S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3139
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 22, 2021
                                ___________
 
 Introduced  by  M. of A. EPSTEIN, CRUZ, RICHARDSON, SIMON, L. ROSENTHAL,
   REYES, GLICK, BARRON, GOTTFRIED, CARROLL, ANDERSON --  Multi-Sponsored
   by -- M. of A.  COOK, FRONTUS -- read once and referred to the Commit-
   tee on Judiciary
 
 AN  ACT  to amend the real property law and the uniform commercial code,
   in relation to requiring the recording of mezzanine debt and preferred
   equity investments; and to amend the tax law, in relation to including
   mezzanine debt in the mortgage recording tax
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  real property law is amended by adding a new section
 291-k to read as follows:
   § 291-K. RECORDING OF MEZZANINE DEBT AND PREFERRED EQUITY INVESTMENTS.
 1. WHENEVER A MORTGAGE INSTRUMENT IS  RECORDED  IN  THE  OFFICE  OF  THE
 RECORDING  OFFICER OF ANY COUNTY, ANY MEZZANINE DEBT OR PREFERRED EQUITY
 INVESTMENT RELATED TO THE REAL PROPERTY UPON WHICH THE MORTGAGE  INSTRU-
 MENT  IS FILED SHALL ALSO BE RECORDED WITH SUCH MORTGAGE INSTRUMENT. FOR
 THE PURPOSES OF THIS SECTION, "MEZZANINE  DEBT"  AND  "PREFERRED  EQUITY
 INVESTMENTS"  SHALL MEAN DEBT CARRIED BY A BORROWER THAT MAY BE SUBORDI-
 NATE TO THE PRIMARY LIEN AND IS SENIOR TO THE COMMON SHARES OF AN ENTITY
 OR THE BORROWER'S EQUITY AND REPORTED AS  ASSETS  FOR  THE  PURPOSES  OF
 FINANCING SUCH PRIMARY LIEN.  THIS SHALL INCLUDE NON-TRADITIONAL FINANC-
 ING  TECHNIQUES  SUCH  AS A DIRECT OR INDIRECT INVESTMENT BY A FINANCING
 SOURCE IN AN ENTITY THAT OWNS THE EQUALITY INTERESTS OF  THE  UNDERLYING
 MORTGAGE  WHERE  THE  FINANCING  SOURCE  HAS SPECIAL RIGHTS OR PREFERRED
 RIGHTS SUCH AS: (I) THE RIGHT TO RECEIVE A SPECIAL OR PREFERRED RATE  OF
 RETURN  ON  ITS CAPITAL INVESTMENT; AND (II) THE RIGHT TO AN ACCELERATED
 REPAYMENT OF THE INVESTORS CAPITAL CONTRIBUTION.
   2. THIS SECTION SHALL APPLY TO BOTH MEZZANINE DEBT AND PREFERRED EQUI-
 TY INVESTMENTS IF BOTH USED BY THE  BORROWER  OR  MORTGAGOR,  OR  EITHER
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02149-01-1
              

