Regular Session - May 3, 2022
2938
1 NEW YORK STATE SENATE
2
3
4 THE STENOGRAPHIC RECORD
5
6
7
8
9 ALBANY, NEW YORK
10 May 3, 2022
11 3:39 p.m.
12
13
14 REGULAR SESSION
15
16
17
18 SENATOR JAMAAL T. BAILEY, Acting President
19 ALEJANDRA N. PAULINO, ESQ., Secretary
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21
22
23
24
25
2939
1 P R O C E E D I N G S
2 ACTING PRESIDENT BAILEY: The
3 Senate will come to order.
4 I ask everyone present to please
5 rise and recite the Pledge of Allegiance.
6 (Whereupon, the assemblage recited
7 the Pledge of Allegiance to the Flag.)
8 ACTING PRESIDENT BAILEY: In the
9 absence of clergy, let us bow our heads in a
10 moment of silent reflection or prayer.
11 (Whereupon, the assemblage respected
12 a moment of silence.)
13 ACTING PRESIDENT BAILEY: The
14 reading of the Journal.
15 THE SECRETARY: In Senate, Monday,
16 May 2, 2022, the Senate met pursuant to
17 adjournment. The Journal of Sunday, May 1, 2022,
18 was read and approved. On motion, the Senate
19 adjourned.
20 ACTING PRESIDENT BAILEY: Without
21 objection, the Journal stands approved as read.
22 Presentation of petitions.
23 Messages from the Assembly.
24 The Secretary will read.
25 THE SECRETARY: Senator
2940
1 Reichlin-Melnick moves to discharge, from the
2 Committee on Housing, Construction and Community
3 Development, Assembly Bill Number 4620 and
4 substitute it for the identical Senate Bill 7479,
5 Third Reading Calendar 457.
6 ACTING PRESIDENT BAILEY: So
7 ordered.
8 THE SECRETARY: Senator Sanders
9 moves to discharge, from the Committee on
10 Judiciary, Assembly Bill Number 7737B and
11 substitute it for the identical Senate Bill
12 5473D, Third Reading Calendar 704.
13 ACTING PRESIDENT BAILEY: So
14 ordered.
15 THE SECRETARY: Senator Kennedy
16 moves to discharge, from the Committee on
17 Transportation, Assembly Bill Number 9161 and
18 substitute it for the identical Senate Bill
19 Number 8272, Third Reading Calendar 914.
20 ACTING PRESIDENT BAILEY: So
21 ordered.
22 Messages from the Governor.
23 Reports of standing committees.
24 Reports of select committees.
25 Communications and reports from
2941
1 state officers.
2 Motions and resolutions.
3 Senator Liu.
4 SENATOR LIU: Mr. President, on
5 behalf of Senator Kaplan, on page number 33 I
6 offer the following amendments to Calendar Number
7 765, Senate Print Number 7658, and ask that the
8 said bill retain its place on the Third Reading
9 Calendar.
10 ACTING PRESIDENT BAILEY: The
11 amendments are received, and the bill shall
12 retain its place on the Third Reading Calendar.
13 Senator Liu.
14 SENATOR LIU: Mr. President, I also
15 offer, on page number 41, the following
16 amendments to Calendar Number 837, Senate Print
17 Number 6195A, by Senator Persaud, and ask that
18 the said bill retain its place on the Third
19 Reading Calendar.
20 ACTING PRESIDENT BAILEY: The
21 amendments are received, and the bill will retain
22 its place on Third Reading Calendar.
23 Senator Liu.
24 SENATOR LIU: Mr. President,
25 finally, I move to amend Senate Bill Number 7862A
2942
1 by striking out the amendments made on May 2nd
2 and restoring it to its original print number,
3 7862. It's by Senator Bailey.
4 ACTING PRESIDENT BAILEY: So
5 ordered. The bill will retain its place on the
6 Third Reading Calendar.
7 Senator Liu.
8 SENATOR LIU: Mr. President, I move
9 to adopt the Resolution Calendar, with the
10 exception of Resolution 2390.
11 ACTING PRESIDENT BAILEY: All those
12 in favor of adopting the Resolution Calendar,
13 with the exception of Resolution 2390, please
14 signify by saying aye.
15 (Response of "Aye.")
16 ACTING PRESIDENT BAILEY: Opposed,
17 nay.
18 (No response.)
19 ACTING PRESIDENT BAILEY: The
20 Resolution Calendar is adopted.
21 Senator Liu.
22 SENATOR LIU: Mr. President, please
23 take up previously adopted Resolution 1348, by
24 Senator Persaud, read that resolution title only,
25 and please recognize Senator Persaud on the
2943
1 resolution.
2 ACTING PRESIDENT BAILEY: The
3 Secretary will read.
4 THE SECRETARY: Senate Resolution
5 1348, by Senator Persaud, memorializing Governor
6 Kathy Hochul to proclaim May 2022 as Older
7 Americans Month in the State of New York, in
8 conjunction with the observance of National Older
9 Americans Month.
10 ACTING PRESIDENT BAILEY: Senator
11 Persaud on the resolution.
12 SENATOR PERSAUD: Thank you,
13 Mr. President.
14 This month, as we celebrate Older
15 Americans Month, I want us all to remember the
16 contributions that our seniors have given to our
17 society.
18 In my district, I am fortunate to
19 have a significant number of active adults, as we
20 call them, active adults that when I walk into a
21 senior center -- there's one in particular who is
22 on Facebook Live. I remember the first day she
23 said to me, "Senator Persaud, are you ready?
24 We're going live." And I'm like, "Live where?"
25 (Laughter.)
2944
1 SENATOR PERSAUD: She says
2 "Facebook Live. Here you go," and she starts
3 speaking. And every time I go to that center,
4 that's what she does.
5 And then I'll go to another center,
6 and there -- you know, people tend to think that
7 our older adults are not technologically savvy.
8 Well, they are. We just have to give them the
9 access to the technology and they will run with
10 it.
11 And those are the kinds of seniors
12 that we're celebrating today, seniors who they
13 have given back, given everything to our society,
14 and now they just want to relax and enjoy. And
15 we have to give them the opportunities.
16 When I talk about seniors, I
17 remember my grandfather, who passed at the age of
18 95, who loved to remind us -- he was very, very
19 active, and he loved to remind us that he could
20 out-walk all of us. And also he never wore
21 glasses in his life, and said "I can read the
22 Bible," you know, "without glasses."
23 And my grandmother, who passed at
24 101 and five months and would always tell us --
25 she could tell us everything that happened from
2945
1 the day of her birth, without hesitation.
2 And so all of us have a lot to look
3 forward to as we grow older. You know, so let us
4 remember the contributions that our seniors have
5 given.
6 And I just want to remind us all of
7 a quote by George Bernard Shaw, to sort of let us
8 all remember when we're -- you know, when we're
9 not having such a good day and we're fussing
10 about things, to remember you don't stop laughing
11 when you grow old, you grow old when you stop
12 laughing.
13 So remember, keep laughing and enjoy
14 our seniors.
15 Thank you, Mr. President.
16 ACTING PRESIDENT BAILEY: Thank
17 you, Senator Persaud.
18 Senator May on the resolution.
19 SENATOR MAY: Thank you,
20 Mr. President.
21 And thank you to Senator Persaud for
22 bringing this resolution.
23 The 2022 theme of Older Americans
24 Month is "Age My Way," an opportunity for all of
25 us to explore the many ways older adults can
2946
1 remain in and be active within their communities.
2 And Senator Persaud's examples were
3 great. I want to bring two additional ones. One
4 is a wonderful program that's administered by
5 Interfaith Works in Syracuse, called the Senior
6 Companions Program. I know there are many across
7 the state, but this one I've had the pleasure to
8 be able to visit.
9 And this is a program where they
10 pair volunteers, who are seniors themselves, with
11 people who are facing isolation, whether it's in
12 a nursing home or even in their own homes. And
13 they pair people up, and both the volunteer and
14 the person they are volunteering for end up with
15 a new friend and a much more active perspective
16 on life.
17 And it's really beautiful to see the
18 volunteers with the people that they are
19 supposedly helping, because they are both helping
20 each other in beautiful ways.
21 I also want to mention Ruth Colvin,
22 who came here in 2019 as my awardee for the
23 Senior of the Year, and she is now 105 years old,
24 still playing golf, still going to the gym.
25 She's -- 50 years ago she started an
2947
1 organization called Pro Literacy that became a
2 worldwide adult literacy organization. It had
3 fallen on hard times in recent years, so she is
4 now involved in restarting this really important
5 nonprofit literacy organization -- again, at the
6 age of 105.
7 So there are people around us who
8 are inspiring and are showing us the way. And
9 all of us are aging, and this idea of "Aging My
10 Way" I think is a beautiful image to keep in our
11 minds, especially when we look at people around
12 us and pay attention to what other people are
13 doing to show us the way.
14 So again, thank you for bringing
15 this resolution, Senator Persaud.
16 I vote aye.
17 ACTING PRESIDENT BAILEY: Thank
18 you, Senator May.
19 Senator Serino on the resolution.
20 SENATOR SERINO: Thank you,
21 Mr. President.
22 And thank you, Senator Persaud, for
23 bringing this resolution forward, and I loved
24 listening to you speak.
25 You know, I rise today to honor our
2948
1 older Americans, and especially our New Yorkers,
2 the residents who have helped really build our
3 state. It's our older New Yorkers whose work
4 over the years has shaped the communities that we
5 know and love, and we owe them a tremendous debt
6 of gratitude.
7 As we rise to honor these
8 trailblazing New Yorkers and all older Americans,
9 I think it's important that we also recognize the
10 many challenges that so many of them face today,
11 with rising costs on everything from electricity
12 to home heating oil, groceries to gasoline, it's
13 really our older New Yorkers, many of whom are
14 living on fixed incomes, who are feeling the
15 impacts each and every day.
16 If we want to honor our seniors, we
17 have to start by ensuring that they have the
18 resources that they need to age with dignity at
19 home in the communities that they know and love.
20 That starts by taking real action to
21 bring down their cost of living, holding the line
22 on their property taxes, and ensuring they have
23 access to quality healthcare and bolstering
24 age-related services like home care.
25 It also includes ensuring that state
2949
1 policies that we know have put our seniors in
2 harm's way are never implemented again. That
3 means investigating the state's handling of the
4 pandemic as it relates to nursing homes, where
5 over 15,000 vulnerable older New Yorkers died
6 during the pandemic.
7 It means making a promise to older
8 New Yorkers that their needs will always be a
9 priority in this house, and ensuring that they
10 will never be an afterthought in the State of
11 New York ever again. It's one thing to proclaim
12 that we are an age-friendly state or to name a
13 month in our seniors' honor, but it's another
14 thing altogether to take real action to provide
15 the relief that they are so in need of.
16 You know, our seniors grew up in a
17 time when they never asked for anything, any
18 help. But we can make a real difference for
19 older New Yorkers during these challenging times
20 by making their needs a top priority.
21 Thank you, Mr. President.
22 ACTING PRESIDENT BAILEY: Thank
23 you, Senator Serino.
24 The resolution was previously
25 adopted on January 11th.
2950
1 Senator Liu.
2 SENATOR LIU: Mr. President, please
3 take up previously adopted Resolution 2051, by
4 Senator Rivera, read that resolution title only,
5 and recognize Senator Rivera on the resolution.
6 ACTING PRESIDENT BAILEY: The
7 Secretary will read.
8 THE SECRETARY: Senate Resolution
9 2051, by Senator Rivera, memorializing Governor
10 Kathy Hochul to proclaim May 2022 as Huntington's
11 Disease Awareness Month in the State of New York.
12 ACTING PRESIDENT BAILEY: Senator
13 Rivera on the resolution.
14 SENATOR RIVERA: Thank you,
15 Mr. President.
16 This resolution is to memorialize
17 Huntington's Awareness Month. It's basically to
18 ask the Governor to make May Huntington's Disease
19 Awareness Month.
20 Now, for folks who might not know,
21 Huntington's Disease is a degenerative brain
22 disorder. It is sadly noncurable. It can be
23 treated, but it cannot be cured. And it is rare,
24 but more than a quarter of a million Americans
25 actually suffer from Huntington's Disease. And
2951
1 we have to also think about the family members
2 and caregivers who are impacted by folks who have
3 this condition.
