S T A T E   O F   N E W   Y O R K
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                                  2633

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 19, 2011
                               ___________

Introduced  by M. of A. FITZPATRICK, McDONOUGH -- read once and referred
  to the Committee on Housing

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;  and  to  amend  the  tax  law,  in
  relation to verification of residence

  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,
as  amended  by  chapter  422 of the laws of 2010, 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
PRIMARY  RESIDENCY,  AS  USED IN THIS CHAPTER, THE FAILURE TO FILE A NEW
YORK CITY RESIDENT INCOME TAX RETURN  FOR  THE  TWO  PRECEDING  CALENDAR
YEARS  (SETTING FORTH THE HOUSING ACCOMMODATION AS HIS OR HER RESIDENCE)
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
WHO IS NOT REQUIRED TO FILE A RESIDENT INCOME TAX RETURN, 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 OR THAT THE FILING OF AN ACTION TO DETERMINE A
TENANT'S PRIMARY RESIDENCE SHALL NOT PRECLUDE SUCH TENANT FROM FILING AN
AMENDED TAX RETURN PROVIDED THAT SUCH AMENDED  RETURN  IS  FILED  WITHIN
SIXTY  DAYS OF THE COMMENCEMENT OF THE ACTION. FURTHER, FOR the purposes
of determining primary residency, a tenant who is a victim  of  domestic
violence,  as defined in section four hundred fifty-nine-a of the social
services law, who has left the unit because of such  violence,  and  who
asserts an intent to return to the housing accommodation shall be deemed

              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03032-01-1

A. 2633                             2

to  be  occupying 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  intention  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, as amended by
chapter 422 of the laws of 2010, is amended to read as follows:
  (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 FOR THE TWO PRECEDING CALENDAR
YEARS (SETTING FORTH THE HOUSING ACCOMMODATION AS HIS OR HER  RESIDENCE)
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
WHO  IS  NOT REQUIRED TO FILE A RESIDENT INCOME TAX RETURN, 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 PRESUMPTION THAT THE INDIVIDUAL DOES OCCUPY THE UNIT AS HIS
OR HER PRIMARY RESIDENCE OR THAT THE FILING OF AN ACTION TO DETERMINE  A
TENANT'S PRIMARY RESIDENCE SHALL NOT PRECLUDE SUCH TENANT FROM FILING AN
AMENDED  TAX  RETURN  PROVIDED  THAT SUCH AMENDED RETURN IS FILED WITHIN
SIXTY DAYS OF THE COMMENCEMENT OF THE  ACTION.  FURTHER,  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 intention to commence
such action or proceeding on such grounds. For the purposes of determin-
ing primary residency, a tenant who is a victim of domestic violence, as
defined in section four hundred fifty-nine-a of the social services law,
who has left the unit because of  such  violence,  and  who  asserts  an
intent  to  return  to  the  housing accommodation shall be deemed to be
occupying the unit as his or her primary residence. 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 422 of
the laws of 2010, 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 the  purposes  of
determining  primary  residency,  a  tenant  who is a victim of domestic
violence, as defined in section four hundred fifty-nine-a of the  social
services  law,  who  has left the unit because of such violence, and who
asserts an intent to return to the housing accommodation shall be deemed
to be occupying the unit as his or her primary residence.  FURTHER,  FOR
PURPOSES  OF DETERMINING PRIMARY RESIDENCY, AS USED IN THIS CHAPTER, THE
FAILURE TO FILE A NEW YORK STATE RESIDENT INCOME TAX RETURN FOR THE  TWO
PRECEDING CALENDAR YEARS (SETTING FORTH THE HOUSING ACCOMMODATION AS HIS

A. 2633                             3

OR  HER  RESIDENCE)  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 WHO IS NOT REQUIRED TO FILE A  RESI-
DENT  INCOME  TAX  RETURN,  OR WHERE ANY OTHER FACTOR EXISTS WHICH WOULD
EXCUSE THE TIMELY FILING OF THE RETURN; PROVIDED FURTHER, THAT THE TIME-
LY FILING OF THE RETURN, ALONE, SHALL NOT RESULT IN A  PRESUMPTION  THAT
THE  INDIVIDUAL  DOES OCCUPY THE UNIT AS HIS OR HER PRIMARY RESIDENCE OR
THAT THE FILING OF AN ACTION TO DETERMINE A TENANT'S  PRIMARY  RESIDENCE
SHALL  NOT  PRECLUDE  SUCH  TENANT  FROM  FILING  AN  AMENDED TAX RETURN
PROVIDED THAT SUCH AMENDED RETURN IS FILED  WITHIN  SIXTY  DAYS  OF  THE
COMMENCEMENT  OF THE ACTION. For the purposes of this paragraph, where a
housing accommodation is rented to a not-for-profit hospital  for  resi-
dential 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 prima-
ry  residence  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.  The tax law is amended by adding a new section 171-v to read as
follows:
  S 171-V. VERIFICATION OF RESIDENCE FILING ADDRESS. (1) THE COMMISSION-
ER IS AUTHORIZED TO VERIFY TO OWNERS OF MULTIPLE  DWELLINGS  COVERED  BY
THE  CITY  RENT  AND  REHABILITATION  LAW, THE RENT STABILIZATION LAW OF
NINETEEN HUNDRED SIXTY-NINE AND/OR THE EMERGENCY TENANT  PROTECTION  ACT
OF NINETEEN SEVENTY-FOUR WHETHER OR NOT, IN A GIVEN CALENDAR YEAR, A NEW
YORK  CITY  OR NEW YORK STATE RESIDENT INCOME TAX RETURN WAS FILED BY AN
INDIVIDUAL WHO IS A TENANT IN THE OWNER'S MULTIPLE DWELLING AND, IF  SO,
THE  RESIDENCE  ADDRESS  WHICH  IS  SET  FORTH ON THE TAX RETURN.   SUCH
VERIFICATION SHALL BE IN WRITING AND SHALL BE CONSIDERED  A  CERTIFICATE
OR  AFFIDAVIT  FOR THE PURPOSES OF RULE FORTY-FIVE HUNDRED TWENTY OF THE
CIVIL PRACTICE LAW AND RULES.
  (2) THE DEPARTMENT MAY CHARGE A REASONABLE FEE, TO  BE  DETERMINED  BY
THE  COMMISSIONER, IN PAYMENT TO THE DEPARTMENT FOR THE EXPENSE INCURRED
IN VERIFYING THE FILING AND RESIDENCE ADDRESS.
  (3) THE COMMISSIONER SHALL PROMULGATE SUCH RULES AND REGULATIONS AS IT
DEEMS NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SECTION.
  S 5. 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  chapter  4  of
title  26  of  the  administrative  code of the city of New York 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 such law; and provided further that  the  amend-
ment  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.