N.Y. Comp. Codes R. & Regs. Tit. 9 § 2104.6 - Tenant not using premises for own dwelling
(a) A certificate shall be issued for the
eviction of the tenant and subtenants where the landlord seeks in good faith to
recover possession of housing accommodations for which the tenant's lease or
other rental agreement has expired or otherwise terminated, and at the time of
termination the occupants of the housing accommodations are subtenants or other
persons who occupied under a rental agreement with the tenant, and no part of
the accommodations is used by the tenant as his dwelling.
(b) No tenant shall be evicted under this
section where the premises are operated as a rooming house and the eviction of
the tenant will result in the removal of the furniture and furnishings used by
the occupants, unless the landlord establishes that substantially similar
furniture and furnishings will be provided at the time of the removal and that
arrangements will be made for the occupants to remain in occupancy under
substantially the same terms and conditions as those existing on the date of
the issuance of the certificate.
(c) No occupant of housing accommodations,
other than the tenant, shall be evicted under this section, where the rental
agreement between the landlord and tenant contemplated the subletting by the
tenant of the entire accommodations or a substantial portion thereof.
(d)
(1)
Unless otherwise prohibited by occupancy restrictions based upon income
limitations pursuant to Federal, State or local law, regulations or other
requirements of governmental agencies, notwithstanding the provisions of
subdivision (a) of this section, the commission shall not issue an order
granting a certificate of eviction, and any member of the tenant's family, as
defined in paragraph (3) of this subdivision, shall not be evicted under this
section where the tenant has permanently vacated, as defined in paragraph (3)
of this subdivision, the housing accommodation and such family member has
resided with the tenant in the housing accommodation as a primary residence for
a period of no less than two years, or where such person is a "senior citizen"
or a "disabled person," as defined in paragraph (3) of this subdivision, for a
period of no less than one year, immediately prior to the permanent vacating of
the housing accommodation by the tenant, or from the inception of the tenancy
or commencement of the relationship, if for less than such periods.
(2) On a form prescribed or a facsimile of
such form approved by the commission, a tenant may, at any time, advise the
landlord of, or a landlord may at any time, but no more often than once in any
12 months, request from the tenant, the names of all persons other than the
tenant who are residing in the housing accommodation, and the following
information pertaining to such persons:
(i)
if the person is a "family member" as defined in paragraph (3) of this
subdivision; and
(ii) if the person
is, or upon the passage of the applicable minimum period of required residency,
may become a person entitled to protection from eviction pursuant to paragraph
(1) of this subdivision, and the date of the commencement of such person's
primary residence with the tenant; and
(iii) if the person is a "senior citizen" or
a "disabled person" as defined in paragraph (3) of this subdivision.
Failure of the tenant to provide such information to the landlord, regardless of whether the landlord requests the information, shall place upon all such persons not so made known to the landlord, who seek to exercise the right to protection from eviction as provided for in this subdivision, the affirmative obligation to establish such right.
(3) For the
purposes of this subdivision:
(i) family
member is defined as a spouse, son, daughter, stepson, stepdaughter, father,
mother, stepfather, stepmother, brother, sister, grandfather, grandmother,
grandson, granddaughter, father-in-law, mother-in-law, son-in-law, or
daughter-in-law of the tenant; or any other person residing with the tenant in
the housing accommodation as a primary residence who can prove emotional and
financial commitment, and interdependence between such person and the tenant.
Although no single factor shall be solely determinative, evidence which is to
be considered in determining whether such emotional and financial commitment
and interdependence existed, may include, without limitation, such factors as
listed below. In no event would evidence of a sexual relationship between such
persons be required or considered.
(a)
longevity of the relationship;
(b)
sharing of or relying upon each other for payment of household or family
expenses, and/or other common necessities of life;
(c) intermingling of finances as evidenced
by, among other things, joint ownership of bank accounts, personal and real
property, credit cards, loan obligations, sharing a household budget for
purposes of receiving government benefits, etc.;
(d) engaging in family-type activities by
jointly attending family functions, holidays and celebrations, social and
recreational activities, etc.;
(e)
formalizing of legal obligations, intentions, and responsibilities to each
other by such means as executing wills naming each other as executor and/or
beneficiary, conferring upon each other a power of attorney and/or authority to
make health care decisions each for the other, entering into a personal
relationship contract, making a domestic partnership declaration, or serving as
a representative payee for purposes of public benefits, etc.;
(f) holding themselves out as family members
to other family members, friends, members of the community or religious
institutions, or society in general, through their words or actions;
(g) regularly performing family functions,
such as caring for each other or each other's extended family members, and/or
relying upon each other for daily family services;
(h) engaging in any other pattern of
behavior, agreement, or other action which evidences the intention of creating
a long-term, emotionally committed relationship;
(ii) a senior citizen is defined as a person
who is 62 years of age or older;
(iii) a disabled person is defined as a
person who has an impairment which results from anatomical, physiological or
psychological conditions, other than addiction to alcohol, gambling, or any
controlled substance, which are demonstrable by medically acceptable clinical
and laboratory diagnostic techniques, and which are expected to be permanent
and which substantially limit one or more of such person's major life
activities.
(iv) A tenant shall be
considered to have permanently vacated the subject housing accommodation when
the tenant has permanently ceased residing in the housing accommodation. The
continued payment of rent by the tenant or the signing of renewal leases shall
not preclude a claim by a family member as defined in paragraph (3) of this
subdivision in seeking tenancy.
(4) For the purpose of determining whether a
landlord may charge the increase in maximum collectable rent authorized
pursuant to subdivision 9 of section 5 of the act, such landlord shall
periodically inform the commission, in a manner prescribed by the commission,
whether the tenant occupying the housing accommodation at the time such notice
is given is a family member, as defined in subparagraph (3)(i) of this
subdivision, who has established the right to protection from eviction pursuant
to paragraph (1) of this subdivision. Information that may be required by the
commission shall include, but is not limited to the commencement date of such
family member's primary residence in the housing accommodation with the
immediately preceding tenant of record. Failure of a landlord to give such
notice shall not deprive the landlord of the right to collect such sum, but
shall place upon the landlord the affirmative obligation to establish that
right in the event that entitlement thereto is challenged.
Notes
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