4 It is imperative that we bring
5 greater awareness to this disease, and so that's
6 why I'm happy to support this resolution and also
7 to visit -- as many folks -- as we know, the last
8 couple of years we've been quite lonely up here;
9 we haven't had many folks come and visit us.
10 But sometimes we do have some
11 visitors, and I'm glad to welcome two of them
12 today. With us are Pat Schuler and Jenny Hart.
13 Both of them are part of the Albany Chapter of
14 the Huntington's Disease Society of America.
15 They provide service, Mr. President,
16 for families and caregivers for folks who are
17 stricken by Huntington's disease, all the way
18 from Kingston all the way up to the Canadian
19 border. So certainly many of my colleagues are
20 served by the fine work that these folks do and
21 their organization does.
22 So I welcome them here today. I
23 thank you, Mr. President, for giving me the
24 opportunity to talk about bringing awareness to
25 this important topic.
2952
1 Thank you so much, and welcome to
2 Albany.
3 ACTING PRESIDENT BAILEY: To our
4 guests, I welcome you on behalf of the Senate.
5 We extend to you all the privileges and
6 courtesies of the house.
7 Please rise and be recognized.
8 (Standing ovation.)
9 ACTING PRESIDENT BAILEY: The
10 resolution was previously adopted on March 15th.
11 Senator Liu.
12 SENATOR LIU: Mr. President, please
13 take up Resolution 2085, by Senator Kennedy, read
14 that resolution title only, and recognize Senator
15 Kennedy on the resolution.
16 ACTING PRESIDENT BAILEY: The
17 Secretary will read.
18 THE SECRETARY: Senate Resolution
19 2085, by Senator Kennedy, mourning the death of
20 Barbara Jo Hard, devoted educator, loving mother
21 and grandmother, and distinguished citizen.
22 ACTING PRESIDENT BAILEY: Senator
23 Kennedy on the resolution.
24 SENATOR KENNEDY: Thank you,
25 Mr. President.
2953
1 It is an extraordinary honor that I
2 stand here today to honor the life and the legacy
3 of one of the greatest that's ever come out of
4 Western New York, Barbara Jo Hard, who passed
5 away on February 3rd of this year.
6 She was born in South Buffalo, she
7 attended South Park High School. She went to
8 Buffalo State College, where she majored in
9 exceptional education, and there began her
10 extraordinary career helping other people.
11 Her life was filled with love and
12 compassion and caring and a spirit of giving to
13 the community. Back in the early 1980s, she
14 founded what's become one of the greatest
15 educational institutions in Western New York and
16 arguably the state, helping individuals with
17 disabilities, Bornhava Preschool. Bornhava
18 Preschool is a private preschool that has become
19 renowned for its excellent education programs.
20 I actually had the opportunity to
21 work at Bornhava in my previous life as an
22 occupational therapist. On a personal note, I
23 met my wife there.
24 And Barbara Jo, though, aside from
25 having such an impact on bringing my wife and I
2954
1 together and my future family, she had an impact
2 on thousands of lives, thousands of families'
3 children in our community over decades that she
4 served as the executive director, where she
5 treated these children that came through -- some
6 of the most vulnerable in our entire community --
7 as if they were her own.
8 And because of that, and treating
9 those children as her own family and the workers
10 at Bornhava as her own family, she had this
11 spirit about her. When you'd see her, she'd
12 always have a smile. She'd have a positive
13 attitude. She knew how to engage with people and
14 really knew how to fight for what she believed
15 in, and that was her work. And that was
16 understanding that the work done at Bornhava
17 Preschool and helping these kids with
18 disabilities would help to change the world.
19 But she didn't stop there. Back in
20 the '80s when the Vietnam War had just concluded
21 less than a decade earlier, Barbara Jo Hard went
22 to North Vietnam and she brought two young men
23 into her life, that lived with her and
24 established their lives in Buffalo: Jeffrey
25 Nguyen and Quang Don.
2955
1 A couple of years later, she went
2 back to Vietnam and she adopted two more young
3 boys from the war-ravaged countryside, Nguyen Tu
4 and Don Vu. And she wasn't done there. She went
5 back and then she brought two others over: Don
6 Vu's brother Tu and sister Ahn.
7 And then when folks thought that
8 she's done so much and, you know what, most
9 people would have sat back and taken a rest, she
10 said, No, I'm not finished. And so she spread
11 her wings this time across the Atlantic to
12 post-Soviet Union Communist Cold War Russia,
13 where she adopted two young girls, Marina and
14 Maggie.
15 Eight children she brought into her
16 life and was the mother of, raising them to be
17 wonderful people giving back to the community and
18 who have contributed so much.
19 I can tell you she acted as a beacon
20 of love, of light, and of hope to all those that
21 crossed her path. And I think, Mr. President, we
22 can all learn a lot of how Barbara Jo Hard lived
23 her life. And while she's no longer with us, her
24 memory will undoubtedly live on with the many
25 children and individuals she took under her wing,
2956
1 encouraging them to grow and become all that they
2 could possibly be and to realize their greatest
3 potential.
4 And so it's for this reason and so
5 many others that I'm proud to honor the life and
6 contributions of Barbara Jo Hard here on the
7 Senate floor here today. May all of those who
8 love her and continue to feel her presence in the
9 lives that they live remember her as the
10 wonderful individual that she was.
11 May Barbara Jo Hard rest in peace.
12 Thank you, Mr. President.
13 ACTING PRESIDENT BAILEY: Thank
14 you, Senator Kennedy.
15 The resolution was previously
16 adopted on March 22nd.
17 Senator Liu.
18 SENATOR LIU: Mr. President, please
19 take up Resolution 2390, by Senator Gounardes,
20 read that resolution and recognize Senator -- and
21 recognize Senator Gounardes on this resolution.
22 ACTING PRESIDENT BAILEY: The
23 Secretary will read.
24 THE SECRETARY: Senate Resolution
25 2390, by Senator Gounardes, memorializing
2957
1 Governor Kathy Hochul to proclaim April 24, 2022,
2 as Armenian Genocide Remembrance Day in the State
3 of New York.
4 ACTING PRESIDENT BAILEY: Senator
5 Gounardes on the resolution.
6 SENATOR GOUNARDES: Thank you,
7 Mr. President.
8 It's very fitting that we are -- I'm
9 here today to talk about this resolution calling
10 on the Governor to commemorate April 24th as
11 Armenian Genocide Awareness Day, Remembrance Day,
12 a day after Senator Kaplan was on this floor
13 introducing her resolution for Holocaust
14 Remembrance Day, because the 20th century has
15 seen some of the greatest atrocities known in the
16 history of mankind, where there were attempts to
17 wipe out and fully exterminate entire populations
18 of people.
19 And even a generation before the
20 terrible atrocities happened during the Holocaust
21 in Nazi Germany, the Ottoman Empire engaged in a
22 systematic program to exterminate the Armenians
23 and the Greeks and the Pontians and the Assyrians
24 and the Christian minorities that were living in
25 the Ottoman Empire, living in modern-day Turkey.
2958
1 And it was because of
2 ultra-nationalist Turkish elements in the Ottoman
3 Empire that it began in 1915 to systematically
4 wipe out all of these peoples and all of these
5 communities. Over the course of eight years,
6 1.5 million Armenians were exterminated because
7 of the Turkish Ottoman genocide program,
8 800,000 Greeks exterminated by the Turkish
9 Ottoman genocide program; hundreds of thousands
10 of Assyrians and Pontics and other Christian
11 minorities terminated, killed, slaughtered,
12 displaced. Churches destroyed. Communities lit
13 on fire. In 1923, the Ottoman Empire set fire to
14 the entire city of Smyrna, in Asia Minor, in an
15 attempt to kill everyone living there.
16 There is an awful, awful legacy that
17 we have an obligation to not just never forget,
18 but to proactively remember.
19 I want to read the words of Henry
20 Morgenthau -- who had been the U.S. ambassador to
21 the Ottoman Empire -- in 1918 when he was calling
22 on the world to stand up for the truth: "Will
23 the outrageous terrorizing, the cruel torturing,
24 the driving of women into harems, the debauchery
25 of innocent girls, the sale of many of them at 80
2959
1 cents each, the murdering of hundreds of
2 thousands and the deportation to and starvation
3 in the deserts of other hundreds of thousands,
4 the destruction of hundreds of villages and
5 cities, will the willful execution of this whole
6 devilish scheme to annihilate the Armenian,
7 Greek and Syrian Christians of Turkey, will all
8 of this go unpunished?"
9 Sadly, Mr. President, at that time
10 it did go unpunished. But we are here today
11 nearly a century later to be able to say that we
12 will never forget what happened to those
13 communities, and that we will do everything in
14 our power to put their memory at the fore of our
15 consciousness. And as we combat this rising wave
16 and tide of nationalism and hatred and bigotry
17 against ethnic minorities regardless of where
18 they are or who they are or where they're from,
19 we have an obligation to stand up and protect
20 them.
21 I'm incredibly proud that last year
22 on this date President Biden officially
23 recognized the Armenian genocide as an official
24 presidential proclamation. It took a century
25 worth of organizating to get our country to that
2960
1 point. And I'm incredibly proud to stand on this
2 floor today to memorialize that event, to pay
3 tribute to the millions whose lives were taken
4 from us, and to say defiantly that we will never
5 forget.
6 Thank you.
7 ACTING PRESIDENT PERSAUD: The
8 question is on the resolution. All in favor
9 signify by saying aye.
10 (Response of "Aye.")
11 ACTING PRESIDENT PERSAUD: Opposed,
12 nay.
13 (No response.)
14 ACTING PRESIDENT PERSAUD: The
15 resolution is adopted.
16 Senator Liu.
17 SENATOR LIU: Madam President, at
18 the request of the sponsors, the resolutions are
19 open for cosponsorship.
20 ACTING PRESIDENT PERSAUD: The
21 resolutions are open for cosponsorship. Should
22 you choose not to be a cosponsor, please notify
23 the desk.
24 Senator Liu.
25 SENATOR LIU: Madam President,
2961
1 please take up the reading of the calendar.
2 ACTING PRESIDENT PERSAUD: The
3 Secretary will read.
4 THE SECRETARY: Calendar Number 82,
5 Senate Print 6373B, by Senator Savino, an act to
6 amend the Workers' Compensation Law.
7 ACTING PRESIDENT PERSAUD: Read the
8 last section.
9 THE SECRETARY: Section 2. This
10 act shall take effect on the first of January.
11 ACTING PRESIDENT PERSAUD: Call the
12 roll.
13 (The Secretary called the roll.)
14 ACTING PRESIDENT PERSAUD: Announce
15 the results.
16 THE SECRETARY: In relation to
17 Calendar 82, those Senators voting in the
18 negative are Senators Akshar, Borrello, Boyle,
19 Gallivan, Griffo, Helming, Jordan, Lanza,
20 Martucci, Mattera, Oberacker, O'Mara, Ortt,
21 Palumbo, Rath, Ritchie, Serino, Stec, Tedisco and
22 Weik.
23 Ayes, 42. Nays, 20.
24 ACTING PRESIDENT PERSAUD: The bill
25 is passed.
2962
1 THE SECRETARY: Calendar Number
2 214, Senate Print 1565, by Senator Sanders, an
3 act to amend the Banking Law and the Penal Law.
4 ACTING PRESIDENT PERSAUD: Read the
5 last section.
6 THE SECRETARY: Section 11. This
7 act shall take effect on the 30th day after it
8 shall have become a law.
9 ACTING PRESIDENT PERSAUD: Call the
10 roll.
11 (The Secretary called the roll.)
12 ACTING PRESIDENT PERSAUD: Announce
13 the results.
