIONS OF
 THIS SECTION ARE IN ADDITION TO ANY SUCH COMMON LAW AND STATUTORY  REME-
 DIES.
   (D)  NOTHING  CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS CREATING
 ANY CAUSE OF ACTION FOR A COMMERCIAL TENANT'S INVITEE.
   § 2. This act shall take effect immediately.