 A. 3139                             2
 
 MEZZANINE  DEBT  OR PREFERRED DEBT, IF EITHER IS USED BY THE BORROWER OR
 MORTGAGOR.
   3. FOR PURPOSES OF THIS SECTION, "MEZZANINE DEBT" AND "PREFERRED EQUI-
 TY  INVESTMENTS"  SHALL NOT INCLUDE DEBT ON COOPERATIVE OR COMMON SHARES
 OF A RESIDENTIAL DWELLING WHERE THE UNIT OWNER OF A  COOPERATIVE  APART-
 MENT  IS  A SHAREHOLDER OF THE OWNERSHIP ENTITY, HAS EXCLUSIVE OCCUPANCY
 OF SUCH DWELLING UNIT, AND HAS ESTABLISHED AND DELIMITED RIGHTS UNDER  A
 PROPRIETARY LEASE.
   4. NO REMEDY OTHERWISE AVAILABLE TO A SECURED PARTY UNDER ARTICLE NINE
 OF  THE UNIFORM COMMERCIAL CODE SHALL BE AVAILABLE TO ENFORCE A SECURITY
 AGREEMENT PERTAINING TO MEZZANINE DEBT FINANCING AND/OR PREFERRED EQUITY
 INVESTMENTS IN RELATION TO REAL PROPERTY UPON WHICH A  MORTGAGE  INSTRU-
 MENT  IS  FILED  THAT IS EVIDENCED BY A FINANCING STATEMENT, UNLESS THAT
 FINANCING STATEMENT IS FILED AND THE TAX IMPOSED PURSUANT TO THE AUTHOR-
 ITY OF SUBDIVISION FOUR OF SECTION TWO HUNDRED FIFTY-THREE  OF  THE  TAX
 LAW, HAS BEEN PAID.
   § 2. Section 9-601 of the uniform commercial code is amended by adding
 a new subsection (h) to read as follows:
   (H)  SECURITY  INTEREST PERFECTED BY FINANCING STATEMENT. 1.  NOTWITH-
 STANDING ANY PROVISION OF LAW TO THE CONTRARY, A  SECURITY  INTEREST  IN
 MEZZANINE  DEBT  AND/OR PREFERRED EQUITY INVESTMENTS RELATED TO THE REAL
 PROPERTY UPON  WHICH  A  MORTGAGE  INSTRUMENT  IS  FILED,  MAY  ONLY  BE
 PERFECTED BY THE FILING OF A FINANCING STATEMENT UNDER SUBPART 1 OF PART
 5  OF  THIS ARTICLE AND ONLY AFTER THE PAYMENT OF ANY TAXES DUE PURSUANT
 TO SECTION TWO HUNDRED NINETY-ONE-K OF THE REAL PROPERTY LAW.
   2. FOR PURPOSES OF  THIS  SECTION,  THE  TERMS  "MEZZANINE  DEBT"  AND
 "PREFERRED  EQUITY  INVESTMENTS" SHALL HAVE THE SAME MEANING AS PROVIDED
 IN SECTION TWO HUNDRED NINETY-ONE-K OF THE REAL PROPERTY LAW.
   3. THIS SECTION SHALL NOT BE APPLICABLE TO ANY DEBT ON COOPERATIVE  OR
 COMMON  SHARES OF A RESIDENTIAL DWELLING WHERE THE UNIT OWNER OF A COOP-
 ERATIVE APARTMENT IS A SHAREHOLDER OF THE OWNERSHIP ENTITY,  HAS  EXCLU-
 SIVE  OCCUPANCY OF SUCH DWELLING UNIT, AND HAS ESTABLISHED AND DELIMITED
 RIGHTS UNDER A PROPRIETARY LEASE.
   § 3. Paragraph (a) of subdivision 2 of section 250 of the tax law,  as
 amended  by  section  1  of part Q of chapter 60 of the laws of 2004, is
 amended to read as follows:
   (a) (1) The term "mortgage" as used in  this  article  includes  every
 mortgage  or  deed of trust which imposes a lien on or affects the title
 to real property, notwithstanding that such property may form a part  of
 the  security  for  the  debt or debts secured thereby. An assignment of
 rents to accrue from tenancies, subtenancies,  leases  or  subleases  of
 real  property,  within any city in the state having a population of one
 million or more, given as security for an indebtedness, shall be  deemed
 a  mortgage  of  real  property  for purposes of this article. Executory
 contracts for the sale of real property under which the vendee has or is
 entitled to possession shall be deemed to be mortgages for the  purposes
 of  this  article  and  shall  be  taxable  at the amount unpaid on such
 contracts. A contract or agreement by which the indebtedness secured  by
 any  mortgage  is  increased  or added to, shall be deemed a mortgage of
 real property for the purpose of this article, and shall be  taxable  as
 such upon the amount of such increase or addition.
   (2)  Notwithstanding  anything  in this section or section two hundred
 fifty-five of this article to the  contrary,  a  contract  or  agreement
 whereby  the  proceeds of any indebtedness secured by a mortgage of real
 property in any city in the state having a population of one million  or
 more are used to reduce all or any part of a mortgagee's equity interest