14 THE SECRETARY: In relation to
15 Calendar 214, those Senators voting in the
16 negative are Senators Akshar, Borrello, Boyle,
17 Gallivan, Griffo, Helming, Jordan, Lanza,
18 Martucci, Mattera, Oberacker, O'Mara, Ortt,
19 Palumbo, Rath, Ritchie, Serino, Stec, Tedisco and
20 Weik.
21 Ayes, 42. Nays, 20.
22 ACTING PRESIDENT PERSAUD: The bill
23 is passed.
24 THE SECRETARY: Calendar Number
25 457, Assembly Print Number 4620, by
2963
1 Assemblymember Zebrowski, an act to amend the
2 Real Property Actions and Proceedings Law.
3 ACTING PRESIDENT PERSAUD: Read the
4 last section.
5 THE SECRETARY: Section 2. This
6 act shall take effect immediately.
7 ACTING PRESIDENT PERSAUD: Call the
8 roll.
9 (The Secretary called the roll.)
10 ACTING PRESIDENT PERSAUD: Senator
11 Borrello to explain his vote.
12 SENATOR BORRELLO: Thank you,
13 Madam President.
14 I think this is another example when
15 we are going to unfairly burden our
16 state-chartered banks with a fee that they should
17 not have to pay.
18 Quite frankly, if condominium owners
19 have their reserves properly funded, they should
20 be able to afford -- as unfortunate as it might
21 be -- to absorb some of those fees until these
22 properties, which are usually quite highly
23 valued, can be sold and those fees can be made
24 whole.
25 And in the meantime, our
2964
1 state-chartered banks, the only ones that are
2 impacted by this, that only account for roughly
3 20 percent of the mortgages in New York State,
4 are going to be burdened with this unfair bill,
5 sadly.
6 And what that means is we are going
7 to have more of our community banks, the people
8 that will lend when others will not, be burdened
9 with higher costs and ultimately facing the idea
10 of leaving the state-chartered bank status and
11 becoming chartered in some other way.
12 So I am strongly opposed to this
13 because of it once again unfairly targeting our
14 state-chartered banks.
15 Thank you.
16 ACTING PRESIDENT PERSAUD: Senator
17 Borrello to be recorded in the negative.
18 Announce the results.
19 THE SECRETARY: In relation to
20 Calendar Number 457, those Senators voting in the
21 negative are Senators Akshar, Borrello, Boyle,
22 Gallivan, Griffo, Helming, Jordan, Lanza,
23 Martucci, Mattera, Oberacker, O'Mara, Ortt,
24 Palumbo, Rath, Ritchie, Serino, Stec, Tedisco and
25 Weik.
2965
1 Ayes, 42. Nays, 20.
2 ACTING PRESIDENT PERSAUD: The bill
3 is passed.
4 THE SECRETARY: Calendar Number
5 497, Senate Print 2143A, by Senator Kavanagh, an
6 act to amend the Banking Law.
7 SENATOR LANZA: Lay it aside.
8 ACTING PRESIDENT PERSAUD: Lay it
9 aside.
10 THE SECRETARY: Calendar Number
11 703, Senate Print 5472, by Senator Hoylman, an
12 act to amend the Real Property Law.
13 ACTING PRESIDENT PERSAUD: Read the
14 last section.
15 THE SECRETARY: Section 5. This
16 act shall take effect on the 180th day after it
17 shall have become a law.
18 ACTING PRESIDENT PERSAUD: Call the
19 roll.
20 (The Secretary called the roll.)
21 ACTING PRESIDENT PERSAUD: Announce
22 the results.
23 THE SECRETARY: In relation to
24 Calendar Number 703, those Senators voting in the
25 negative are Senators Akshar, Borrello, Boyle,
2966
1 Griffo, Helming, Jordan, Lanza, Martucci,
2 Mattera, Oberacker, O'Mara, Ortt, Palumbo, Rath,
3 Ritchie, Serino, Stec, Tedisco and Weik.
4 Ayes, 43. Nays, 19.
5 ACTING PRESIDENT PERSAUD: The bill
6 is passed.
7 THE SECRETARY: Calendar Number
8 704, Assembly Print Number 7737B, by
9 Assemblymember Weinstein, an act to amend the
10 Real Property Actions and Proceedings Law.
11 SENATOR LANZA: Lay it aside.
12 ACTING PRESIDENT PERSAUD: Lay it
13 aside.
14 THE SECRETARY: Calendar Number
15 739, Senate Print 8540, by Senator Griffo, an act
16 to amend the Public Officers Law.
17 ACTING PRESIDENT PERSAUD: Read the
18 last section.
19 THE SECRETARY: Section 2. This
20 act shall take effect immediately.
21 ACTING PRESIDENT PERSAUD: Call the
22 roll.
23 (The Secretary called the roll.)
24 ACTING PRESIDENT PERSAUD: Announce
25 the results.
2967
1 THE SECRETARY: Ayes, 62.
2 ACTING PRESIDENT PERSAUD: The bill
3 is passed.
4 THE SECRETARY: Calendar Number
5 773, Senate Print 7483, by Senator Brouk, an act
6 to amend the Environmental Conservation Law and
7 the State Law.
8 ACTING PRESIDENT PERSAUD: Read the
9 last section.
10 THE SECRETARY: Section 5. This
11 act shall take effect immediately.
12 ACTING PRESIDENT PERSAUD: Call the
13 roll.
14 (The Secretary called the roll.)
15 ACTING PRESIDENT PERSAUD: Announce
16 the results.
17 THE SECRETARY: Ayes, 62.
18 ACTING PRESIDENT PERSAUD: The bill
19 is passed.
20 THE SECRETARY: Calendar Number
21 797, Senate Print 7417, by Senator Tedisco, an
22 act to amend the Public Officers Law.
23 ACTING PRESIDENT PERSAUD: Read the
24 last section.
25 THE SECRETARY: Section 2. This
2968
1 act shall take effect immediately.
2 ACTING PRESIDENT PERSAUD: Call the
3 roll.
4 (The Secretary called the roll.)
5 ACTING PRESIDENT PERSAUD: Announce
6 the results.
7 THE SECRETARY: Ayes, 62.
8 ACTING PRESIDENT PERSAUD: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 802, Senate Print 1288A, by Senator Brooks, an
12 act to amend the Executive Law.
13 ACTING PRESIDENT PERSAUD: Read the
14 last section.
15 THE SECRETARY: Section 2. This
16 act shall take effect on the 120th day after it
17 shall have become a law.
18 ACTING PRESIDENT PERSAUD: Call the
19 roll.
20 (The Secretary called the roll.)
21 ACTING PRESIDENT PERSAUD: Announce
22 the results.
23 THE SECRETARY: Ayes, 62.
24 ACTING PRESIDENT PERSAUD: The bill
25 is passed.
2969
1 THE SECRETARY: Calendar Number
2 803, Senate Print 1378A, by Senator Brooks, an
3 act to amend the Real Property Tax Law.
4 ACTING PRESIDENT PERSAUD: Read the
5 last section.
6 THE SECRETARY: Section 2. This
7 act shall take effect on the second of January.
8 ACTING PRESIDENT PERSAUD: Call the
9 roll.
10 (The Secretary called the roll.)
11 ACTING PRESIDENT PERSAUD: Announce
12 the results.
13 THE SECRETARY: Ayes, 62.
14 ACTING PRESIDENT PERSAUD: The bill
15 is passed.
16 THE SECRETARY: Calendar Number
17 804, Senate Print 2918A, by Senator Addabbo, an
18 act to amend the Real Property Tax Law.
19 ACTING PRESIDENT PERSAUD: Read the
20 last section.
21 THE SECRETARY: Section 2. This
22 act shall take effect immediately.
23 ACTING PRESIDENT PERSAUD: Call the
24 roll.
25 (The Secretary called the roll.)
2970
1 ACTING PRESIDENT PERSAUD: Announce
2 the results.
3 THE SECRETARY: Ayes, 62.
4 ACTING PRESIDENT PERSAUD: The bill
5 is passed.
6 THE SECRETARY: Calendar Number
7 805, Senate Print 3402, by Senator Bailey, an act
8 to amend the Real Property Tax Law.
9 ACTING PRESIDENT PERSAUD: Read the
10 last section.
11 THE SECRETARY: Section 2. This
12 act shall take effect on the first of January.
13 ACTING PRESIDENT PERSAUD: Call the
14 roll.
15 (The Secretary called the roll.)
16 ACTING PRESIDENT PERSAUD: Senator
17 Bailey to explain his vote.
18 SENATOR BAILEY: Thank you,
19 Madam President.
20 You know, in this chamber under the
21 leadership of Andrea Stewart-Cousins, we don't
22 just celebrate veterans on Memorial Day and
23 Veterans Day and when they come up -- we
24 celebrate them the right way to do it, via
25 policy.
2971
1 This piece of legislation would
2 offer qualified veterans an extra property tax
3 exemption. Because if you have two qualified
4 veterans living in the same household and they
5 have both served our country incredibly well,
6 there should be no reason why only one of their
7 service -- only one member of their household's
8 service counts towards a property tax exemption.
9 If both of them have put their lives
10 on the line for our country, if both of them have
11 put their body at risk for our country, then the
12 least we can do is grant each of their respective
13 terms of services and their respective service in
14 our great armed forces, in our military as well.
15 So I just want to thank our
16 leadership for putting this together and my
17 colleagues for voting in support of this bill. I
18 will be voting in the affirmative,
19 Madam President.
20 ACTING PRESIDENT PERSAUD: Senator
21 Bailey to be recorded in the affirmative.
22 Announce the results.
23 THE SECRETARY: Ayes, 62.
24 ACTING PRESIDENT PERSAUD: The bill
25 is passed.
2972
1 THE SECRETARY: Calendar Number
2 823, Senate Print 8500, by Senator Bailey, an act
3 to amend the Private Housing Finance Law.
4 ACTING PRESIDENT PERSAUD: Read the
5 last section.
6 THE SECRETARY: Section 2. This
7 act shall take effect on the 180th day after it
8 shall have become a law.
9 ACTING PRESIDENT PERSAUD: Call the
10 roll.
11 (The Secretary called the roll.)
12 ACTING PRESIDENT PERSAUD: Senator
13 Bailey to explain his vote.
14 SENATOR BAILEY: Madam President,
15 it's been a long time since you've heard from me.
16 (Laughter.)
17 SENATOR BAILEY: Again, in this
18 theme of making sure that our veterans are taken
19 care of well beyond the scope of their service,
20 many of us on both sides of the aisle, we
21 indicate that housing should be a human right.
22 And if you have paid your debt to
23 society as a veteran and you're doing things that
24 many of us could have never done, never thought
25 of doing, the least we can do is do our best to
2973
1 make sure that you have somewhere habitable to
2 live.
3 So when it comes to preferences and
4 waiting lists for housing, we should make sure
5 that there's no confusion about who is a veteran
6 when it's time for these waiting lists.
7 When it comes to Mitchell-Lama, when
8 it comes to a number of different housing waiting
9 lists, we often confuse it so that we -- so we're
10 not exactly understanding that our veterans that
11 have done so much, they deserve at least a little
12 checkbox next to their name for us so when we
13 look at that list, we can see that they've served
14 our country incredibly well.
15 So, Madam President, I thank you for
16 allowing me the opportunity to speak on the
17 resolution, and I appreciate all my colleagues on
18 both sides of the aisle for supporting this
19 incredibly important resolution. Our veterans
20 have done for us; we should continue to do for
21 them.
22 I proudly vote in the affirmative.
23 ACTING PRESIDENT PERSAUD: Senator
24 Bailey to be recorded in the affirmative.
25 Announce the results.
2974
1 THE SECRETARY: Ayes, 62.
2 ACTING PRESIDENT PERSAUD: The bill
3 is passed.
4 THE SECRETARY: Calendar Number
5 835, Senate Print 8802, by Senator Mayer, an act
6 to amend Chapter 217 of the Laws of 2015.
7 ACTING PRESIDENT PERSAUD: Read the
8 last section.
9 THE SECRETARY: Section 2. This
10 act shall take effect immediately.
11 ACTING PRESIDENT PERSAUD: Call the
12 roll.
13 (The Secretary called the roll.)
14 ACTING PRESIDENT PERSAUD: Announce
15 the results.
