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

20  

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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