 A. 3139                             3
 
 in  a  wraparound  or  similar  mortgage  of such real property shall be
 deemed a mortgage of real property for the purposes of this article  and
 shall be taxable as such to the extent of the amount of such proceeds so
 used,  without  regard  to  whether the aggregate amount of indebtedness
 secured by mortgages of such real property is increased or added to.
   (3) NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS  SECTION  OR
 SECTION  TWO  HUNDRED  FIFTY-FIVE  OF THIS ARTICLE, "MEZZANINE DEBT" AND
 "PREFERRED EQUITY INVESTMENTS" AS SUCH TERMS ARE DEFINED IN  SUBDIVISION
 FOUR  OF  THIS  SECTION,  SHALL  BE  TAXABLE AND SHALL APPLY TO TAXES IN
 SUBDIVISIONS ONE, ONE-A AND TWO OF SECTION TWO  HUNDRED  FIFTY-THREE  OF
 THIS  ARTICLE, BUT SHALL NOT APPLY TO ANY OTHER TAXES IN THIS ARTICLE ON
 OR AFTER THE EFFECTIVE DATE OF THIS SUBPARAGRAPH.
   § 4.  Section 250 of the tax law is amended by adding a  new  subdivi-
 sion 4 to read as follows:
   4. THE  TERM "MEZZANINE DEBT" AND "PREFERRED ABILITY INVESTMENT" SHALL
 HAVE  THE SAME MEANING AS PROVIDED IN SECTION 291-K OF THE REAL PROPERTY
 LAW.
   § 5.  Section 253 of the tax law as amended by adding a  new  subdivi-
 sion 4 to read as follows:
   4.  (A)  A  TAX, MEASURED BY THE AMOUNT OF PRINCIPAL DEBTOR OBLIGATION
 WHICH IS UNDER ANY CONTINGENCY  MAY  BE  SECURED  AT  THE  DATE  OF  THE
 EXECUTION  THEREOF,  OR  AT ANY TIME THEREAFTER, BY A SECURITY AGREEMENT
 PERTAINING TO MEZZANINE DEBT FINANCING AND/OR PREFERRED  EQUITY  INVEST-
 MENTS  IN  RELATION TO REAL PROPERTY UPON WHICH A MORTGAGE INSTRUMENT IS
 FILED, AS EVIDENCED BY A FINANCING STATEMENT, IS IMPOSED ON  THE  FILING
 OF THE FINANCING STATEMENT.
   (B)  THE RATE AND INCIDENCE OF THE TAX SHALL BE DETERMINED PURSUANT TO
 THIS SECTION.
   (C)  EXCEPT  AS  OTHERWISE  PROVIDED  IN  THIS  SUBDIVISION,  ALL  THE
 PROVISIONS  OF  THIS  ARTICLE  RELATING TO OR APPLICABLE TO THE ADMINIS-
 TRATION, COLLECTION, DETERMINATION AND DISTRIBUTION OF THE  TAX  IMPOSED
 BY  THIS  SECTION  SHALL APPLY TO THE TAX IMPOSED UNDER THE AUTHORITY OF
 THIS SUBDIVISION WITH SUCH MODIFICATION AS MAY  BE  NECESSARY  TO  ADAPT
 SUCH LANGUAGE TO THE TAX SO AUTHORIZED. ANY REFERENCE TO A MORTGAGE WILL
 BE  DEEMED  TO  BE A REFERENCE TO A FINANCING STATEMENT THAT EVIDENCES A
 SECURITY AGREEMENT. SUCH PROVISIONS SHALL APPLY WITH THE SAME FORCE  AND
 EFFECT  AS  IF  THOSE  PROVISIONS HAD BEEN SET FORTH IN THIS SUBDIVISION
 EXCEPT TO THE EXTENT THAT ANY PROVISION IS EITHER  INCONSISTENT  WITH  A
 PROVISION  OF  THIS SUBDIVISION OR NOT RELEVANT TO THE TAX AUTHORIZED BY
 THIS SUBDIVISION.
   (D) NO REMEDY OTHERWISE AVAILABLE TO A  SECURED  PARTY  UNDER  ARTICLE
 NINE  OF  THE  UNIFORM  COMMERCIAL  CODE SHALL BE AVAILABLE TO ENFORCE A
 SECURITY  AGREEMENT  PERTAINING  TO  MEZZANINE  DEBT  FINANCING   AND/OR
 PREFERRED  EQUITY  INVESTMENTS IN RELATION TO REAL PROPERTY UPON WHICH A
 MORTGAGE INSTRUMENT IS FILED THAT IS EVIDENCED BY A FINANCING STATEMENT,
 UNLESS THAT FINANCING STATEMENT IS FILED AND THE TAX IMPOSED PURSUANT TO
 THE AUTHORITY OF THIS SUBDIVISION HAS BEEN PAID.
   (E) FOR THE PURPOSES OF THIS SUBDIVISION:
   (1) "MEZZANINE DEBT" AND "PREFERRED EQUITY INVESTMENTS" SHALL HAVE THE
 SAME MEANING AS PROVIDED IN SECTION TWO HUNDRED NINETY-ONE-K OF THE REAL
 PROPERTY LAW.
   (2) "FINANCING STATEMENT" MEANS A RECORD OR  RECORDS  COMPOSED  OF  AN
 INITIAL FINANCING STATEMENT AND ANY FILED RECORD RELATING TO THE INITIAL
 FINANCING STATEMENT.
   (3)  "SECURITY  AGREEMENT" MEANS AN AGREEMENT THAT CREATES OR PROVIDES
 FOR A SECURITY INTEREST.