16 THE SECRETARY: Ayes, 62.
17 ACTING PRESIDENT PERSAUD: The bill
18 is passed.
19 THE SECRETARY: Calendar Number
20 844, Senate Print 7622A, by Senator Serrano, an
21 act to amend the Public Authorities Law.
22 ACTING PRESIDENT PERSAUD: Read the
23 last section.
24 THE SECRETARY: Section 3. This
25 act shall take effect immediately.
2975
1 ACTING PRESIDENT PERSAUD: Call the
2 roll.
3 (The Secretary called the roll.)
4 ACTING PRESIDENT PERSAUD: Announce
5 the results.
6 THE SECRETARY: Ayes, 62.
7 ACTING PRESIDENT PERSAUD: The bill
8 is passed.
9 THE SECRETARY: Calendar Number
10 892, Senate Print 8403, by Senator Brouk, an act
11 to amend Chapter 289 of the Laws of 2021.
12 SENATOR LIU: Lay it aside
13 temporarily, please.
14 ACTING PRESIDENT PERSAUD: Lay it
15 aside temporarily.
16 THE SECRETARY: Calendar Number
17 893, Senate Print 8618, by Senator Rivera, an act
18 to amend the Public Health Law.
19 ACTING PRESIDENT PERSAUD: Read the
20 last section.
21 THE SECRETARY: Section 2. This
22 act shall take effect immediately.
23 ACTING PRESIDENT PERSAUD: Call the
24 roll.
25 (The Secretary called the roll.)
2976
1 ACTING PRESIDENT PERSAUD: Announce
2 the results.
3 THE SECRETARY: Ayes, 62.
4 ACTING PRESIDENT PERSAUD: The bill
5 is passed.
6 THE SECRETARY: Calendar Number
7 898, Senate Print 6193A, by Senator Gounardes, an
8 act to amend the Executive Law.
9 ACTING PRESIDENT PERSAUD: Read the
10 last section.
11 THE SECRETARY: Section 2. This
12 act shall take effect immediately.
13 ACTING PRESIDENT PERSAUD: Call the
14 roll.
15 (The Secretary called the roll.)
16 ACTING PRESIDENT PERSAUD: Senator
17 Akshar to explain his vote.
18 SENATOR AKSHAR: Madam President,
19 thank you. It's not often I rise to explain how
20 excited I am about a particular piece of
21 legislation.
22 I want to commend the sponsor. This
23 piece of legislation is incredibly important. We
24 in this house and our friends in the Assembly
25 know in fact how important the Constitution in
2977
1 the State of New York is. Look no further than
2 the gerrymandered maps. At the end of the day,
3 the Constitution prevailed, the maps went in the
4 garbage.
5 So I want to thank the sponsor for
6 advancing a piece of legislation that
7 commemorates a specific day in the State of
8 New York and acknowledges the importance of the
9 Constitution. I proudly stand with my colleague
10 and our colleagues and vote in the affirmative.
11 Thank you, Madam President.
12 ACTING PRESIDENT PERSAUD: Senator
13 Akshar to be recorded in the affirmative.
14 Senator Borrello to explain his
15 vote.
16 SENATOR BORRELLO: Thank you,
17 Madam President.
18 I would also like to commend the
19 sponsor on this. In fact, I was moved by his
20 speech last week and I got a transcript of it
21 here, and with your indulgence I am going to read
22 it again in its entirety, so --
23 (Laughter.)
24 SENATOR BORRELLO: Just kidding.
25 Thank you, Madam President.
2978
1 ACTING PRESIDENT PERSAUD: Senator
2 Borrello to be recorded in the affirmative
3 without reading the speech.
4 (Laughter.)
5 ACTING PRESIDENT PERSAUD: Senator
6 Gounardes to explain his vote.
7 (Groans, laughter.)
8 SENATOR GOUNARDES: Madam
9 President, I only got to finish half of my speech
10 last week --
11 (Laughter.)
12 SENATOR GOUNARDES: -- so if you
13 don't mind, I want to finish the other half --
14 no.
15 (Laughter.)
16 SENATOR GOUNARDES: You know, and I
17 appreciate my colleagues for their comments.
18 There's a reason why I really talk about why it's
19 important to celebrate the Constitution. Because
20 it's important that we know the structures, the
21 powers, the obligations of our government. It's
22 important for us to know why it is we do what we
23 do.
24 Without fail, every year members on
25 both sides of the aisle like to complain about
2979
1 our state budget process. And we bang our fists
2 and we wring our hands and we say, Oh, Silver v.
3 Pataki, oh, it's a terrible thing, we can't get
4 the budget we want. Ignoring the fact that it
5 was a hundred-plus years ago when the budget
6 process was reformed by a young reformer named
7 Robert Moses -- yes, that Robert Moses -- that
8 led to the passage of the 1927 amendment
9 consolidating power for the budget in the
10 executive chamber.
11 It's because we come back to this
12 chamber year after year after year to fight for
13 education funding. Senator Jackson walking to
14 Albany twice in the push for education funding.
15 Why? Because in 1894 the Constitution mandated
16 an elevated public education as a fundamental
17 constitutional right.
18 Those two things are inextricably
19 linked. When we talk about the robust public
20 safety net that we have in this state for people
21 who are less advantaged, for people who need a
22 leg up, for people who need just a little bit of
23 help, it's because our Constitution, Article 17,
24 says that the aid, care and support of the needy
25 are public concerns and shall be provided for by
2980
1 the state. That is in our State Constitution,
2 those words.
3 And so I know it's kind of fun and I
4 got up here and I spoke a little bit longer than
5 folks like to talk about our history. And I know
6 it seems like a nerdy thing, but it is so
7 incredibly important. Because it determines not
8 only where we've been, but where we're going.
9 Even on issues that we might not fully agree
10 with -- or agree on.
11 And so for that reason, I proudly
12 vote aye to celebrate and establish April 20th as
13 officially New York's Constitution Day.
14 Thank you.
15 ACTING PRESIDENT PERSAUD: Senator
16 Gounardes to be recorded in the affirmative.
17 Announce the results.
18 THE SECRETARY: Ayes, 62.
19 ACTING PRESIDENT PERSAUD: The bill
20 is passed.
21 THE SECRETARY: Calendar Number
22 914, Assembly Print Number 9161, by
23 Assemblymember Magnarelli, an act to amend the
24 Vehicle and Traffic Law.
25 ACTING PRESIDENT PERSAUD: Read the
2981
1 last section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT PERSAUD: Call the
5 roll.
6 (The Secretary called the roll.)
7 ACTING PRESIDENT PERSAUD: Announce
8 the results.
9 THE SECRETARY: In relation to
10 Calendar Number 914, voting in the negative:
11 Senator Lanza.
12 Ayes, 61. Nays, 1.
13 ACTING PRESIDENT PERSAUD: The bill
14 is passed.
15 Senator Liu.
16 SENATOR LIU: Madam President,
17 please return to Calendar Number 892.
18 ACTING PRESIDENT PERSAUD: There's
19 a substitution at the desk.
20 The Secretary will read.
21 THE SECRETARY: Senator Brouk moves
22 to discharge, from the Committee on Health,
23 Assembly Bill Number 9374 and substitute it for
24 the identical Senate Bill 8403, Third Reading
25 Calendar 892.
2982
1 ACTING PRESIDENT PERSAUD: The
2 substitution is so ordered.
3 The Secretary will read.
4 THE SECRETARY: Calendar Number
5 892, Assembly Number 9374, by Assemblymember
6 Abinanti, an act to amend Chapter 289 of the Laws
7 of 2021.
8 ACTING PRESIDENT PERSAUD: Read the
9 last section.
10 THE SECRETARY: Section 2. This
11 act shall take effect immediately.
12 ACTING PRESIDENT PERSAUD: Call the
13 roll.
14 (The Secretary called the roll.)
15 ACTING PRESIDENT PERSAUD: Announce
16 the results.
17 THE SECRETARY: Ayes, 62.
18 ACTING PRESIDENT PERSAUD: The bill
19 is passed.
20 Senator Liu, that completes the
21 reading of today's calendar.
22 SENATOR LIU: Madam President,
23 please go to the reading of the controversial
24 calendar.
25 ACTING PRESIDENT PERSAUD: The
2983
1 Secretary will ring the bell.
2 The Secretary will read.
3 THE SECRETARY: Calendar Number
4 497, Senate Print 2143A, by Senator Kavanagh, an
5 act to amend the Banking Law.
6 ACTING PRESIDENT BAILEY: Senator
7 Borrello.
8 SENATOR BORRELLO: Thank you,
9 Mr. President. Will the sponsor yield for a
10 question.
11 ACTING PRESIDENT BAILEY: Does the
12 sponsor yield?
13 SENATOR KAVANAGH: Yes,
14 Mr. President.
15 SENATOR BORRELLO: Thank you,
16 Senator Kavanagh.
17 You know, as you've heard me say
18 before, I'm always concerned about things that
19 unfairly impact our -- particularly our New York
20 banks. This just happens to unfairly impact
21 every bank.
22 But with that being said, if a
23 servicer on a mortgage -- because this would
24 require that they all meet very strict standards
25 on a deadline, which we agree with. However, if
2984
1 a servicer makes a harmless error anywhere in the
2 process of servicing it, it could result in the
3 inability for them to ever foreclose on a
4 mortgage, right? Which I think is wholly unfair
5 and is certainly going to harm the mortgage
6 industry in New York State.
7 So with that said, would it be true
8 that if a servicer sent a statement -- they'd
9 have to provide a statement within 30 days. If
10 they sent that statement on Day 31, that they
11 would later be unable to foreclose on that
12 property in the event that it was a default, for
13 missing the deadline by one day?
14 SENATOR KAVANAGH: Thank you,
15 Mr. President. Don't expect the eloquence we had
16 from my colleague in this chamber last week and
17 this week.
18 (Laughter.)
19 SENATOR BORRELLO: It's okay.
20 SENATOR KAVANAGH: But no. Thank
21 you.
22 So this is a bill, for those who
23 might be listening, that permits a private right
24 of action for violation of certain rules that are
25 intended to protect borrowers throughout the
2985
1 state. And it's supported by a very wide range
2 of organizations that are actively active in the
3 space of litigating and taking other actions
4 necessary to protect borrowers.
5 And the provision that my colleague
6 is referring to would also require compliance
7 with those rules, which are colloquially
8 called -- they're the 419 rules. And my reading
9 of the bill is that a minor immaterial violation
10 like that would not necessarily bar a case by the
11 court. Somebody asserting that failure to comply
12 with those rules bars a case entirely would have
13 to make the claim that it is a violation of those
14 rules that rises to that level.
15 SENATOR BORRELLO: Mr. President,
16 will the sponsor continue to yield?
17 ACTING PRESIDENT BAILEY: Will the
18 sponsor yield?
19 SENATOR KAVANAGH: Yes,
20 Mr. President.
21 ACTING PRESIDENT BAILEY: The
22 sponsor yields.
23 SENATOR BORRELLO: So I'm trying to
24 unpack your answer to the question, because my
25 question was pretty simple.
2986
1 If a bank sent a notice under that
2 419 requirement and it was a 30-day and it was
3 delivered on Day 31, would that invalidate any
4 claim they might have in the future to foreclose?
5 Your answer was, well, maybe, I think, based on
6 whether or not the borrower decided that they
7 were going to pursue that action.
8 So if the borrower did pursue that
9 action, would that invalidate that mortgage? Or
10 are you saying that under no circumstances would
11 a minor violation result in a mortgage holder
12 being unable to foreclose?
13 SENATOR KAVANAGH: Through you,
14 Mr. President, I think I'm saying neither of
15 those things, although I'm not sure I followed
16 those efforts to paraphrase my words.
17 SENATOR BORRELLO: Okay.
18 SENATOR KAVANAGH: The question I
19 believe, Mr. President, if I understand the
20 question, is would a court permit a case to go
21 forward if subdivision 4 of this bill were the
22 law?
