2023 New York Laws › PVH - Private Housing Finance › Article 3 - New York State Housing Finance Agency › 60 - Housing Project Repair Fund.

§ 60. Housing project repair fund. 1. As used in this section, (a) the
term  "current  economic  rent"  shall mean the rent or carrying charges
determined by the commissioner to be sufficient,  together  with  monies
available  to the company from the state, the federal government, or any
other source, to provide for the payment of  (i)  all  current  mortgage
interest,  fees,  charges,  and  amortization,  (ii)  all  current  real
property taxes and water and sewer charges, or payments in lieu thereof,
(iii) all other current operating expenses of the project, and (iv)  all
current  payments  into  reserve  funds  required  by  the commissioner;
provided,  however,  that  any  payments  required  for   reserves   for
replacements shall be in an amount which on an aggregate annual basis is
not  less  than  six-tenths  of one percent of the cost for constructing
such project as determined by the commissioner, except that in the  case
of a project receiving payments pursuant to this section which otherwise
would be made from such reserve for replacements, the commissioner shall
take  such  payments into account in determining the necessary amount of
payments to reserves for replacements; and
(b) the term "total economic rent" shall mean the sum of  the  current
economic  rent, as defined in paragraph (a) of this subdivision, plus an
amount  sufficient  to  amortize  all  mortgage  repayment   arrearages,
including  fees  and  charges,  and  all  real  property tax arrearages,
including applicable interest, if any, and all water  and  sewer  charge
arrearages, including applicable interest, if any, of the company.
2.  The  agency shall create and establish a special fund, to be known
as the housing project repair fund and shall  pay  into  such  fund  all
monies  appropriated  and  made available to the agency by the state for
the purposes of such fund  and  any  other  monies  which  may  be  made
available  to  the  agency  for the purposes of such fund from any other
source or sources.
3. Monies held in the housing project repair fund may be used  by  the
agency to provide for the correction of construction-related problems in
housing  projects  financed  by  the  agency  by  means of the necessary
repair, reconstruction or replacement of any of the facilities  or  site
conditions, the cost of which was included in the project cost and which
form  an integral part of the project, and for such other purposes which
may be necessary  to  effectuate  the  provisions  of  this  section.  A
construction-related  problem shall mean any deficiency or defect in the
design, construction or site preparation of a  project,  its  buildings,
utilities  and  grounds;  provided,  however, a deficiency which results
from conformance to design and construction standards in effect  at  the
time  of  such  construction  shall  not  constitute such a construction
related problem. The agency shall not expend monies  from  the  fund  as
payment   to   any   housing   company   for   the   correction   of   a
construction-related problem unless the following conditions  have  been
met:
a.   The  agency  has  either  (1)  received  a  certification  by  an
independent consultant with appropriate qualifications  engaged  by  the
agency  certifying  (i)  the scope and total cost of the corrective work
required to be performed at the project after taking into  consideration
emergency conditions, if any, which may exist, and such other factors as
may  be  appropriate; (ii) the cost effectiveness of alternative methods
of performing the corrective work; and (iii) the  extent  to  which  the
corrective  work  to  be  performed  results from a construction-related
problem, or (2) equivalent findings have been  made  in  arbitration  or
other fact finding procedures established by agreement between a housing
company, the commissioner and the agency; and
b.  The  agency has found and determined that (i) the projected annual
aggregate rent revenues for the project and any other  monies  available

to  the company from the state or federal government or any other source
as certified by the commissioner constitute current  economic  rent,  or
(ii)  a  mortgage  modification agreement has been entered into with the
housing  company which operates the project, after consultation with the
commissioner and in accordance  with  the  guidelines  approved  by  the
director  of the budget. Such a mortgage modification agreement shall be
entered into only in  the  event  that  the  agency  projects  that  the
imposition  of  total  economic  rent  will  require the company to vary
rental rates or carrying charges by an amount that  exceeds  the  rental
rates  or  carrying  charges of a company in effect immediately prior to
the date of such a modification by the greater of  twenty  percentum  or
ten  dollars  per  room per month. A mortgage modification agreement may
permit the variation of rental rates or carrying charges over  a  period
agreed  upon  by  the  agency  and  the  housing  company  not to exceed
seventy-five months from the effective date of the initial variation  in
rental  rates or carrying charges so as to result in the imposition of a
current economic rent level at a date no later than the beginning of the
seventy-sixth month, and shall make provision for  the  payment  by  the
housing  company  of all current real property taxes and water and sewer
charges, or payments in lieu thereof, and for the payment by the housing
company of (i) all real property tax  arrearages,  including  applicable
interest,  if  any,  over  a period not to exceed fifteen years from the
effective date of the initial variation  in  rental  rates  or  carrying
charges,   (ii)   all  water  and  sewer  charge  arrearages,  including
applicable interest, if any, over a period not to exceed  fifteen  years
from  the  effective  date  of  the initial variation in rental rates or
carrying charges, (iii) all  mortgage  repayment  arrearages,  including
fees  and charges, over a period not to exceed the scheduled date of the
expiration of the mortgage repayment period pursuant to  the  provisions
of  the  original  mortgage and (iv) any mortgage repayment deficiencies
accumulated during the term of the mortgage modification agreement  over
a period not to exceed ten years from the expiration of such agreement.
