<PAGE>
As filed with the Securities and Exchange Commission on May 11, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HOME PROPERTIES OF NEW YORK, INC.
(exact name of registrant as specified in its charter)
MARYLAND 16-1455126
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
--------------------------------- -------------------
850 Clinton Square, Rochester, New York 14604
(Address of Principal Executive Offices) (Zip Code)
HOME PROPERTIES OF NEW YORK, INC.
1994 STOCK BENEFIT PLAN, AS AMENDED
(Full title of the Plan)
Ann M. McCormick, Esq.
Vice President, Secretary and General Counsel
Home Properties of New York, Inc.
850 Clinton Square
Rochester, New York 14604
(716) 546-4900
- ---------------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
- ---------------------------------------------------------------------------
Copy to:
Deborah McLean Quinn, Esq.
Nixon, Hargrave, Devans & Doyle LLP
900 Clinton Square
Rochester, New York 14604
(716) 263-1000
___________________________________________________________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount to be price per Offering Registration
Registered Registered share* Price* Fee
- ---------- ---------- ---------- ---------- --------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000** $20.4375 $20,437,500 $7,047.41
$.01 par value
</TABLE>
* Inserted solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based upon the average of the high and low
prices for the registrant's Common Stock on the New York Stock Exchange
reported as of June 6, 1996.
<PAGE>
** Shares to be issued pursuant to stock options or restricted stock
awards, or in settlement of stock appreciation rights, granted under the
registrant's 1994 Stock Benefit Plan, as Amended.
Approximate date of commencement of the proposed sale of the securities
to the public:
From time to time after the Registration Statement becomes effective.
<PAGE>
Part II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents which have been filed by Home
Properties of New York, Inc. (the "Company") with the Securities
and Exchange Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, filed pursuant to Section 13
of the Securities Exchange Act of 1934.
(b) All other reports filed by the Company pursuant to
Sections 13(a) and 15(d) of the Securities Exchange Act of 1934
since December 31, 1995, including specifically, but not limited
to, the Company's Form 8-K dated January 9, 1996 and Form 8-K/A
dated March 14, 1996.
(c) The description of the Company's Common Stock
contained in the Company's registration statement filed under
Section 12 of the Securities and Exchange Act, including all
amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company or the
Company's 1994 Stock Benefit Plan, as Amended (the "Plan")
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 which indicates that all securities offered
hereby have been sold or which deregisters all securities
remaining unsold shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of
such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the Plan and Common Stock has been passed
upon by Ann M. McCormick, Esq., Vice President, Secretary and
General Counsel of the Company. Mrs. McCormick is eligible to
participate in the Plan and currently holds options to acquire
15,000 shares of Common Stock, of which options to acquire 3,000
shares of Common Stock are vested and presently exercisable.
Mrs. McCormick also owns one share of Common Stock of the Company
and 2,302 limited partnership units in Home Properties of New
York, L.P.
Item 6. Indemnification of Directors and Officers
The Company's officers and directors are and will be
indemnified under Maryland law, the Articles of Incorporation of
the Company and the Partnership Agreement ("Operating Partnership
Agreement") of Home Properties of New York, L.P., a New York
limited partnership of which the Company is the general partner
(the "Operating Partnership"), against certain liabilities. The
Articles of Incorporation require the Company to indemnify its
directors and officers to the fullest extent permitted from time
to time by the laws of Maryland. The Bylaws contain provisions
which implement the indemnification provisions of the Articles of
Incorporation.
The Maryland General Corporation Law ("MGCL") permits a
corporation to indemnify its directors and officers, among
others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with
any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is
established that the act or omission of the director or officer
was material to the matter giving rise to the proceeding and was
committed in bad faith or was the result of active and deliberate
dishonesty, or the director or officer actually received an
improper personal benefit in money, property or services, or in
the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was
unlawful. No amendment of the Articles of Incorporation of the
Company shall limit or eliminate the right to indemnification
provided with respect to acts or omissions occurring prior to
such amendment or repeal. Maryland law permits the Company to
provide indemnification to an officer to the same extent as a
director, although additional indemnification may be provided if
such officer is not also a director.
The MGCL permits the articles of incorporation of a
Maryland corporation to include a provision limiting the
liability of its directors and officers to the corporation and
its stockholders for money damages, subject to specified
restrictions. The MGCL does not, however, permit the liability
of directors and officers to the corporation or its stockholders
to be limited to the extent that (1) it is proved that the person
actually received an improper benefit or profit in money,
property or services (to the extent such benefit or profit was
received) or (2) a judgment or other final adjudication adverse
to such person is entered in a proceeding based on a finding that
the person's action, or failure to act, was the result of active
and deliberate dishonesty and was material to the cause of action
adjudicated in the proceeding. The Articles of Incorporation of
the Company contain a provision consistent with the MGCL. No
amendment of the Articles of Incorporation shall limit or
eliminate the limitation of liability with respect to acts or
omissions occurring prior to such amendment or repeal.