23 And my answer is -- and I think that
24 the premise of that question is that even a very
25 minor immaterial violation of the law would
2987
1 prevent a case from going forward, if I'm
2 correct. And I would say that a court -- if a
3 borrower files a case -- sorry, if a lender files
4 a case and they're intending to avail themselves
5 of the courts, if the subdivision 4 were in
6 place, the defense -- the defendant in that case,
7 the respondent in that case would be permitted to
8 say there's been a violation of the existing
9 rules and under subdivision 4 of the legislation
10 that was passed, they are barred from -- from
11 having that -- proceeding with that case.
12 And again, I and many practitioners
13 in this area do not believe that a -- you know, a
14 one-day delay in some notice sometime years ago,
15 or some -- or something that the court deems to
16 be a minor violation would bar a case under this
17 provision.
18 But again, it's -- I don't want to
19 get into a game of, you know, if I were the judge
20 would I permit it under this language. We have a
21 role to set a standard, and then the courts have
22 a role of interpreting those standards and
23 determining whether cases are going to proceed.
24 SENATOR BORRELLO: Mr. President,
25 will the sponsor continue to yield.
2988
1 ACTING PRESIDENT BAILEY: Will the
2 sponsor yield?
3 SENATOR KAVANAGH: Yes,
4 Mr. President.
5 ACTING PRESIDENT BAILEY: The
6 sponsor yields.
7 SENATOR BORRELLO: Well, I thank
8 you for that. So let's ask a different question.
9 Pursuant to the new regulation,
10 Section 419.6, a servicer has five days in which
11 to acknowledge receipt of a complaint and give
12 the borrower additional information.
13 If the servicer sends that
14 acknowledgment on Day 6, would that result in the
15 inability later for that -- to foreclose on that
16 property if it was in default?
17 SENATOR KAVANAGH: Through you,
18 Mr. President. Again, I don't think it is
19 productive for me to stand here and guess without
20 any context about how a particular judge might
21 interpret a particular provision of law or the
22 circumstances under which it was -- that
23 particular rule or the circumstances in which it
24 was violated.
25 What I'm saying to you is that the
2989
1 way I read this and the way many practitioners in
2 the area read this, we believe that a non -- a de
3 minimis violation -- 419 is a complex set of
4 regulations, and there's a widespread perception
5 that many lenders and servicers flagrantly
6 violate those rules all the time and there's
7 little consequence for that.
8 So we're trying to create an
9 obligation to comply with the law as it's already
10 on the books if you want to avail yourselves of
11 the courts in an action like this.
12 But again, I do not read this to say
13 that, you know, if you fail to -- if you've
14 misspelled a word or failed to dot the Is and
15 cross the Ts, that your case is automatically
16 barred. But I don't think it's -- it's not my
17 role to read -- I have a copy of Section 419
18 here. I don't think it's our role here to parse
19 out which of those violations would be
20 significant enough to bar an action and which
21 would not be. That's the role of judges.
22 SENATOR BORRELLO: Mr. President,
23 would the sponsor continue to yield.
24 ACTING PRESIDENT BAILEY: Will the
25 sponsor yield? Senator Kavanagh, do you yield?
2990
1 (Pause.)
2 ACTING PRESIDENT BAILEY: Senator
3 Kavanagh, do you yield?
4 SENATOR KAVANAGH: Yes, I do.
5 ACTING PRESIDENT BAILEY: The
6 sponsor yields.
7 SENATOR KAVANAGH: I was just
8 consulting with a colleague here. Thank you.
9 SENATOR BORRELLO: Through you,
10 Mr. President. So I guess what I'm getting to
11 here is it sounds like we've opened the door for
12 someone who is an attorney defending someone who
13 is in a foreclosure proceeding to say: No, no,
14 according to Section 419, this mortgage provider,
15 this lender gave a notice on Day 31 or Day 6 and
16 therefore they can request from the judge to --
17 for a summary dismissal, you know, to vacate the
18 claim. That's really what this law says.
19 But you're telling me that that's --
20 that -- is it your intent with this law to not
21 allow such minor violations to bar mortgage
22 lenders from actually making a claim on a
23 foreclosure?
24 SENATOR KAVANAGH: Through you,
25 Mr. President. My intent with this legislation
2991
1 is to recognize that lenders have lots of
2 obligations that are intended to protect
3 homeowners, small businesses and others that are
4 borrowing throughout our state and to address the
5 fact that in many instances they're ignoring
6 those provisions.
7 So we are attempting here to create
8 a standard that says you have to comply with the
9 laws on the books, that are already on the books,
10 and the regulations that are on the books, that
11 are intended to protect homeowners and small
12 businesses and other borrowers. And if you do
13 not comply, then you cannot then turn around and
14 foreclose.
15 Having said that, I and, you know,
16 the many legal services organizations and others
17 who are practitioners in the courts have informed
18 me that they do not believe that a -- something
19 the court deems to be a de minimis violation
20 would necessarily bar a case in this.
21 And there's a further provision
22 that -- of the same subdivision that we're
23 discussing here that makes it clear that a
24 defense -- that violations of those rules can be
25 a defense in a case that is actually proceeding,
2992
1 so there is contemplated a situation where there
2 are cases that are proceeding where violations
3 exist.
4 And that provision has been amended
5 since -- that was amended last year at the
6 request of some of the lenders and their
7 representatives to indicate that the provision --
8 that the defense -- that it is a defense but not
9 a complete defense in those cases.
10 So I think the overall effect of
11 subdivision 4 will create good reason for lenders
12 to be concerned that if they're violating the
13 rules that are intended to protect our homeowners
14 and our small business owners, that that may have
15 consequences when they -- should they choose to
16 avail themselves of the courts to enforce their
17 rights.
18 But I don't believe that in practice
19 a court is going to find that, you know, if three
20 years ago you made some de minimis violation of
21 those rules, that that in itself would bar the
22 case.
23 SENATOR BORRELLO: Mr. President,
24 will the sponsor continue to yield.
25 ACTING PRESIDENT BAILEY: Will the
2993
1 sponsor continue to yield?
2 SENATOR KAVANAGH: Yes,
3 Mr. President.
4 ACTING PRESIDENT BAILEY: The
5 sponsor yields.
6 SENATOR BORRELLO: Through you,
7 Mr. President. I guess the intent versus the
8 language is what we're talking about here.
9 But there is no doubt that what this
10 bill is going to do is it's going to create a
11 situation where a minor error could potentially
12 lead to at least the extension of litigation and
13 the delay of a foreclosure proceeding. New York
14 State is already probably the worst in being able
15 to resolve foreclosure proceedings.
16 But there's another important part
17 of this, and that is the secondary market. What
18 makes many mortgages affordable and accessible,
19 particularly for people with questionable credit,
20 is the fact that there is indeed a secondary
21 market where a mortgagor can sell their loans.
22 It happens all the time. In fact, my mother's
23 mortgage was sold five times.
24 So with that being said, in New York
25 State if a purchaser of a loan has -- buys a loan
2994
1 where a violation, a minor violation, any one of
2 these Section 419 violations was committed by the
3 originator and then sold, does that violation
4 follow? And is the mortgage buyer now
5 responsible, liable, for that violation that was
6 done by the originator?
7 SENATOR KAVANAGH: Through you,
8 Mr. President, my colleague is correct that
9 violations of the existing law are not
10 effectively wiped away by transferring the
11 mortgage or perhaps a package of mortgages to
12 a -- somebody who purchases them, and that is the
13 express intent of this.
14 There are many, many business
15 transactions where one party is taking possession
16 of property or business or other assets that
17 might come with liabilities, might come with
18 liability for violations of the law, and it is
19 certainly the case that the -- you know, the
20 lawyers representing people in those transactions
21 have the ability to choose who's responsible for
22 the violations, to create indemnity classes or
23 other things, and also to do due diligence to
24 make sure that the purchaser of the asset is --
25 you know, is understanding the risks they're
2995
1 taking on and taking steps to minimize that.
2 We do not want a situation where
3 we've got these -- as the many rules that we've
4 already talked about that are intended to protect
5 the rights of borrowers -- that any violation of
6 those rules can simply be wiped way by a transfer
7 to a new entity.
8 So yes, the liability -- the sort of
9 consequences of having violated those rules would
10 go with the loan if it's purchased.
11 SENATOR BORRELLO: Thank you.
12 Mr. President, will the sponsor
13 continue to yield?
14 ACTING PRESIDENT BAILEY: Will the
15 sponsor continue to yield?
16 SENATOR KAVANAGH: Yes,
17 Mr. President.
18 ACTING PRESIDENT BAILEY: The
19 sponsor yields.
20 SENATOR BORRELLO: You know, those
21 of us that aren't lawyers usually look at a
22 mistake and usually have an opportunity to fix
23 that mistake, to repair what you have done. In
24 legal terms, I'm told this is called a cure.
25 In other words, is there an
2996
1 opportunity for someone who had missed a deadline
2 accidentally, something got lost in the mail, to
3 cure that? In other words, can we make sure that
4 we don't put them in jeopardy of having to be
5 drawn into a long, drawn-out legal battle over a
6 minor violation?
7 So does this bill actually give an
8 opportunity to cure? In other words, can they
9 fix the mistake that they made to avoid them
10 having to go into what could be a costly legal
11 battle?
12 SENATOR KAVANAGH: There's no
13 specific provision in this bill that provides --
14 there's no provision to provide for a cure here.
15 And again, to the extent we've
16 discussed violations here -- you know, my
17 colleague has mentioned some minor violations
18 like something was due a number of years ago on
19 the 30th and it sent on the 31st. It's not clear
20 how one would cure that unless one has a time
21 machine.
22 But again, the idea here is that if
23 a lender is generally following the rules and
24 when they make a mistake they are curing
25 it and -- you know, curing it and preventing any
2997
1 harm to the borrower, then they will -- that is
2 something that they can present as an explanation
3 for why the case -- why their case should move
4 forward in spite of some claim by the respondent
5 that it shouldn't move forward.
6 And also in response to if the -- to
7 a circumstance where under this same subdivision
8 the borrower may offer as a defense in the action
9 that the -- that the lender has previously
10 violated the rules.
11 SENATOR BORRELLO: Mr. President,
12 on the bill.
13 ACTING PRESIDENT BAILEY: Senator
14 Borrello on the bill.
15 SENATOR BORRELLO: Thank you.
16 Thank you, Senator Kavanagh, for
17 once again giving those explanations.
18 You know, I realize that there's
19 always an opportunity to explain yourself. But
20 unfortunately, when you're in court, that costs a
21 lot of money. And explaining yourself while the
22 clock is ticking is what we're talking about
23 here.
24 New York State is already an
25 incredibly difficult place to do business, and
2998
1 probably no worse, honestly, than for our
2 state-chartered banks in particular. We continue
3 to pile up the bricks on the backs of our
4 state-chartered banks, and eventually that back
5 is going to break.
6 And that's not going to be good for
7 the people of New York State because as I
8 mentioned before, the community banks, the small
9 banks where you know the people on the board,
10 where you know the mortgage lender, where you
11 know his family, his or her family -- those are
12 the people that are truly making sure that our
13 small communities especially are able to make
14 things like homes and cars affordable and
15 accessible to the people in their communities,
16 particularly in the middle class.
17 So in the State of New York we often
18 pass things like this, which sound good, like a
19 consumer protection, but what we're really saying
20 is we're going to make it so that we're going to
21 muddy the water, we're going to blur the lines.
22 And whenever that happens, Mr. President, that
23 means we have to go to court. And when we have
24 to go to court, the meter's running. And that's
25 really what this is about.
2999
1 So if we want to see mortgages
2 continue to be affordable and accessible -- and
3 considering the fact that we now know that we're
4 going to see increases in mortgage rates, we're
5 seeing that the rates are going to go up, that's
6 going to make it even more difficult for some
7 people to afford a mortgage. If you pile onto
8 that additional costs and fees that will
9 ultimately be amortized -- no pun intended --
10 into the cost of actually getting a mortgage,
11 then that's going to make it very difficult for
12 people in a state like New York, where it's
13 already expensive for a lot of people to own a
14 home, it's expensive to pay those property taxes,
15 it's certainly expensive to pay those closing
16 costs -- New York is one of the most expensive
17 places to close a mortgage -- we're going to just
18 make it more and more difficult for people to
19 have the basics like being able to have the
20 American dream of owning your own home.
21 So while I understand that there are
22 a lot of special interests out there that would
23 love to see this happen, this is not in the best
24 interests of the consumers of New York State.