 A. 3139                             4
 
   (F) COUNTIES OR CITIES AUTHORIZED UNDER THIS ARTICLE TO IMPOSE  A  TAX
 ARE  AUTHORIZED AND EMPOWERED TO ADOPT AND AMEND LOCAL LAWS TO IMPOSE IN
 SUCH COUNTY OR CITY A TAX ON THE FILING OF FINANCING STATEMENTS PERTAIN-
 ING TO MEZZANINE DEBT FINANCING AND/OR PREFERRED EQUITY  INVESTMENTS  IN
 RELATION TO REAL PROPERTY UPON WHICH A MORTGAGE INSTRUMENT IS FILED. ANY
 TAX  THAT  HAS  BEEN  IMPOSED BY A COUNTY OR CITY UNDER THE AUTHORITY OF
 THIS ARTICLE SHALL BE DEEMED TO INCLUDE  THE  AUTHORITY  TO  IMPOSE  AND
 COLLECT  THE TAX ON THE RECORDING OF A FINANCING STATEMENT PERTAINING TO
 MEZZANINE DEBT FINANCING AND/OR PREFERRED EQUITY INVESTMENTS IN RELATION
 TO REAL PROPERTY UPON WHICH A MORTGAGE INSTRUMENT IS FILED IN  THE  SAME
 MANNER AS THE LOCAL MORTGAGE RECORDING TAX.
   § 6. Subdivision 1 and paragraph (a) of subdivision 2 of section 253-a
 of  the  tax  law,  as  amended  by chapter 343 of the laws of 1990, are
 amended to read as follows:
   1. Any city in this state having a population of one million or  more,
 acting  through  its  local  legislative  body, is hereby authorized and
 empowered to adopt and amend local laws imposing in any  such  city  (A)
 prior  to  February  first,  nineteen  hundred eighty-two a tax of fifty
 cents, (B) on or after February first, nineteen hundred  eighty-two  and
 before  July first, nineteen hundred eighty-two with respect to (i) one,
 two or three-family houses, individual cooperative apartments and  indi-
 vidual  residential condominium units, and (ii) real property securing a
 principal debt or obligation of less than five hundred thousand dollars,
 a tax of fifty cents, and with respect to all other real property a  tax
 of  one  dollar  and  twelve  and  one-half cents, (C) on and after July
 first, nineteen hundred eighty-two and  before  August  first,  nineteen
 hundred  ninety  with respect to real property securing a principal debt
 or obligation of less than five hundred thousand dollars, a tax of fifty
 cents, with respect to one, two or three-family houses, individual coop-
 erative apartments and individual residential condominium units securing
 a principal debt or obligation of five hundred thousand dollars or more,
 a tax of sixty-two and one-half cents, and with  respect  to  all  other
 real  property a tax of one dollar and twenty-five cents, and (D) on and
 after August first, nineteen hundred ninety with respect to real proper-
 ty securing a principal debt or obligation of  less  than  five  hundred
 thousand  dollars,  a  tax  of  one  dollar, with respect to one, two or
 three-family houses and individual residential condominium units  secur-
 ing  a  principal debt or obligation of five hundred thousand dollars or
 more, a tax of one dollar  and  twelve  and  one-half  cents,  and  with
 respect  to all other real property a tax of one dollar and seventy-five
 cents, for each one hundred dollars and each  remaining  major  fraction
 thereof of principal debt or obligation which is or under any contingen-
 cy may be secured at the date of execution thereof, or at any time ther-
 eafter,  by  a  mortgage on such real property situated within such city
 and recorded on or after the date upon which such tax takes effect and a
 tax of one dollar on such mortgage if the principal debt  or  obligation
 which  is  or by any contingency may be secured by such mortgage is less
 than one hundred dollars. In each instance where the tax imposed  pursu-
 ant to this subdivision is one dollar and twenty-five cents for each one
 hundred  dollars and each remaining major fraction thereof of such prin-
 cipal debt or obligation, fifty percent of the total amount of such tax,
 including fifty percent of any interest or penalties thereon,  shall  be
 set  aside  in  a special account by the commissioner of finance of such
 city. In each instance where the tax imposed pursuant to  this  subdivi-
 sion  is  one dollar and seventy-five cents for each one hundred dollars
 and each remaining major fraction thereof  of  such  principal  debt  or