The Operating Partnership Agreement also provides for
indemnification of the Company and its officers and directors to
the same extent indemnification is provided to officers and
directors of the Company in its Articles of Incorporation, and
limits the liability of the Company and its officers and
directors to the Operating Partnership and its partners to the
same extent liability of officers and directors of the Company to
the Company and its stockholders is limited under the Company'
Articles of Incorporation.
The Company has entered into indemnification agreements
with each of the Company's directors and certain of its officers.
The indemnification agreements require, among other things, that
the Company indemnify its directors and those officers to the
fullest extent permitted by law, and advance to the directors and
officers all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted.
The Company also must indemnify and advance all expenses incurred
by directors and officers seeking to enforce their rights under
the indemnification agreements, and cover directors and officers
under the Company's directors' and officers' liability insurance.
Although the form of indemnification agreement offers
substantially the same scope of coverage afforded by provisions
in the Articles of Incorporation and the Bylaws and the Operating
Partnership Agreement of the Operating Partnership, it provides
greater assurance to directors and officers that indemnification
will be available, because, as a contract, it cannot be modified
unilaterally in the future by the Board of Directors or by the
stockholders to eliminate the rights it provides.
The Company has purchased insurance under a policy that
insures both the Company and its officers and directors against
exposure and liability normally insured against under such
policies, including exposure on the indemnities described above.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or
Form S-8, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-8, and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Rochester, State of New York, on the 7th day of June, 1996.
HOME PROPERTIES OF NEW YORK, INC.
/s/ Norman Leenhouts
By: ----------------------------
Norman P. Leenhouts
Chairman and Co-Chief
Executive Officer
/s/ Nelson B. Leenhouts
By: ----------------------------
Nelson B. Leenhouts
President and Co-Chief
Executive Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby severally constitutes and appoints
Norman P. Leenhouts, Nelson B. Leenhouts, Richard J. Crossed and
Amy L. Tait, and each of them, his true and lawful attorney-in-
fact and agent, with full power of substitution and
resubstitution for him and in his name, place and stead, in any
and all capacities to sign any and all amendments (including post-
effective amendments) to the Registration Statement, and to file
the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agents, and
each of them, full power and authority to do and perform each and
every act and thing requisite or necessary fully to all intents
and purposes as he might or could do in person, hereby ratifying
and confirming all that each said attorneys-in-fact and agents or
any of them or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<PAGE>
SIGNATURE TITLE DATE
/s/ Norman P. Leenhouts Director, Chairman June 11, 1996
- ------------------------- and Co-Chief Executive
Norman P. Leenhouts Officer (Principal
Executive Officer)
/s/ Nelson B. Leenhouts Director, President June 11, 1996
- ------------------------- and Co-Chief Executive
Nelson B. Leenhouts Officer (Principal
Executive Officer)
/s/ Richard J. Crossed Director, Executive June 11, 1996
- ------------------------- Vice President
Richard J. Crossed
/s/ Amy L. Tait Director, Executive June 11, 1996
- ------------------------- Vice President and
Amy L. Tait Chief Operating Officer
/s/ David P. Gardner Vice President, June 11, 1996
- ------------------------- Chief Financial
David P. Gardner Officer and Treasurer
(Principal Financial
and Accounting Officer)
/s/ Burton S. August Director June 11, 1996
- -------------------------
Burton S. August, Sr.
/s/ William Balderston, III Director June 11, 1996
- -----------------------------
William Balderston, III
/s/ Leonard F. Helbig, III Director June 11, 1996
- -----------------------------
Leonard F. Helbig, III
/s/ Roger W. Kober Director June 11, 1996
- -----------------------------
Roger W. Kober
/s/ Clifford W. Smith, Jr. Director June 11, 1996
- -----------------------------
Clifford W. Smith, Jr.
/s/ Paul L. Smith Director June 11, 1996
- -----------------------------
Paul L. Smith
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Location
4-1 Home Properties of New York, Inc. Included as part of
1994 Stock Benefit Plan, as Amended the electronic
submission of this
Registration
Statement
4-2 Articles of Incorporation of Home Incorporated by
Properties of New York, Inc. reference to Home
Properties of
New York, Inc.
Registration on
Form S-11, File No.
33-78862 (the "S-11
Registration
Statement")
4-3 Articles of Amendment and Restatement Incorporated by
of Articles of Incorporation of reference
Home Properties of New York, Inc. to the S-11
Registration
Statement
4-4 Amended and Restated By-laws of Incorporated by
Home Properties of New York, Inc. reference to the
S-11 Registration
Statement
5 Opinion of Ann M. McCormick, Esq. Included as part of
as to legality of Common Stock the electronic
submission of this
Registration
Statement
23-1 Consent of Ann M. McCormick, Esq. Contained in opinion
filed as Exhibit 5
to this Registration
Statement
23-2 Consent of Coopers & Lybrand L.L.P., Included as part of
independent accountants the electronic
submission of this
Registration
Statement
<PAGE>
Exhibit 4.1
HOME PROPERTIES OF NEW YORK, INC.
