S T A T E   O F   N E W   Y O R K
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                                  1312

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 28, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Housing, Construction  and
  Community Development

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

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

  Section 1. Clause 10 of subparagraph (i) of paragraph 2 of subdivision
e of section 26-403 of the administrative code of the city of  New  York
is amended to read as follows:
  (10)  Housing accommodations not occupied by the tenant, not including
subtenants or occupants, as his or her primary residence, as  determined
by a court of competent jurisdiction. FOR PURPOSES OF DETERMINING PRIMA-
RY  RESIDENCY,  AS  USED IN THIS CHAPTER, THE FAILURE TO FILE A NEW YORK
CITY RESIDENT INCOME TAX RETURN BY AN INDIVIDUAL REQUIRED BY LAW TO FILE
SUCH A RETURN, SHALL RESULT IN A FINDING THAT THE TENANT DOES NOT OCCUPY
THE UNIT AS HIS OR HER PRIMARY RESIDENCE; PROVIDED, HOWEVER,  THAT  THIS
PROVISION  SHALL  NOT APPLY TO AN INDIVIDUAL WHO HAS REQUESTED AN EXTEN-
SION OF TIME FOR PAYMENT OF TAX OR WHERE ANY OTHER FACTOR  EXISTS  WHICH
WOULD EXCUSE THE TIMELY FILING OF THE RETURN; PROVIDED FURTHER, THAT THE
TIMELY  FILING  OF  THE RETURN, ALONE, SHALL NOT RESULT IN A PRESUMPTION
THAT THE INDIVIDUAL DOES OCCUPY THE UNIT AS HIS  OR  HER  PRIMARY  RESI-
DENCE.  No  action  or  proceeding shall be commenced seeking to recover
possession on the ground that a housing accommodation is not occupied by
the tenant as his or her primary residence unless the  owner  or  lessor
shall  have  given thirty days notice to the tenant of his or her inten-
tion to commence such action or proceeding on such grounds.
  S 2. Subparagraph (f) of paragraph  1  of  subdivision  a  of  section
26-504  of the administrative code of the city of New York is amended to
read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07320-01-9
              

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  (f) not occupied by the tenant, not including subtenants or occupants,
as his OR HER primary residence, as determined by a court  of  competent
jurisdiction[,  provided, however that no].  FOR PURPOSES OF DETERMINING
PRIMARY RESIDENCY, AS USED IN THIS CHAPTER, THE FAILURE TO  FILE  A  NEW
YORK CITY RESIDENT INCOME TAX RETURN BY AN INDIVIDUAL REQUIRED BY LAW TO
FILE  SUCH  A RETURN, SHALL RESULT IN A FINDING THAT THE TENANT DOES NOT
OCCUPY THE UNIT AS HIS OR HER PRIMARY RESIDENCE; PROVIDED, HOWEVER, THAT
THIS PROVISION SHALL NOT APPLY TO AN INDIVIDUAL  WHO  HAS  REQUESTED  AN
EXTENSION  OF  TIME  FOR PAYMENT OF TAX OR WHERE ANY OTHER FACTOR EXISTS
WHICH WOULD EXCUSE THE TIMELY FILING OF A RETURN; PROVIDED FURTHER, THAT
THE TIMELY FILING OF THE RETURN, ALONE, SHALL NOT RESULT IN  A  PRESUMP-
TION  THAT  THE  INDIVIDUAL  DOES  OCCUPY THE UNIT AS HIS OR HER PRIMARY
RESIDENCE. NO action or proceeding shall be commenced seeking to recover
possession on the ground that a housing accommodation is not occupied by
the tenant as his or her primary residence unless the  owner  or  lessor
shall  have  given thirty days notice to the tenant of his or her inten-
tion to commence such action or proceeding  on  such  grounds.  For  the
purposes of this subparagraph where a housing accommodation is rented to
a  not-for-profit  hospital  for  residential use, affiliated subtenants
authorized to use such accommodations by such hospital shall  be  deemed
to be tenants, or
  S  3. Paragraph 11 of subdivision a of section 5 of section 4 of chap-
ter  576  of  the  laws  of  1974,  constituting  the  emergency  tenant
protection  act  of  nineteen seventy-four, as amended by chapter 940 of
the laws of 1984, is amended to read as follows:
  (11) housing accommodations which are not occupied by the tenant,  not
including  subtenants  or occupants, as his OR HER primary residence, as
determined by a court of competent jurisdiction. FOR PURPOSES OF  DETER-
MINING PRIMARY RESIDENCY, AS USED IN THIS ACT, THE FAILURE TO FILE A NEW
YORK  STATE  RESIDENT INCOME TAX RETURN BY AN INDIVIDUAL REQUIRED BY LAW
TO FILE SUCH A RETURN, SHALL RESULT IN A FINDING THAT  THE  TENANT  DOES
NOT  OCCUPY THE UNIT AS HIS OR HER PRIMARY RESIDENCE; PROVIDED, HOWEVER,
THAT THIS PROVISION SHALL NOT APPLY TO AN INDIVIDUAL WHO  HAS  REQUESTED
AN EXTENSION OF TIME FOR PAYMENT OF TAX OR WHERE ANY OTHER FACTOR EXISTS
WHICH  WOULD  EXCUSE  THE TIMELY FILING OF THE RETURN; PROVIDED FURTHER,
THAT THE TIMELY FILING OF THE RETURN,  ALONE,  SHALL  NOT  RESULT  IN  A
PRESUMPTION  THAT  THE  INDIVIDUAL  DOES  OCCUPY  THE UNIT AS HIS OR HER
PRIMARY RESIDENCE. For the purposes of this paragraph, where  a  housing
accommodation  is  rented  to  a not-for-profit hospital for residential
use, affiliated subtenants authorized to use such accommodations by such
hospital shall be deemed to be tenants. No action or proceeding shall be
commenced seeking to recover possession on the  ground  that  a  housing
accommodation  is not occupied by the tenant as his OR HER primary resi-
dence unless the owner or lessor shall have given thirty days notice  to
the tenant of his OR HER intention to commence such action or proceeding
on such grounds.
  S  4. This act shall take effect immediately; provided that the amend-
ment to section 26-403 of the city rent and rehabilitation law  made  by
section  one  of  this act shall remain in full force and effect only so
long as the public emergency requiring the  regulation  and  control  of
residential  rents and evictions continues, as provided in subdivision 3
of section 1 of the  local  emergency  housing  rent  control  act;  and
provided  further  that  the  amendment  to  section  26-504 of the rent
stabilization law of nineteen hundred sixty-nine made by section two  of
this act shall expire on the same date as such law expires and shall not
affect  the  expiration  of such law as provided under section 26-520 of

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such law; and provided further that the amendment to section  5  of  the
emergency tenant protection act of nineteen seventy-four made by section
three  of this act shall expire on the same date as such act expires and
shall not affect the expiration of such act as provided in section 17 of
chapter 576 of the laws of 1974, as amended.