 A. 3139                             5
 
 obligation,  thirty-five and seven-tenths percent of the total amount of
 such tax, including thirty-five and seven-tenths percent of any interest
 or penalties thereon, shall also be set aside in such  special  account.
 Moneys in such account shall be used for payment by such commissioner to
 the  state  comptroller  for deposit in the urban mass transit operating
 assistance account of the mass transportation operating assistance  fund
 of any amount of insufficiency certified by the state comptroller pursu-
 ant  to  the  provisions of subdivision six of section eighty-eight-a of
 the state finance law, and, on the fifteenth day  of  each  month,  such
 commissioner shall transmit all funds in such account on the last day of
 the  preceding  month, except the amount required for the payment of any
 amount of insufficiency certified by  the  state  comptroller  and  such
 amount  as  he deems necessary for refunds and such other amounts neces-
 sary to finance the New York city transportation disabled committee  and
 the New York city paratransit system as established by section fifteen-b
 of  the  transportation  law, provided, however, that such amounts shall
 not exceed six percent of the total funds in the account but in no event
 be less than two hundred twenty-five thousand  dollars  beginning  April
 first,  nineteen hundred eighty-six, and further that beginning November
 fifteenth, nineteen hundred eighty-four and  during  the  entire  period
 prior  to  operation of such system, the total of such amounts shall not
 exceed three hundred seventy-five thousand dollars for  the  administra-
 tive  expenses  of  such  committee  and  fifty thousand dollars for the
 expenses of the agency designated pursuant to paragraph b of subdivision
 five of such section, and other amounts necessary to finance the operat-
 ing needs of the private bus companies franchised by  the  city  of  New
 York  and  eligible  to receive state operating assistance under section
 eighteen-b of the  transportation  law,  provided,  however,  that  such
 amounts shall not exceed four percent of the total funds in the account,
 to the New York city transit authority for mass transit within the city.
 THE TAX IMPOSED UNDER THE AUTHORITY OF PARAGRAPH (D) OF THIS SUBDIVISION
 IS DEEMED TO INCLUDE A TAX IMPOSED ON THE FILING OF FINANCING STATEMENTS
 EVIDENCING  A  SECURITY AGREEMENT PERTAINING TO MEZZANINE DEBT FINANCING
 AND/OR PREFERRED EQUITY INVESTMENTS IN RELATION TO  REAL  PROPERTY  UPON
 WHICH A MORTGAGE INSTRUMENT IS FILED.
   (a)  For  the  purpose of determining whether a mortgage is subject to
 the tax authorized to be imposed by paragraph (B) or (C) of  subdivision
 one  of this section at a rate in excess of fifty cents, or by paragraph
 (D) of subdivision one of this section  at  a  rate  in  excess  of  one
 dollar,  for  each one hundred dollars and each remaining major fraction
 thereof of principal debt or obligation, the  principal  debt  or  obli-
 gation  which  is or under any contingency may be secured at the date of
 execution thereof, or at any time thereafter, by such mortgage shall  be
 aggregated  with  the principal debt or obligation which is or under any
 contingency may be secured at the date of execution thereof, or  at  any
 time  thereafter,  by any other mortgage, where such mortgages form part
 of the same or related transactions and have the same or related mortga-
 gors OR RELATED DEBTORS IN THE CASE OF A FINANCING STATEMENT  EVIDENCING
 A  SECURITY  AGREEMENT  PERTAINING  TO  MEZZANINE  DEBT FINANCING AND/OR
 PREFERRED EQUITY INVESTMENTS IN RELATION TO REAL PROPERTY UPON  WHICH  A
 MORTGAGE  INSTRUMENT  IS  FILED.  If  the  commissioner  of taxation and
 finance finds that a mortgage transaction or mortgage transactions  have
 been  formulated  for  the  purpose of avoiding or evading a rate of tax
 authorized to be imposed under subdivision one of this section in excess
 of the lowest such authorized rate, rather than solely for an  independ-
 ent  business or financial purpose, such commissioner shall treat all of