25 And when the time comes, I'll be against it.
3000
1 Thank you, Mr. President.
2 ACTING PRESIDENT BAILEY: Senator
3 Palumbo.
4 SENATOR PALUMBO: Thank you,
5 Mr. President. Would the sponsor yield for a few
6 questions, please?
7 ACTING PRESIDENT BAILEY: Will the
8 sponsor yield?
9 SENATOR KAVANAGH: Happily,
10 Mr. President.
11 ACTING PRESIDENT BAILEY: The
12 sponsor yields.
13 SENATOR PALUMBO: Thank you,
14 Senator Kavanagh. And through you,
15 Mr. President. I do have a few questions really
16 on the damages side, but I wanted to follow up a
17 little bit on what Senator Borrello just
18 discussed and maybe go a little bit further into
19 the specific language of this bill.
20 And just initially, though, is there
21 a small servicer exemption under this bill, under
22 Part 419, that would otherwise be exempt from
23 having to comply with these specifics?
24 SENATOR KAVANAGH: I think I know,
25 but I'm just checking to make sure.
3001
1 So are you asking is -- does the
2 existing 419 provide for a small servicer
3 exception? Or are you asking does this bill
4 provide for a small servicer exception to the
5 otherwise applicable requirements of 419?
6 Through you, Mr. President, I ask
7 that clarifying question.
8 SENATOR PALUMBO: Yes, certainly.
9 And if I may clarify, Mr. President.
10 And so I believe under -- and I
11 actually cheated a little, I printed out NYCRR
12 under Title 3, Section 419. But I also pulled up
13 the DFS website discussing these regulations.
14 And it did say that there was no small servicer
15 exemption, they're not exempt from the
16 requirements of Part 419.
17 So my question is, are small
18 servicers exempt from compliance under this bill?
19 Or is this basically everyone who lends?
20 SENATOR KAVANAGH: Again -- through
21 you, Mr. President -- this bill is about the
22 consequences of not complying with existing law.
23 So if one were to think that there
24 ought to be a small servicer exemption from
25 419 -- I'm not sure why small servicers should be
3002
1 able to violate the rights of homeowners and
2 small businesses owners and borrowers. But if we
3 wanted to make that case, the place I think to do
4 that would be in an amendment to 419.
5 This is a bill if -- to the extent
6 419 is applicable to you, this is a bill about
7 the consequences of failing to comply with 419.
8 SENATOR PALUMBO: Understood.
9 Would the sponsor continue to yield,
10 please.
11 ACTING PRESIDENT BAILEY: Will the
12 sponsor yield?
13 SENATOR KAVANAGH: Yes,
14 Mr. President.
15 ACTING PRESIDENT BAILEY: The
16 sponsor yields.
17 SENATOR PALUMBO: Senator Kavanagh,
18 there actually already are private rights of
19 action under the federal regulations, would you
20 agree with that? The Real Estate Settlement
21 Procedures Act. There are some, not all -- but
22 there are many regarding material violations,
23 rights of action that a homeowner could seek
24 today. We don't need the -- there's no need to
25 include it under New York State law. Would you
3003
1 agree with that?
2 SENATOR KAVANAGH: Through you,
3 Mr. President, I was with my colleague until the
4 very last part.
5 I will certainly agree that there
6 are private rights of action under -- I think
7 it's Section X. But obviously I would not --
8 were I to agree that we didn't need a private
9 right of action under state law, I would not be
10 proposing this bill to this house today.
11 The point is that there's federal
12 law and there's state law, and they, you know,
13 relate to each other in some ways but they're
14 distinct. And as in many, many areas of the law,
15 we have state standards that we want to enforce,
16 and we get to choose at the state how those will
17 be enforced.
18 And this bill does add a private
19 right of action to those who want to assert a
20 violation of the laws applicable in New York.
21 And yes, there is also a private
22 right of action, and the Congress and the
23 Executive have chosen which of the provisions of
24 federal law there's a private right of action on,
25 and we're today proposing a set of laws that --
3004
1 to grant a private right of action to parties for
2 violations of our state laws.
3 SENATOR PALUMBO: Will the sponsor
4 continue to yield.
5 ACTING PRESIDENT BAILEY: Does the
6 sponsor yield?
7 SENATOR KAVANAGH: Yes,
8 Mr. President.
9 ACTING PRESIDENT BAILEY: The
10 sponsor yields.
11 SENATOR PALUMBO: Thank you,
12 Senator.
13 Does the sponsor have a definition
14 of what a condition precedent is when it comes to
15 a lawsuit?
16 SENATOR KAVANAGH: Through you,
17 Mr. President, the -- I'm reluctant -- I think --
18 I think my colleague knows what those words mean.
19 And, I mean, it is a condition necessary to meet
20 before one is allowed -- before some other event
21 is permitted to occur.
22 SENATOR PALUMBO: Will the sponsor
23 continue to yield.
24 ACTING PRESIDENT BAILEY: Will the
25 sponsor continue to yield?
3005
1 SENATOR KAVANAGH: Yes,
2 Mr. President.
3 ACTING PRESIDENT BAILEY: The
4 sponsor yields.
5 SENATOR PALUMBO: And I wasn't
6 trying to trick you, Senator. I know you knew
7 the answer because it's in the bill and so --
8 SENATOR KAVANAGH: Mr. President, I
9 did not perceive a trick, I just was trying to --
10 SENATOR PALUMBO: So I just wanted
11 to have you explain that to our colleagues,
12 because I just want to read this one section.
13 And it's only a two-page bill, it's not very
14 long -- really, a little more than a page.
15 And it says here, under Section 4,
16 Compliance with rules, regulations or policies:
17 "Compliance with any such rules, regulations or
18 policies as the superintendent may promulgate to
19 effect the purposes of this article, including
20 but not limited to 3 NYCRR 419 or any
21 subsequently promulgated mortgage servicing rules
22 pursuant to this subdivision, shall be a
23 condition precedent to commencing an action to
24 foreclose upon a mortgage subject to this article
25 or an action on the note, and the failure to
3006
1 comply with such rules, regulations or policies
2 shall be a defense to a foreclosure action or
3 action on the note, even if servicing has been
4 transferred to a different mortgage servicer."
5 So I read that section and I ask you
6 specifically, when you think about other areas
7 where a condition precedent in our law is
8 applicable -- for example, you want to sue a
9 municipality -- a condition precedent to a
10 lawsuit is filing a notice of claim within
11 90 days. If you fail to file a notice of claim,
12 your suit's a nullity.
13 So if they fail to comply with these
14 rules and regulations and then mistakenly sue,
15 their lawsuit, according to this bill -- the
16 mortgage servicing company -- would then be
17 deemed a nullity. Is that accurate?
18 SENATOR KAVANAGH: Through you,
19 Mr. President, I think that -- I don't think we
20 have a dispute about what condition or precedent
21 means, I think. But in the question -- the
22 discussion with my other colleague and this
23 discussion here, I think we are having a
24 conversation about what compliance with all these
25 rules, regulations and policies -- what level of
3007
1 compliance is necessary for this provision to be
2 applicable.
3 I don't think there are many
4 borrowers that if you ask them are you complying
5 with, you know, 3 NYCRR 419, they would say no,
6 we are not complying with that. I think they
7 would say they are complying. And perhaps, you
8 know, borrowers who want to make the assertion in
9 future litigation that this provision is as
10 strict as my colleagues suggest it is should, you
11 know, bring him in to make that case.
12 But my belief and the belief of many
13 people who are litigants in this area, and I'll
14 talk -- you know, my colleague referred to the
15 supporters of this bill as special interests a
16 minute ago. We'll talk about who's supporting
17 this bill in a minute.
18 But the -- it is my belief and the
19 intent, as the sponsor of this bill, the intent
20 that you must comply with the rules and
21 regulations and policies, and failure to comply
22 with those rules would block the -- a suit from
23 proceeding. If you do find yourself in a court
24 action, that you could use those as a defense,
25 although not a complete defense in a foreclosure
3008
1 action. And I think that it's going to be up to
2 courts to determine, as they do in so many areas,
3 the precise parameters of the compliance that's
4 necessary and how the defense plays out and what
5 the remedy is.
6 And again, I would also just note
7 that one of my colleagues had said that this
8 would bring people into court and then to have to
9 defend their compliance with the regulations.
10 This subdivision 4 applies in circumstances where
11 the lender is bringing the borrower to court. So
12 there's nothing about this provision that would
13 bring the -- would bring a lender to court.
14 This is where -- this provision
15 applies where a lender is asserting their rights
16 in a court action.
17 SENATOR PALUMBO: Will the sponsor
18 continue to yield.
19 ACTING PRESIDENT BAILEY: Would the
20 sponsor yield?
21 SENATOR KAVANAGH: Yes,
22 Mr. President.
23 ACTING PRESIDENT BAILEY: The
24 sponsor yields.
25 SENATOR PALUMBO: And that was
3009
1 really -- my question was regarding a plaintiff,
2 that if you ultimately sued.
3 Because, for example, at page 2,
4 line 3, it says "shall be a condition precedent
5 to commencing an action." When you're suing a
6 municipality without a notice of claim, your case
7 is dismissed. There is no discussion. There is
8 no discretion for a judge.
9 So for the purposes of legislative
10 intent, could you please just clarify for future
11 litigants whether or not it is a material
12 noncompliance, immaterial noncompliance --
13 meaning anything, if it's I did mail my notice
14 18 days instead of 15 days -- could you possibly
15 clarify that for us? Because I know that
16 substantial compliance is used a lot in our law,
17 or material defects versus immaterial, something
18 that can actually damage a homeowner, the fact
19 that you got a notice three days late,
20 although -- and we'll get to damages shortly --
21 you're still entitled to damages under this law,
22 you are not actually damaged by that, the fact
23 that you didn't get a notice that it was
24 transferred to another company.
25 So would you please maybe help us
3010
1 out so that people who are listening could
2 ultimately understand your intent with this
3 particular bill once it becomes law?
4 SENATOR KAVANAGH: Through you,
5 Mr. President, just to clarify. My colleague
6 seemed to be talking about subdivision 4
7 throughout the question and then threw in the
8 reference to the subdivision 3, the damages
9 provision in subdivision 3.
10 I'm going to just interpret the
11 question as a question about the -- just
12 continuing the conversation of -- about
13 subdivision 4. And if we want to discuss the
14 damages provisions, we can discuss those. But
15 I'm going to sort of consider that not part of
16 this question.
17 SENATOR PALUMBO: Sure. And I
18 apologize, that was a bit of a long question.
19 So I'll just say very specifically,
20 could you explain to us what the satisfaction
21 aspect of complying with, as a condition
22 precedent, complying with these regulations would
23 be sufficient in order to sustain your lawsuit?
24 Because if you fail, in certain
25 areas of our law, in the slightest to satisfy
3011
1 condition precedent, your case is thrown out. So
2 could we just make -- could you possibly indicate
3 that this condition precedent, as you said, does
4 it need to be a material compliance, substantial
5 compliance, or utter absolute compliance to the
6 letter?
7 SENATOR KAVANAGH: So through you,
8 Mr. President, I don't -- I just -- first an
9 observation about the example that my colleague
10 is using of the application of condition
11 precedent.
12 When the rule is you must file a --
13 you must file the action that you're about to
14 file, a notice of the action in a particular way,
15 that's a pretty straightforward question whether
16 that notice was filed or not filed. It's -- you
17 know, in this sort of thing it's not surprising
18 that courts that find that that was not filed at
19 all and it is a notice of the action that is then
20 supposed to be allowed to proceed or not proceed,
21 it's not surprising that, you know, there's a
22 sort of fairly clean interpretation of that, that
23 the Legislature intended explicitly that that
24 notice be filed, and it hasn't been filed, and
25 therefore that case cannot proceed.
