Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Election.
A nonpurchasing tenant may elect not to purchase as an
eligible senior citizen or eligible disabled person as defined in General
Business Law section 352-e eee or as an eligible handicapped person as defined
in General Business Law section 352-e ee within 60 days from the presentation
date by completing the applicable form, SH-1, SH-2 or SH-3 prescribed by the
Department of Law and included in the offering plan immediately preceding the
introduction page, signing the election form and having the signature notarized
and personally delivering it to the named sponsor or agent at a location
specified by the sponsor in the plan or by mailing it by certified or
registered mail, return receipt requested to the named sponsor or agent at an
address specified by the sponsor in the plan.
(1) An election form is timely if it is
personally delivered or postmarked before midnight of the 60th day after the
presentation date subject to statutory rules of construction.
(2) The sponsor or agent shall acknowledge
receipt of the election form and promptly return an acknowledged copy to the
nonpurchasing tenant.
(b)
Determination of disputed
elections.
A sponsor who disputes the election by a nonpurchasing
tenant to be an eligible senior citizen, an eligible handicapped person or an
eligible disabled person, must apply to the Department of Law for a
determination by the Department of Law of such person's eligibility within 30
days following receipt of the election form.
(1) The application is timely if it is
personally delivered to the New York State Department of Law, Real Estate
Finance Bureau, 28 Liberty Street, New York, NY 10005, during business hours or
postmarked before midnight of the 30th day following receipt by the sponsor or
agent of the election form.
(2) An
untimely application will not be entertained, in which case the tenant whose
eligibility is disputed will be deemed eligible under the statute.
(3) The application shall include the
following:
(i) one copy of the election
form;
(ii) one original and one
copy of an affidavit, sworn to by a person having knowledge of the facts,
setting forth the following:
(a) that the
application is timely in accordance with this Part;
(b) the specific ground(s) for disputing the
election; and
(c) the basis for the
affiant's statement that the tenant is not an eligible senior citizen, eligible
handicapped person or eligible disabled person; and
(iii) two copies of all supporting
information or documentation in the possession of the sponsor or the affiant
bearing on eligibility.
(4) The application must be complete at
submission. The Department of Law need not consider any additional or
supplemental information subsequently submitted by sponsor.
(5) The Department of Law shall notify the
person that the sponsor disputes the person's election to be an eligible senior
citizen, eligible handicapped person or eligible disabled person and shall
request the person to submit an answer to the application on a form prescribed
by the Department of Law and support the answer with information or
documentation bearing on the specific grounds raised by sponsor to dispute the
election. The answer and supporting documentation must be submitted to the
Department of Law within 10 days of the date of the notice from the Department
of Law. Failure to submit an answer shall not preclude the Department of Law
from issuing a determination.
(6)
The Department of Law may, in its discretion, require the appearance of any
witness for the purpose of obtaining oral testimony on the specific grounds for
disputing the election. A witness shall be notified that he may be represented
by counsel.
(7) On the basis of the
information contained in the election form, the sponsor's application, the
answer, if any, and oral testimony, if any, the Department of Law shall issue a
determination of eligibility. The determination shall become final three days
after the Department of Law mails notice of the determination to the
parties.
(c)
Sale
of units or shares allocated to units occupied by eligible senior citizens,
eligible handicapped persons and eligible disabled persons.
(1) A unit or shares allocated to a unit
occupied by an eligible senior citizen, eligible handicapped person or eligible
disabled person or a person seeking exemption as an eligible senior citizen,
eligible handicapped person or eligible disabled person, may not be offered to
a third party during the exclusive purchase period granted to tenants in
occupancy in the offering plan and any amendments thereto unless the sponsor,
in writing, waives any right to challenge the eligibility of the occupant of
the unit.
(2) Where the sponsor has
disputed the eligibility of a person seeking an exemption, the unit or shares
allocated thereto may not be offered to a third party for 30 days after the
Department of Law has made its determination of eligibility. If a proceeding to
review such determination is commenced under article 78 of the Civil Practice
Law and Rules in a court of competent jurisdiction, the unit or shares
allocated thereto may not be offered to a third party for 30 days after notice
of entry of the final order in such proceeding. If such final determination or
order finds that the person seeking the exemption is not an eligible senior
citizen, eligible handicapped person or eligible disabled person, such person
may purchase the unit or shares allocated thereto for a period not to exceed 30
days following such final determination or order on the most favorable terms
offered to tenants in occupancy at any time prior to such final determination
or order; provided, however, that if such final determination or order includes
a finding that the exemption was sought fraudulently or made in bad faith, such
person may purchase the unit or shares allocated thereto as provided in
paragraph (3) of this subdivision.
(3) Notwithstanding an election not to
purchase, an eligible senior citizen, eligible handicapped person or eligible
disabled person may purchase the unit or shares allocated thereto on the terms
then offered to tenants in occupancy.