 A. 3139                             6
 
 the mortgages forming part of such  transaction  or  transactions  as  a
 single  mortgage  for  the purpose of determining the applicable rate of
 tax. For purposes of this subdivision, there shall be a presumption that
 all  mortgages  offered  for recording within a period of twelve consec-
 utive months having the same or related mortgagors  OR  RELATED  DEBTORS
 are  part of a related transaction, and such presumption may be rebutted
 only with clear and convincing evidence to the contrary. The commission-
 er of taxation and finance may require such affidavits  and  forms,  and
 may  prescribe such rules and regulations, as he determines to be neces-
 sary to enforce the provisions of this subdivision. ANY REFERENCE  TO  A
 MORTGAGE IN THIS SUBDIVISION INCLUDES A FINANCING STATEMENT EVIDENCING A
 SECURITY   AGREEMENT  PERTAINING  TO  MEZZANINE  DEBT  FINANCING  AND/OR
 PREFERRED EQUITY INVESTMENTS IN RELATION TO REAL PROPERTY UPON  WHICH  A
 MORTGAGE INSTRUMENT IS FILED.
   §  7.  Paragraph (a) of subdivision 1 of section 255 of the tax law is
 amended by adding a new subparagraph (iii) to read as follows:
   (III) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH (I) OF THIS PARA-
 GRAPH, THE TAXES IMPOSED BY THE AUTHORITY UNDER  SUBPARAGRAPH  THREE  OF
 PARAGRAPH  (A)  OF  SUBDIVISION TWO OF SECTION TWO HUNDRED FIFTY OF THIS
 ARTICLE SHALL APPLY TO MEZZANINE DEBT AND/OR  PREFERRED  EQUITY  INVEST-
 MENTS AS SUCH TERMS ARE DEFINED BY SUBDIVISION FOUR OF SUCH SECTION.
   § 8. Section 257 of the tax law is amended to read as follows:
   § 257.  Payment  of  taxes. The taxes imposed by this article shall be
 payable on the recording of each mortgage of real  property  subject  to
 taxes  [thereunder]  UNDER THIS ARTICLE AND TO TAXES IMPOSED BY SUBPARA-
 GRAPH THREE OF PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION  TWO  HUNDRED
 FIFTY  OF  THIS ARTICLE ON AND AFTER THE EFFECTIVE DATE OF SUCH SUBPARA-
 GRAPH. Such taxes shall be paid to the recording officer of  any  county
 in which the real property or any part thereof is situated.  It shall be
 the duty of such recording officer to indorse upon each mortgage AND ANY
 MEZZANINE  DEBT  INCLUDED WITH SUCH MORTGAGE a receipt for the amount of
 the tax so paid. Any mortgage so indorsed may thereupon or thereafter be
 recorded by any recording officer and the receipt for such tax  indorsed
 upon  each  mortgage  shall  be  recorded  therewith. The record of such
 receipt shall be conclusive proof that the amount of tax stated  therein
 has been paid upon such mortgage, INCLUDING ANY MEZZANINE DEBT.
   §  9. Subdivision 1 of section 258 of the tax law, as amended by chap-
 ter 241 of the laws of 1989, is amended to read as follows:
   1. No mortgage of real property shall be recorded by any county  clerk
 or  register,  unless there shall be paid the taxes imposed by and as in
 this article provided. No mortgage of real property which is subject  to
 the  taxes  imposed  by  this  article  shall be released, discharged of
 record or received in evidence in any action or  proceeding,  nor  shall
 any  assignment  of or agreement extending any such mortgage be recorded
 unless the taxes imposed thereon by this article shall have been paid as
 provided in this article.  FOR PURPOSES OF THE TAXES IMPOSED AND AUTHOR-
 IZED BY SUBPARAGRAPH THREE  OF  PARAGRAPH  (A)  OF  SUBDIVISION  TWO  OF
 SECTION  TWO HUNDRED FIFTY OF THIS ARTICLE, UNLESS SUCH TAXES SHALL HAVE
 BEEN PAID, NO MORTGAGE OF REAL PROPERTY SHALL BE RECORDED BY ANY  COUNTY
 CLERK  OR  REGISTER,  NOR  SHALL  SUCH MORTGAGE BE RELEASED, DISCHARGED,
 RECORDED OR RECEIVED IN EVIDENCE IN ANY ACTION OR PROCEEDING, NOR  SHALL
 ANY  ASSIGNMENT  OF  AGREEMENT  EXTENDING  SUCH  MORTGAGE  BE  RECORDED.
 Provided, however, except as otherwise provided in  subdivision  two  of
 this  section, in order to obtain a release or discharge of record where
 the mortgagor is not liable for the special additional tax imposed under
 subdivision one-a of section two hundred fifty-three  of  this  chapter,

