S T A T E O F N E W Y O R K
________________________________________________________________________
3190
2021-2022 Regular Sessions
I N A S S E M B L Y
January 22, 2021
___________
Introduced by M. of A. EPSTEIN, GOTTFRIED, SIMON, CARROLL, STECK, FRON-
TUS, SEAWRIGHT, BARRON, PERRY, DICKENS, TAYLOR, BRONSON, RICHARDSON,
HUNTER, DE LA ROSA, KIM, BARNWELL, ANDERSON, ROZIC, KELLES -- read
once and referred to the Committee on Small Business
AN ACT to suspend rent payments for certain tenants in response to the
outbreak of coronavirus
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. For the purposes of this act:
(a) "actual income" means for a not-for-profit corporation employing
twenty-five or less full-time employees or full-time equivalent employ-
ees or for a small business incorporated and resident in this state,
independently owned and operated, not dominant in its field, and employs
twenty-five or less full-time employees or full-time equivalent employ-
ees, all revenue, including emergency federal, state or local assist-
ance, or any other form of income that may be used to pay rent, but
excluding restricted grants;
(b) "landlord" means the person or entity to whom a covered tenant
owes rent;
(c) "rent" means the amount charged in consideration for the use and
occupancy of real property pursuant to a written or oral rental agree-
ment or statute;
(d) "state of emergency" means the state of emergency declared by
executive order 202 that began on March 7, 2020 and any further amend-
ments or modifications, and as may be further extended pursuant to
section 28 of the executive law;
(e) "covered tenant" includes a tenant that is a not-for-profit corpo-
ration employing twenty-five or less full-time employees or full-time
equivalent employees, or a tenant that is a small business incorporated
and resident in this state, independently owned and operated, not domi-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02356-02-1
A. 3190 2
nant in its field, and employs twenty-five or less full-time employees
or full-time equivalent employees; and
(f) "covered period" means March 7, 2020 until the date on which none
of the provisions that closed or otherwise restricted public or private
businesses or places of public accommodation, or required postponement
or cancellation of all non-essential gatherings of individuals of any
size, for any reason in Executive Orders 202.3, 202.4, 202.5, 202.6,
202.7, 202.8, 202.10, 202.11, 202.13 or 202.14, as extended by Executive
Orders 202.28 and 202.31 and as further extended by any future Executive
Order, issued in response to the COVID-19 pandemic continue to apply in
the county in which the covered tenant is located.
§ 2. (a) (i) Notwithstanding any other provision of law, rule or regu-
lation to the contrary, any covered tenant in the state that has been
forced to close their place of business, or whose business activities
have been substantially curtailed resulting in a loss of income as a
result of government ordered restrictions in response to the outbreak of
coronavirus disease 2019 (COVID-19), shall be responsible for rent
payments up to twenty percent of the covered tenant's actual income for
the thirty days prior to the date such rent was due or one-third of
their contractual rent, whichever is less, per month for the duration of
the covered period through one hundred eighty days following the final
day of the covered period. A landlord of a covered tenant shall waive
twenty percent of the contractual rent per month for the duration of one
hundred eighty days following the final day of the covered period.
(ii) Where a covered tenant is authorized to pay an amount that is
less than their contractual or statutory rent pursuant to this act, the
covered tenant shall provide the landlord and the department of economic
development with a sworn affidavit affirming the covered tenant's actual
income for the thirty days prior to the date such rent was due for each
month for which the tenant is seeking a reduced payment of rent due to
loss of income as a result of government ordered restrictions in
response to the outbreak of coronavirus disease 2019 (COVID-19). Upon
the verification of such statement by the commissioner of the department
of economic development or his or her agent, such payment shall absolve
the covered tenant of any further obligation to pay rent and any differ-
ence between the rent that would have been contractually or statutorily
owed and the amount paid pursuant to this paragraph shall be waived,
except where a covered tenant later receives additional income, such
rent obligations shall be recalculated.
(iii) In a summary proceeding for the non-payment of rent under arti-
cle 7 of the real property actions and proceedings law, a covered tenant
may raise a payment made pursuant to this act as a defense to non-pay-
ment. If the amount of the covered tenant's actual income is in dispute,
the court shall review documentation of the covered tenant's income in
camera, unless otherwise deemed necessary by the court. Notwithstanding
any other provision of law to the contrary customary documentation of
income shall constitute prima facie evidence of the covered tenant's
actual income and shall be presumptively admissible in such summary
proceeding.
(b) Any covered tenant whose lease expires during the covered period
shall have the option of extending such lease under the terms existing
prior to the expiration of the lease for a period of up to one hundred
eighty days after the expiration of the state of emergency.
(c) Late fees, interest or other penalties shall not be collectable
for rent accrued during the existence of the state of emergency.
A. 3190 3
§ 3. (a) The commissioner of the department of economic development is
hereby authorized and directed to establish and implement an interim
commercial rent relief program to support covered tenants and landlords
impacted by the COVID-19 pandemic. Such program shall be provided at
least $500,000,000, including but not limited to monies that have been
allocated to the state of New York by the federal government.
(b) Notwithstanding any other law to the contrary, a landlord that has
lost rental income pursuant to this act and has not been fully compen-
sated by emergency federal, state or local assistance, may apply to the
department of economic development for relief. The commissioner of the
department of economic development may, upon satisfaction of the veraci-
ty of the landlord's application and to the extent possible, authorize
the distribution of funds, including but not limited to any unrestricted
federal emergency assistance monies provided to the state that have not
otherwise been obligated, to any such landlord in the amount of the
balance of rental income lost after the twenty percent of the contractu-
al rent waived by the landlord and any amount paid by a covered tenant
pursuant to section two of this act.
(c) The commissioner of the department of economic development shall
promulgate rules and regulations to effectuate the provisions of this
act. The regulations promulgated pursuant to this subdivision shall
include provisions designed to ensure full access to the services and
financial assistance required under this section by individuals for whom
English is not the primary language.
§ 4. Notwithstanding any other law to the contrary, no court shall
accept for filing a petition to commence a new summary proceeding to
recover possession of real property under article 7 of the real property
actions and proceedings law for non-payment of rent due to loss of
income as a result of government ordered restrictions in response to the
outbreak of coronavirus disease 2019 (COVID-19) for at least thirty days
following the expiration of the state of emergency; provided any statute
of limitations applicable to such summary proceedings shall be tolled
for thirty days; provided further, however, that the tenant shall
provide a sworn affidavit affirming the covered tenant's loss of income
as a result of government ordered restrictions in response to the
outbreak of coronavirus disease 2019 (COVID-19). In no event shall late
or reduced rent payments during the state of emergency constitute the
basis for a summary holdover proceeding for the chronic nonpayment of
rent.
§ 5. This act shall take effect immediately and shall be deemed to
have been in full force and effect on and after March 7, 2020.