1994 STOCK BENEFIT PLAN
AS AMENDED
1. PURPOSES OF THE PLAN
The purposes of this 1994 Stock Benefit Plan, as
amended (the "Plan") are to enable Home Properties of New York,
Inc. (the "Company") and its Subsidiaries to attract and retain
the services of key employees and persons with managerial,
professional or supervisory responsibilities, including, but not
limited to, members of the Board of Directors, responsible for
the future success of the Company, and to provide them with
increased motivation and incentive to exert their best efforts on
behalf of the Company by enlarging their personal stake in its
success.
2. GENERAL PROVISIONS
2.1 Definitions
As used in the Plan:
(a) "Award" means a grant of a Stock Option,
Restricted Stock or SAR.
(b) "Board of Directors" means the Board of Directors of
the Company.
(c) "Code" means the Internal Revenue Code of 1986,
including any and all amendments thereto.
(d) "Committee" means the committee appointed by the Board
of Directors from time to time to administer the Plan
pursuant to Section 2.2.
(e) "Common Stock" means the Company's Common Stock,
$.01 par value.
(f) "Company" means Home Properties of New York, Inc. and
any of its predecessors, subsidiaries or successors.
(g) "Eligible Director" means a member of the Company's Board of
Directors who is not otherwise an employee of
the Company or any Subsidiary.
(h) "Director's Option" means an option grant made to an
Eligible Director pursuant to Section 4.2.
(i) "Fair Market Value" means, with respect to a specific date,
(a) if the Common Stock is listed or admitted to
trading on any securities exchange or the NASDAQ -
National Market System, the closing price on such day, or
if no sale takes place on such day, the average of the
closing bid and asked prices on such day, or (b) if the
Common Stock is not listed or admitted to trading on
any securities exchange or the NASDAQ - National
Market System, the last reported sale price on
such day or, if no sale takes place on such day,
the average of the closing bid and asked prices
on such day, as reported by a reliable quotation
source designated by the Plan Administrator, or
if no such last reported sale price or closing
bid and asked prices are available, the average
of the reported high bid and low asked prices on
such day, as reported by a reliable quotation
source designated by the Plan Administrator, or
if there shall be no bid and asked prices on
such day, the average of the high bid and low
asked prices, as so reported, on the most recent
day (not more than ten days prior to the date in
question) for which prices have been so
reported; provided that if there are no bid and
asked prices reported during the ten days prior
to the date in question, the Fair Market Value
of the Common Stock shall be determined by the
Plan Administrator acting in good faith on the
basis of such quotations and other information
as it considers, in its reasonable judgment,
appropriate.
(j) "Incentive Stock Option" means an option granted under
the Plan which is intended to qualify as an incentive
stock option under Section 422 of the Code.
(k) "Non-Qualified Stock Option" means an option granted under
the Plan which is not an Incentive Stock Option.
(l) "Participant" means a person to whom an Award has been
granted under the Plan.
(m) "Plan Administrator" means the Board of Directors prior to
consummation of the Company's initial public
offering of its Common Stock, and the Committee
thereafter.
(n) "Restricted Stock" means shares of Common Stock awarded to
a Participant subject to such conditions on
vesting, transferability and other restrictions
as are established by the Plan Administrator.
(o) "Rule 16b-3" means Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended from time to
time, or any successor rule.
(p) "Stock Appreciation Right" means the right to receive a
number of shares of Common Stock, an amount of cash, or a
combination of shares and cash, the aggregate
value of which is determined by reference to a
change in the Fair Market Value of the Common
Stock (referred to herein also as "SARs").
(q) "Stock Option" means an Incentive Stock Option or a
Non-Qualified Stock Option granted under the Plan.
(r) "Subsidiary" means Home Properties of New York, L.P.,
Home Properties Management, Inc., any partnership of which
the Company is general partner and holder of a
majority of interests or any corporation (other
than the Company) in an unbroken chain of
corporations beginning with the Company if, at
the time of the granting of the Stock Option,
each of the corporations other than the last
corporation in the unbroken chain owns 50% or
more of the total voting power of all classes of
stock in one of the other corporations in such chain.
