N.Y. Priv. Hous. Fin. Law § 32

Current through 2024 NY Law Chapter 443

Section 32 - Supervision and regulation

The commissioner or the supervising agency as the case may be, may:

1. Examine a company and keep informed as to its general condition, its capitalization and the manner in which its property is constructed, acquired, rehabilitated, leased, operated or managed, and to its compliance with all provisions of law and orders of the commissioner or the supervising agency.

2. Require every company to file with him or it an annual report setting forth such information as the commissioner or the supervising agency may require, verified by the oath of any officer, general manager or other person in control of the company. Such report shall be in a form, cover a period, and be filed at a time as prescribed by the commissioner or the supervising agency.

3. From time to time make, amend and repeal supplementary rules and regulations for carrying into effect the provisions of this article provided, however, that such supplementary rules and regulations shall be strictly limited in their application to the means and methods of compliance with the provisions of this article to which such power relates.

4. Make such agreements with bondholders, mortgagees or creditors of a company to do or refrain from doing any act, not inconsistent with law, to protect the investment rights of the state of New York, the New York state housing finance agency, the New York city housing development corporation or of the municipality.

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(a) Administer oaths, take affidavits, hear testimony and take proof under oath at public or private hearings;

(b) subpoena and require the attendance of witnesses and the production of books and papers pertaining to any investigations and inquiries authorized by this article and examine them in relation to any matter concerning which the power to investigate is granted;

(c) issue commissions for the examination of witnesses who are out of the state or unable to attend or are excused from attendance;

(d) investigate into the affairs of a company and into the dealings, transactions or relationships of such company with third persons and into the affairs of any person, firm, corporation or other entity having a financial interest, whether direct or indirect, in the design, construction, acquisition, reconstruction, rehabilitation, improvement, financing or operation of any project undertaken by a company;

(e) intervene, as a matter of right, in any action or proceeding of which notice shall be given affecting the project of a company;

(f) take such steps in such action or proceeding as may be necessary to protect the public interest.

With regard to duties and liabilities arising out of this article the state, the commissioner or the supervising agency may be sued in the same manner as a private person. No costs shall be awarded against the commissioner, the state, or the supervising agency, as the case may be, in any such litigation.

6. In the event of a violation by a company of a provision of the certificate of incorporation or of law or of the loan or mortgage contract or of any rules and regulations duly promulgated pursuant to the provisions of this article, the commissioner or the supervising agency, as the case may be, may remove any or all of the existing directors of the company and appoint such person or persons who the commissioner or the supervising agency, as the case may be, in his or its sole discretion deems advisable, including officers or employees of the division of housing and community renewal or the supervising agency, as new directors to serve in the places of those removed. Directors so appointed need not be shareholders or meet other qualifications which may be prescribed by the certificate of incorporation or by-laws. In the absence of fraud or bad faith, directors so appointed shall not be personally liable for debts, obligations or liabilities of the corporation. Directors so appointed shall serve only for a period coexistent with the duration of such violation or until the commissioner or the supervising agency, as the case may be, is assured in a manner satisfactory to him or it against violations of a similar nature. Officers or employees of the division of housing and community renewal or of the supervising agency who are so appointed as directors shall serve in such capacity without compensation. No such removal may take place without written notice and an opportunity for the affected directors to appear and be heard before the agency or commissioner with respect to any alleged violation and the respective parties may be represented by counsel. Notwithstanding any inconsistent provision of any general, special or local law or any limitation contained in the provisions of any city charter, the state or a municipality acting by and through the commissioner or the supervising agency, as the case may be, shall save harmless and indemnify any officer or employee of the division of housing and community renewal or the supervising agency so appointed as a director, from financial loss arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act by such director, provided that such director was acting in the discharge of his duties and within the scope of his employment and that such loss did not result from the willful and wrongful act or gross negligence of such director and provided further that this save harmless and indemnification provision shall not in any way impair, limit or modify the rights and obligations of any insurer under any policy of insurance and shall inure only to directors so appointed and shall not enlarge or diminish the rights of any other party. No action or special proceeding based on or arising out of alleged negligence or other act by such director may be commenced against such director, municipality or the state unless a notice of claim shall have first been served in a manner consistent with service upon a municipality or the state, as the case may be.

7. Whenever the commissioner, in the case of a company undertaking or otherwise operating a state-aided project, or the supervising agency, in the case of a company undertaking or otherwise operating a municipally-aided project, shall be of the opinion that such company is failing or omitting, or is about to fail or omit to do anything required of it by law or by order of the commissioner or is doing or is about to do anything, or permitting anything, or is about to permit anything to be done, contrary to and in violation of law or of any order, regulation or directive of the commissioner or the supervising agency, as the case may be, or which is improvident or prejudicial to the interest of the public, the lienholders, the stockholders, or the tenants, the commissioner or the supervising agency, as the case may be, may, in addition to such other remedies as may be available, commence an action or proceeding in the supreme court of the state of New York in the name of the commissioner or the supervising agency, as the case may be, for the purpose of having such violations or threatened violations stopped and prevented, and in such action or proceeding the court may appoint a temporary or permanent receiver or both. Such action or proceeding shall be commenced by a petition to the supreme court, alleging the violation complained of and praying for appropriate relief. It shall thereupon be the duty of the court to specify the time, not exceeding twenty days after service of a copy of the petition, within which the company complained of must answer the petition. In case of any default or after answer the court shall immediately inquire into the facts and circumstances in such manner as the court shall direct without other or formal pleadings, and without respect to any technical requirements. Such other persons or corporations as it shall seem to the court necessary or proper to join as parties in order to make its order or judgment effective, may be joined as parties. The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that an order or an injunction, or both, issue, or provide for the appointment of a receiver as prayed for in the petition, and grant such other relief as the court may deem appropriate.

8. The commissioner or supervising agency may modify supervision of a company upon finding that duplicative supervisory functions may impose an undue regulatory burden or unnecessary expenditure of agency resources, by taking such actions as are deemed appropriate, including consolidating supervisory functions associated with different programs, and entering into memoranda of understanding with other agencies for the allocation of supervisory functions.

N.Y. Priv. Hous. Fin. Law § 32