3012
1 This bill does have a lot more
2 complexity to it because the rules and
3 regulations and policies that we're discussing
4 here are complex.
5 I don't think legislative intent is
6 best expressed on the floor by people adding
7 words to the statute, so I'm not going to say
8 "materiality" should be the word in here or
9 "substantialness" should be the word in here.
10 I've already said during the course
11 of these proceedings that I do not believe that
12 absolute compliance with every provision and
13 every letter of the law is going to be necessary.
14 But courts are going to have to determine whether
15 there has been compliance or there has not been
16 compliance, and whether they should bar cases
17 brought by borrowers because of noncompliance
18 with these laws. And then, as my other colleague
19 alluded to, what might be necessary for the
20 borrower to remedy that noncompliance in order to
21 proceed.
22 SENATOR PALUMBO: Thank you,
23 Senator. Would you continue to yield, please.
24 ACTING PRESIDENT BAILEY: Will the
25 sponsor continue to yield?
3013
1 SENATOR KAVANAGH: Yes,
2 Mr. President.
3 ACTING PRESIDENT BAILEY: The
4 sponsor yields.
5 SENATOR PALUMBO: Thank you. And
6 through you, Mr. President. And that -- I
7 appreciate that.
8 Because this is about, you know, 150
9 notices of claim is what we're doing if we're
10 keeping -- if we're establishing that each and
11 every one of those compliance situations over a
12 30-year relationship is absolutely necessary. So
13 inabsolute compliance is a good thing.
14 And I have one last question in that
15 area. If the lender makes a good-faith effort,
16 would that satisfy, in your opinion, under your
17 intention in this statute, a good-faith effort at
18 compliance, would that be satisfactory in order
19 to allow the suit to proceed?
20 SENATOR KAVANAGH: Through you,
21 Mr. President. Again, I'm going to -- we're
22 talking about subdivision 4 here, the compliance
23 required in subdivision 4?
24 SENATOR PALUMBO: Yes, thank you.
25 SENATOR KAVANAGH: Okay. Again, I
3014
1 do not -- words like "good faith" and
2 "materiality" and "substantialness" have, you
3 know, legal and technical definitions that vary
4 from context to context. I do not want to add
5 words that are not in the statute to the record
6 today.
7 But obviously courts very frequently
8 consider the behavior of parties and whether they
9 intended to engage in bad behavior or whether
10 they acted in good faith. And I assume -- I
11 would assume that courts would consider those
12 factors in litigation around how this statute
13 applies.
14 But I'm not going to say that
15 there's a bright line standard that if there's
16 good faith, then this provision doesn't apply.
17 SENATOR PALUMBO: Thank you.
18 Senator, would you continue to
19 yield, please.
20 ACTING PRESIDENT BAILEY: Does the
21 sponsor continue to yield?
22 SENATOR KAVANAGH: Yes,
23 Mr. President.
24 ACTING PRESIDENT BAILEY: The
25 sponsor yields.
3015
1 SENATOR PALUMBO: Thank you,
2 Senator Kavanagh.
3 So just a few quick questions on the
4 damages section now in Section 3, subdivision 3.
5 "If awarded damages or injunctive relief," the
6 tenant shall be entitled to recover -- and I
7 added that -- or the owner or the defendant, so
8 to speak, "shall also be entitled to recover
9 costs and expenses, including but not limited to
10 reasonable attorneys' fees."
11 So when it says when awarded
12 damages, is that any damages? And the reason I
13 ask that is the section before that awards a
14 thousand dollars a day liquidated or presumed
15 damages simply for a violation. So in the
16 example I gave before, your notice is three days
17 late, they get three grand because you were three
18 days late, which is presumed.
19 Are they basically entitled to all
20 these additional costs, treble damages and
21 attorneys' fees, in the event there's any
22 violation at all?
23 SENATOR KAVANAGH: Through you,
24 Mr. President. First to clarify. The provision
25 my colleague is referring to is not a per-day
3016
1 provision but it's a per-violation provision. So
2 it would be a thousand dollars total per
3 violation.
4 And again, the actions in question
5 here are actions where a party has been -- would
6 have to have demonstrated -- in order to have an
7 action, they'd have to have demonstrated that
8 they have been injured by a violation.
9 So in the example that my colleague
10 used, if a notice were a few days late, that --
11 there wouldn't be a case at all unless the
12 borrower is able to demonstrate that they've been
13 injured by the violation. And if they are
14 injured then, yes, they're entitled -- if they do
15 demonstrate to the satisfaction of the court that
16 they are injured by the violation, they are then
17 entitled to the remedies that are listed here.
18 SENATOR PALUMBO: Very good. Thank
19 you, Chairman. I appreciate you answering my
20 questions.
21 On the bill, please, Mr. President.
22 ACTING PRESIDENT BAILEY: Senator
23 Palumbo on the bill.
24 SENATOR PALUMBO: Thank you,
25 Mr. President.
3017
1 And I appreciate Senator Kavanagh
2 clarifying a lot of those issues that I have with
3 the language of this.
4 But unfortunately, this is a long
5 ways away from something that's palatable.
6 Because we have a very vaguely drafted statute,
7 we have language that has meaning in our system
8 of law, a condition precedent, which means -- and
9 it's a "shall" statute: You must comply. You
10 fail to do so, you lose. By a day, for example.
11 I gave the -- in General Municipal Law you have a
12 year and 90 days to sue overall. If you're
13 outside your 90 days for a notice of claim, you
14 have to make a motion and get court permission.
15 If you miss those conditions, you're out.
16 So now we have someone, a lender,
17 who is looking to just simply square up with
18 someone who is in default. And we have been
19 bludgeoning them, as my colleague, the ranker on
20 Banks, mentioned earlier, we have been
21 bludgeoning our banks. And I get it: We do not
22 want someone to lend in a predatory fashion, we
23 do not want someone to injure, actually injure
24 any borrower or be otherwise -- you know the big
25 bullies that they're unfortunately -- and
3018
1 villains -- made out to be on this floor often.
2 But these are the folks that also
3 most of whom are -- have scruples. These are the
4 folks that allow homeownership. The people that
5 are struggling to make payments are the ones that
6 we all collectively have a heart for. We
7 certainly want them to stay in their home. And
8 we have all kinds of conditions and mandates and
9 mandatory settlement conferences, you have to do
10 hundreds and hundreds -- I've refereed many
11 foreclosures. And I don't litigate, myself,
12 against a -- with a -- as a party representative,
13 but I get stacks and stacks, probably 10 inches
14 worth of documents prior to ultimately getting to
15 the point where you can consider selling a piece
16 of property.
17 So they are diligent, they're doing
18 what they're doing. But this is discouraging not
19 only lenders in New York State from staying here,
20 but it's discouraging lenders from even lending
21 or getting involved or on a secondary market
22 investing in that field. Why possibly would you
23 want to put your money in New York when it's an
24 absolute burden to get your money back in the
25 event of a default?
3019
1 They're in the business of money.
2 When you see these modifications, they're
3 modifying loans down to about 2 percent. They're
4 not making money on that. They don't want to own
5 a home. They don't want to foreclose. That's
6 really the last resort.
7 So I do appreciate the laudable
8 intent of this bill, but it is really -- it's,
9 most respectfully, very poorly drafted. And I
10 just don't think this is going to do anything to
11 help anyone. Its unintended consequence is it
12 will actually hurt borrowers in the long run.
13 I'll be voting in the negative, and
14 I urge my colleagues to do the same.
15 Thank you, Mr. President.
16 ACTING PRESIDENT BAILEY: Thank
17 you, Senator Palumbo.
18 Are there any other Senators wishing
19 to be heard?
20 Seeing and hearing none, debate is
21 closed. The Secretary will ring the bell.
22 Read the last section.
23 THE SECRETARY: Section 2. This
24 act shall take effect immediately.
25 ACTING PRESIDENT BAILEY: Call the
3020
1 roll.
2 (The Secretary called the roll.)
3 ACTING PRESIDENT BAILEY: Senator
4 Kavanagh to explain his vote.
5 SENATOR KAVANAGH: Thank you,
6 Mr. President.
7 I thank my colleagues for, you know,
8 a lively debate today. I think it's always
9 important to, you know, lay out what's going on
10 and different perspectives on how the bills
11 before us will work.
12 I do want to just note, you know,
13 for the record, this bill is supported by a very
14 wide range of organizations in our state
15 including AARP New York, which is a special
16 interest for all of us who have gotten to be my
17 age and a little older; the Center for New York
18 City Neighborhoods; Community Service Society of
19 New York; DC 37; the Empire Justice Center; JASA;
20 the Legal Aid Society; Legal Services of New York
21 City; Long Island Housing Services; Mobilization
22 for Justice; the Mortgage Working Group of
23 New Yorkers for Responsible Lending; Neighborhood
24 Housing Services of Brooklyn; New York Legal
25 Assistance Group; the Rural Law Center of
3021
1 New York; and the Western New York Law Center.
2 And I just want to -- first of all,
3 you know, I wanted to just mention that for the
4 record and also publicly thank the many
5 organizations who have worked on this bill and
6 advocated for us to get it this far in the
7 process.
8 I also just want to respond to an
9 argument that we hear a lot -- we hear variations
10 on this argument a lot. And this is my 16th year
11 in Albany, and I have seen debates about consumer
12 protection bills in many contexts, including laws
13 that are intended to protect borrowers from
14 practices of banks and other participants in the
15 lending industry.
16 And we very frequently hear this
17 argument that if we take this additional step,
18 people are going to stop lending in our state,
19 they're going to go elsewhere, they're going to
20 cease to be willing to lend under these
21 circumstances. And again, we've heard that again
22 and again.
23 And over many years we have
24 strengthened the laws that are intended to
25 protect our borrowers, our homeowners, our small
3022
1 business owners, and we have never seen this
2 exodus from the market. I don't believe there's
3 any reason to think that a bill like this will
4 cause that kind of exodus. But on the other
5 hand, it will provide some teeth, some
6 effectiveness to the laws that we've already
7 taken the time to put on the books to protect our
8 lenders -- sorry, our borrowers.
9 And on that basis, Mr. President, I
10 vote aye.
11 ACTING PRESIDENT BAILEY: Senator
12 Kavanagh to be recorded in the affirmative.
13 Announce the results.
14 THE SECRETARY: In relation to
15 Calendar 497, those Senators voting in the
16 negative are Senators Akshar, Borrello, Boyle,
17 Gallivan, Griffo, Helming, Jordan, Lanza,
18 Martucci, Mattera, Oberacker, O'Mara, Ortt,
19 Palumbo, Rath, Ritchie, Serino, Stec, Tedisco and
20 Weik.
21 Ayes, 42. Nays, 20.
22 ACTING PRESIDENT BAILEY: The bill
23 is passed.
24 The Secretary will ring the bell.
25 The Secretary will read.
3023
1 THE SECRETARY: Calendar Number
2 704, Assembly Print Number 7737B, by
3 Assemblymember Weinstein, an act to amend the
4 Real Property Actions and Proceedings Law.
5 ACTING PRESIDENT BAILEY: Senator
6 Boyle.
7 SENATOR BOYLE: Will the Senator
8 yield?
9 ACTING PRESIDENT BAILEY: Will the
10 sponsor yield for some questions?
11 SENATOR KAVANAGH: Yes,
12 Mr. President, standing in for the sponsor,
13 Senator Sanders.
14 ACTING PRESIDENT BAILEY: Senator
15 Sanders is the sponsor, but Senator Kavanagh will
16 be debating on the subject matter today.
17 SENATOR BOYLE: Thank you. Through
18 you, Mr. President, would the Senator yield for a
19 couple of questions?
20 ACTING PRESIDENT BAILEY: The
21 sponsor yields.
22 SENATOR KAVANAGH: Yes.
23 SENATOR BOYLE: Senator, does this
24 bill apply solely to residential properties? I
25 couldn't find it, but is it also commercial?
3024
1 SENATOR KAVANAGH: Through you,
2 Mr. President, this bill addresses lots of
3 concerns that have come up, as far as we know,
4 exclusively in the residential market, but it is
5 not on its own terms limited to that.