 A. 3139                             7
 
 such  mortgagor  or  any subsequent owner of the mortgaged property or a
 part thereof may pay the tax imposed under such  subdivision  one-a  and
 penalty,  and may either apply for the credit allowable under this chap-
 ter  for  payment  of  such  additional tax or may maintain an action to
 recover the amounts so paid against any person liable for payment of the
 tax or any subsequent assignees or owners of such  mortgage  or  consol-
 idated  mortgage of which such mortgage is a part, as if such amounts of
 tax and penalty were a debt personally owed by such persons to the mort-
 gagor or subsequent owner.  No judgment or final order in any action  or
 proceeding  shall  be made for the foreclosure or the enforcement of any
 mortgage which is subject to any tax imposed by this article or  of  any
 debt  or  obligation  secured  by  any  such mortgage, unless the taxes,
 INCLUDING TAXES AUTHORIZED BY SUBPARAGRAPH THREE  OF  PARAGRAPH  (A)  OF
 SUBDIVISION  TWO OF SECTION TWO HUNDRED FIFTY OF THIS ARTICLE imposed by
 this article shall have been paid as  provided  in  this  article;  and,
 except AS otherwise provided in subdivision two of this section, whenev-
 er  it  shall appear that any mortgage has been recorded without payment
 of a tax imposed by this article there shall be added to the tax  a  sum
 equal  to  one-half of one per centum thereof for each month or fraction
 of a month for the period that the tax remains unpaid  except  where  it
 could  not  be determined from the face of the instrument that a tax was
 due, or where an advance has been made on a prior advance mortgage or  a
 corporate trust mortgage without payment of the tax, in which case there
 shall be added to the tax a sum equal to one per centum thereof for each
 month or fraction of a month for the period that the tax remains unpaid.
 In  any  case where a mortgage of real property subject to a tax imposed
 by this article has heretofore been recorded or is hereafter recorded in
 good faith, and the county clerk or  register  has  held  such  mortgage
 nontaxable  or  taxable at one amount, and it shall later appear that it
 was taxable or taxable at a greater amount, the commissioner of taxation
 and finance may remit the penalties in excess of  one-half  of  one  per
 centum per month.
   §  10.  This act shall take effect on the ninetieth day after it shall
 have become a law.