4.  Monies shall not be available from the fund to reimburse a housing
company for work performed  or  contracted  on  account  of  which  such
housing  company  has received a credit against monies otherwise payable
to the agency as mortgage repayments prior to the effective date of this
section, nor for work required to maintain, or correct  deficiencies  or
defects  in,  construction performed or contracted for by a municipality
or public utility, nor for work for which federal monies  are  available
as  determined  by  the  commissioner,  and  the agency shall not expend
monies beyond those  required  to  meet  the  portion  of  the  cost  of
correction  of  a  condition  which  constitutes  a construction-related
problem, as determined by the agency;  provided,  however,  that  monies
from  the  fund  may  be  used  to pay for the costs associated with the
hiring of an independent consultant engaged by the agency to  effectuate
the  purposes  of  this  section  and  for  otherwise  administering the
provisions of this section.
5. Notwithstanding any other provision  of  this  section  the  agency
shall allocate fifteen per centum of the monies from the fund as payment
to  housing  companies  financed  by  the agency or the state for energy
conservation improvements  or  tenant  health  and  safety  improvements
provided that the following conditions are met:
a.  The agency has received a certification from the commissioner that
energy saving or other modifications to  the  project  will  either  (i)
result  in  savings  projected over a seven year term or (ii) rectify an
imminent threat to tenant health and safety, and there is no alternative
source of funding to make such modifications.
b. The agency has reviewed the findings of the commissioner and is  in
agreement with such findings.
c.  The  agency has determined that the requirements of paragraph b of
subdivision three of this section have been satisfied.
d. The agency  has  determined  that  a  plan  for  performing  energy
conservation  or  tenant  health and safety improvements as submitted by
the housing company is the most cost-effective alternative available  to
the housing company.
The agency shall apportion such allocations among housing companies in
an  equitable  manner  and shall not make any such allocation in a given
year to a housing company which will, in such year, receive ten  percent
or  more  of  the  monies  available  in  the fund for the correction of
construction-related problems.
6. To assist in the administration of  this  section,  the  agency  is
authorized  to request the assistance of and utilize the services of any
state  department,  agency,  board,   commission   or   public   benefit
corporation,  and  any  such  department,  agency,  board, commission or
public benefit corporation is authorized to provide such assistance  and
service.
7.  Nothing  contained  in  this  section  or in the administration or
application hereof shall be construed as creating any private  right  of
action on the part of any persons, firm or corporation against the state
of  New York, the agency, the division of housing and community renewal,
or any officer or employee thereof  based  upon  a  construction-related
problem  and  neither the certification or finding of the existence of a
construction-related  problem  as  provided  in  this  section  nor  the
implementation  of  the  provisions of this section may be asserted as a
defense by way of answer, counterclaim, or otherwise in  any  action  or
proceeding  brought  to  enforce  the  provisions  of  a mortgage or any
related agreement made by the agency  with  respect  to  a  project,  or
brought by the commissioner with respect to a project, or brought by the
commissioner  to  enforce  any  of the provisions of this chapter or any
order made by him pursuant to this chapter. In  any  case  where  monies
held  in  the  housing project repair fund have been expended to provide
for the correction of any construction-related problem, the agency shall
accede to any and all rights and remedies which the housing  company  on
whose behalf such payment was made may have against any third party with
respect  to  any such construction-related problem to the extent of such
payment.