6 So if the provisions of this bill
7 that are intended to provide fairness for
8 borrowers also provide fairness for commercial
9 borrowers, then, you know, that would be, from my
10 perspective, a benefit of this bill. But we do
11 expect it to basically be -- and we're not aware
12 of any instances where these issues have come up
13 in a commercial context. But the bill is not
14 limited to residential.
15 SENATOR BOYLE: Thank you.
16 Will the Senator continue to yield?
17 ACTING PRESIDENT BAILEY: Will the
18 Senator continue to yield?
19 SENATOR KAVANAGH: Yes,
20 Mr. President.
21 ACTING PRESIDENT BAILEY: The
22 Senator yields.
23 SENATOR BOYLE: Thank you,
24 Mr. President.
25 Can you explain how the effective
3025
1 date of this bill works? And who would be
2 affected by the -- this date?
3 SENATOR KAVANAGH: Through you,
4 Mr. President, there are a number of different
5 sections of this bill.
6 And it is -- let me just start with
7 the effective date provision, which says that it
8 shall take effect immediately and will apply to
9 all actions commenced on an instrument described
10 under a particular provision of the Civil
11 Practice Law and Rules in which a final judgment
12 of foreclosure and sale has not been enforced.
13 So that -- what that provision
14 suggests is that it is going to apply to actions
15 that have been commenced, presumably on the date
16 this bill becomes law, assuming it is signed by
17 the Governor.
18 So there may be some complicated
19 questions about -- you know, in some cases this
20 bill applies to situations where an action has
21 been commenced and it's been suspended in some
22 way. But as a general matter, if an action has
23 not -- an action has been commenced and is
24 pending at the time this bill comes into effect,
25 then it would apply. But if an action has been
3026
1 concluded, presumably it would not apply to that
2 action.
3 SENATOR BOYLE: Thank you. Will
4 you continue to yield?
5 ACTING PRESIDENT BAILEY: Will the
6 Senator continue to yield?
7 SENATOR KAVANAGH: Yes,
8 Mr. President.
9 ACTING PRESIDENT BAILEY: Senator
10 Kavanagh yields.
11 SENATOR BOYLE: Thank you, Senator.
12 So I think the big issue with this
13 bill is the fact that you have a bank -- an
14 example, you have a bank, the borrower stops
15 making payments for whatever reason, a
16 foreclosure action is started, and then the bank
17 and the borrower start talking, Hey, let's cut a
18 deal, in which they may make a change to modify
19 the payment plan and then the foreclosure action
20 is ceased, and then a couple of years down the
21 road or a little ways down the road again there's
22 a problem.
23 How does the bank again start a
24 foreclosure action? And can they, if this bill
25 becomes law?
3027
1 SENATOR KAVANAGH: Again, there are
2 several different provisions here, but I think
3 the one that's most applicable to your question
4 are Sections 3, 4 and 8 of the bill which are a
5 response to a state court opinion called Engel.
6 And that is an opinion that the --
7 where the court ruled that in the event a
8 foreclosure is brought and then the lender ends
9 that action voluntarily, presumably because
10 they've made some other arrangement with the
11 borrower, under Engel -- Engel made a decision
12 that by action of law, the lender is permitted in
13 a future case to say that they de-accelerated --
14 that the conclusion of that prior case
15 de-accelerated the loan payment -- just for those
16 who that term isn't familiar, acceleration is
17 what you do when your lender is not paying the
18 loan and you want to foreclose, the first thing
19 you do is take advantage of an acceleration
20 provision in the lending documents, which
21 basically say if the lender -- if the borrower
22 fails to make certain payments, all of the
23 payments become due. And then on that basis, the
24 borrower goes to court and seeks payment from the
25 lender and seeks the remedy of foreclosure if
3028
1 that's what they're seeking.
2 So under Engel, there had been some
3 difference of opinion. People on various sides
4 of this -- some say it was clear and Engel
5 changed the status quo; others just say Engel
6 clarified the law. But what the courts said is
7 that when a lender withdraws a case, that it is
8 automatically de-accelerated in a manner that
9 allows them to take advantage of the statute of
10 limitations having been beginning again when they
11 accelerate the case again.
12 So normal -- with -- in most cases a
13 statute of limitations begins when somebody
14 has some action that's precedent and usually some
15 cause of action kind of ripens and then there's a
16 period during which they can bring the case, and
17 then that period ends and they can no longer
18 bring the case.
19 The effect of Engel is that a case
20 can be brought, the lender can withdraw the case,
21 and then they get the benefit of an entirely new
22 statute of limitations.
23 What this bill says is that in that
24 circumstance, if a lender wants to withdraw a
25 case because they have some agreement with the
3029
1 borrower, they can make an agreement with the
2 borrower that determines whether the settlement
3 of that first case constitutes de-acceleration or
4 it doesn't, and that agreement is binding on the
5 parties.
6 But it's not automatically
7 de-accelerated, so that the borrower doesn't
8 automatically have the right to begin a new case
9 with a statute of limitations that's premised on
10 a new acceleration.
11 SENATOR BOYLE: Just to follow up
12 on that, does this bill create a --
13 ACTING PRESIDENT BAILEY: Senator
14 Boyle, are you asking the sponsor to yield?
15 SENATOR BOYLE: Yes.
16 ACTING PRESIDENT BAILEY: Senator
17 Kavanagh, will you yield?
18 SENATOR KAVANAGH: Yes,
19 Mr. President.
20 SENATOR BOYLE: I thought I could
21 sneak one in without asking.
22 (Laughter.)
23 SENATOR BOYLE: The -- is there --
24 does this bill give an approved procedure for a
25 bank to decelerate a loan and to pause the
3030
1 statute of limitations? Is there anything that
2 explains the procedure for the bank? Because
3 they're probably going to be wondering what they
4 have to do.
5 SENATOR KAVANAGH: Through you,
6 Mr. President, I don't believe that banks that
7 are in the business of lending or bringing, you
8 know, cases to enforce their rights and to
9 foreclose have much doubt as to how to
10 accelerate -- how to indicate to the borrower
11 that they're accelerating or they're
12 de-accelerating, and certainly -- so I don't
13 believe this bill has any -- (pause).
14 I'm just reminded -- just -- my
15 colleague was suggesting to clarify this. But it
16 does indicate that it needs to be in writing and
17 that it needs to be, you know, in an agreement
18 with the lender. But it doesn't -- you know, the
19 bill doesn't specify what the words are or --
20 that are necessary to do that.
21 SENATOR BOYLE: Mr. President, if
22 the sponsor will continue to yield for one more
23 question.
24 ACTING PRESIDENT BAILEY: Will the
25 Senator continue to yield?
3031
1 SENATOR KAVANAGH: Yes,
2 Mr. President.
3 ACTING PRESIDENT BAILEY: The
4 Senator yields.
5 SENATOR BOYLE: Last question,
6 Senator.
7 Say a bank got a judgment of
8 foreclosure and a sale just before COVID hit,
9 it's been a two-year time span and this puts them
10 outside of the six-year window, for example.
11 What are the -- would the borrower
12 just be able to stay in the house and say, Oh,
13 your statute of limitations has passed? Or is
14 there -- was there a tolling during COVID, as far
15 as you know, in this bill?
16 SENATOR KAVANAGH: Through you,
17 Mr. President, we took a lot of emergency actions
18 legislatively and through executive orders during
19 COVID.
20 I am not aware of any provision that
21 will -- so I'm not aware of any provision where
22 we tolled the statute of limitations during
23 COVID.
24 I will note that the statute of
25 limitations in this case is a six-year statute of
3032
1 limitations, so if a case is barred now because
2 the statute of limitations has run, the case
3 would have had to -- it would have to be based on
4 a loan that was accelerated no later than, you
5 know, April of 2016.
6 So I think that, you know, the
7 operation of the statute of limitations in that
8 case is probably not -- the fact that they have
9 not concluded the case is not primarily a
10 function of COVID.
11 Having said that, if this is an area
12 where it is appropriate to create emergency
13 provisions related to COVID, we've done that in
14 numerous areas; I suppose one could propose such
15 a thing.
16 But in this case, you know, we have
17 sophisticated participants in the market who
18 understood what was going on in the courts and
19 what their options were for their cases, and I
20 don't think this bill creates any -- you know,
21 any significant change in their rights that's
22 related to COVID.
23 But again, I'd be open to the
24 possibility, if there's some -- if somebody wants
25 to explain why they were unable to enforce their
3033
1 rights during COVID, I suppose we could have that
2 conversation.
3 SENATOR BOYLE: I guess maybe
4 because the courts were closed for two years.
5 But thank you, Senator. Thank you,
6 Mr. President.
7 ACTING PRESIDENT BAILEY: Thank
8 you, Senator Boyle.
9 SENATOR KAVANAGH: Through you,
10 Mr. President, just to -- since there was a
11 comment at the end, I'll take it as a question.
12 The courts would say that they were
13 not --
14 (Laughter.)
15 SENATOR KAVANAGH: The courts would
16 say they were not closed, they were on very
17 limited capacity, but they were -- there was an
18 ability to file various motions throughout the
19 COVID period.
20 And, you know, again, if there's
21 further discussion of how litigants need to
22 protect themselves, I'm sure we could have it.
23 Thank you, Mr. President.
24 ACTING PRESIDENT BAILEY: Thank
25 you, Senator Kavanagh.
3034
1 Are there any other Senators wishing
2 to be heard?
3 Seeing and hearing none, debate is
4 closed. The Secretary will ring the bell.
5 Read the last section.
6 THE SECRETARY: Section 2. This
7 act shall take effect immediately.
8 ACTING PRESIDENT BAILEY: Call the
9 roll.
10 (The Secretary called the roll.)
11 ACTING PRESIDENT BAILEY: Senator
12 Salazar to explain her vote.
13 SENATOR SALAZAR: Thank you,
14 Mr. President.
15 This bill is deeply meaningful to
16 many homeowners in our Brooklyn districts who
17 have been fighting to keep their homes, and
18 especially in communities that have seen
19 particularly high rates of foreclosure filings
20 throughout the pandemic.
21 Given the alarming number of
22 homeowners who are unable to keep up with
23 mortgage payments or facing foreclosure, it
24 really is important to protect fairness in
25 foreclosure proceedings and minimize uncertainty
3035
1 for homeowners.
2 By passing this bill today, we are
3 ensuring that financial institutions are not able
4 to evade longstanding statutes of limitations to
5 take advantage of these struggling homeowners.
6 Mr. President, I vote aye.
7 ACTING PRESIDENT BAILEY: Senator
8 Salazar to be recorded in the affirmative.
9 Announce the results.
10 THE SECRETARY: In relation to
11 Calendar 704, those Senators voting in the
12 negative are Senators Borrello, Gallivan, Griffo,
13 Jordan, Oberacker, Ortt, Ritchie, Serino, Stec,
14 Tedisco and Weik.
15 Ayes, 51. Nays, 11.
16 ACTING PRESIDENT BAILEY: The bill
17 is passed.
18 Senator Liu, that completes the
19 reading of today's controversial calendar.
20 SENATOR LIU: Mr. President, can we
21 please return to motions and resolutions.
22 ACTING PRESIDENT BAILEY: Senator
23 Liu.
24 SENATOR LIU: Mr. President, on
25 page 45 I offer the following amendments to
3036
1 Calendar Number 874, Senate Print Number 2025, by
2 Senator May, and ask that the said bill retain
3 its place on Third Reading Calendar.
4 ACTING PRESIDENT BAILEY: The
5 amendments are received, and the bill will retain
6 its place on the Third Reading Calendar,
7 Senator Liu.
8 SENATOR LIU: Mr. President, is
9 there any further business at the desk?
10 ACTING PRESIDENT BAILEY: There is
11 no further business at the desk.
12 SENATOR LIU: I move to adjourn
13 until Wednesday, May 4th, at 3:00 p.m.
14 ACTING PRESIDENT BAILEY: Let me be
15 clear. On motion, the Senate stands adjourned
16 until Wednesday, May 4th, at 3:00 p.m.
17 (Whereupon, at 5:13 p.m., the Senate
18 adjourned.)
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