8. Notwithstanding any other provisions of  this  section,  no  monies
shall be expended from the housing project repair fund unless the agency
has  submitted  a plan to the director of the budget and the comptroller
describing the work required to repair the construction-related or other
problem, or problems, which also describes the method to be used for the
awarding of contracts for such work, and the director of the budget  and
the  comptroller  have  approved the plan and all contracts let pursuant
thereto as being in accordance with the provisions of this  section  and
in  accordance with subdivision two of section one hundred twelve of the
state finance law. In addition, no monies shall  be  expended  from  the
housing  project  repair  fund  unless  the  director  of the budget has
approved a plan detailing the scheduling of the work to be performed  to
repair  any  such  construction-related or other problem or problems and
the scheduling of the  payments  for  total  cost  of  the  work  to  be
performed.  In  addition,  no  monies in excess of the total cost of any
corrective work certified in accordance with paragraph a of  subdivision
three  of  this  section  shall  be  expended from such fund without the
approval of the director of the budget.
9. Notwithstanding any other law, no monies shall be provided pursuant
to this section unless a company shall require the tenants and occupants
residing in the housing project or projects to submit an  annual  income
affidavit  as  prescribed by the commissioner or the supervising agency,
as  the  case  may  be,  together  with  proper  documentation as and if
prescribed by the commissioner or the supervising agency,  as  the  case
may be. Upon submission of such affidavit and documentation, if any, the
company  shall  assess  such tenant or occupant the rental surcharge, if
applicable, prescribed pursuant to section thirty-one of this chapter on
the basis of the verified income of such  tenant  or  occupant.  If  the
tenant   or   occupant   shall   fail   to  submit  such  affidavit  and
documentation, or if such verification shall result  in  a  disagreement
caused  by  understatement of income and the tenant shall have failed to
correct such original affidavit and documentation on forms specified  by
the  commissioner within sixty days of notification by certified mail by
the commissioner addressed to the  tenant,  the  commissioner  shall  so
notify  the  company. Thereupon, the company shall assess such tenant or
occupant the maximum rental  surcharge  permitted  pursuant  to  section
thirty-one of this chapter, and provided further, that the company, with
the  approval of the commissioner or the supervising agency, as the case
may be, may proceed to remove said tenant or occupant from occupancy  on
the  ground  that  said tenant or occupant has materially misrepresented
income. The failure of the tenant to accurately verify such income shall
be prima facie evidence that such material misrepresentation was made by
the  tenant.  The  provisions  of  any  other  law   to   the   contrary
notwithstanding,  solely  for the purpose of verification of income, the
commissioner or the supervising agency, as the case may be, may contract
with the department of taxation and finance for  services  performed  by
such  department in verifying income information forwarded by a company,
the commissioner, or the supervising agency to such department.  Nothing
contained  herein  shall  be  construed to authorize the commissioner to
contract  with  such  department  to  provide  any  income   information
whatsoever   and   such   agreement  shall  be  limited  solely  to  the
verification of income  information.  No  officer  or  employee  of  the
division  of housing and community renewal, the supervising agency, or a
company shall be subject to any civil or criminal liability by reason of
his forwarding to the department of taxation and finance of  any  income
information pursuant to this subdivision, unless (i) such information is
knowingly  and  willfully  materially  misrepresented by such officer or
employee or (ii) such information is knowingly and willfully divulged to
any person, except in the discharge  of  such  officer's  or  employee's
duties  solely for the purpose of verification of income, for any reason
whatsoever. The commissioner or the supervising agency as the  case  may
be,  shall  promulgate rules and regulations to effect the provisions of
this subdivision. The provisions of the state freedom of information act
shall not apply to any income information obtained  by  a  company,  the
commissioner, or the supervising agency, as the case may be, pursuant to
the provisions of this subdivision.