2.2 Administration of the Plan
(a) The Plan shall be administered
by the Plan Administrator which shall be the Board
of Directors prior to consummation of the Company's
initial public offering and by the Committee
thereafter which shall at all times consist of two
(2) or more persons, each of whom shall be members
of the Board of Directors. Each member of the
Committee shall be a disinterested person (as such
term is defined in Rule 16b-3). The Board of
Directors may from time to time remove members from,
or add members to, the Committee. Vacancies on the
Committee, howsoever caused, shall be filled by the
Board of Directors. The Plan Administrator shall
select one of its members as Chairman, and shall
hold meetings at such times and places as it may
determine.
(b) The Plan Administrator shall have the full power, subject
to and within the limits of the Plan, to: (i) interpret and
administer the Plan, and any Awards made under it; (ii) make
and interpret rules and regulations for the
administration of the Plan and to make changes in
and revoke such rules and regulations (and in the
exercise of this power, shall generally determine
all questions of policy and expediency that may
arise and may correct any defect, omission, or
inconsistency in the Plan or any agreement
evidencing the grant of any Award in a manner and to
the extent it shall deem necessary to make the Plan
fully effective); (iii) determine those persons to
whom Awards and Director's Options shall be granted
and the number of Stock Options other than
Director's Options to be granted to any person; (iv)
determine the terms of Awards granted under the
Plan, consistent with the provisions of the Plan;
and (v) generally, exercise such powers and perform
such acts in connection with the Plan as are deemed
necessary or expedient to promote the best interests
of the Company. The interpretation and construction
by the Plan Administrator of any provisions of the
Plan or of any Award shall be final, binding and
conclusive.
(c) The Committee may act only by a majority of its members then
in office; however, the Plan Administrator may authorize any
one or more of its members or any officer of the Company to
execute and deliver documents on behalf of the Plan
Administrator.
(d) No member of the Plan Administrator shall be liable for
any action taken or omitted to be taken or for any
determination made by him or her in good faith with respect
to the Plan, and the Company shall indemnify and hold
harmless each member of the Plan Administrator
against any cost or expense (including counsel fees)
or liability (including any sum paid in settlement
of a claim with the approval of the Plan
Administrator) arising out of any act or omission in
connection with the administration or interpretation
of the Plan, unless arising out of such person's own
fraud or bad faith.
2.3 Effective Date
The Plan shall become effective upon its adoption
by the Board of Directors, and Awards may be granted
upon such adoption and from time to time thereafter,
subject, however, to approval of the Plan by the
affirmative vote of the holders of a majority of the
shares of the Common Stock.
2.4 Duration
If approved by the shareholders of the Company,
as provided in Section 2.3, unless sooner terminated
by the Board of Directors, the Plan shall remain in
effect for a period of ten (10) years following its
adoption by the Board of Directors.
2.5 Shares Subject to the Plan
The maximum number of shares of Common Stock
which may be subject to Awards granted under the
Plan shall be 1,000,000, and the number of such
shares which shall be available for issuance
pursuant to Director's Options made to Eligible
Directors under the Plan shall be 54,000. The
Awards shall be subject to adjustment in accordance
with Section 7.1, and shares to be issued upon
exercise of Awards may be either authorized and
unissued shares of Common Stock or authorized and
issued shares of Common Stock purchased or acquired
by the Company for any purpose. If an Award or
portion thereof shall expire or is terminated,
cancelled or surrendered for any reason without
being exercised in full, the unpurchased shares of
Common Stock which were subject to such Award or
portion thereof shall be available for future grants
of Awards under the Plan.
2.6 Amendments
The Plan may be suspended, terminated or
reinstated, in whole or in part, at any time by the
Board of Directors. The Board of Directors may from
time to time make such amendments to the Plan as it
may deem advisable, including, with respect to
Incentive Stock Options, amendments deemed necessary
or desirable to comply with Section 422 of the Code
and any regulations issued thereunder; provided,
however, that (i) no amendment shall be made more
than once every six (6) months that would change the
amount, price or timing of Director's Options, and
(ii) without the approval of the Company's
shareholders no amendment shall be made which:
(a) Increases the maximum number of shares of Common Stock
which may be subject to Awards granted under the Plan
(other than as provided in Section 7.1); or
(b) Extends the term of the Plan; or
(c) Increases the period during
which a Stock Option may be exercised beyond ten
(10) years from the date of grant; or
(d) Otherwise materially increases
the benefits accruing to Participants or Eligible
Directors under the Plan; or
(e) Materially modifies the
requirements as to eligibility for participation in
the Plan; or
(f) Will cause the Plan or Awards
granted under the Plan to fail to meet the
requirements of Rule 16b-3.
Except as otherwise provided herein, termination
or amendment of the Plan shall not, without the
consent of a Participant, affect such Participant's
rights under any Award previously granted to such
Participant.
2.7 Participants and Grants
Awards, other than Director's Options, may be
granted by the Plan Administrator to those persons
other than Eligible Directors who the Plan
Administrator determines have the capacity to make a
substantial contribution to the success of the
Company. The Plan Administrator may grant Stock
Options other than Director's Options to purchase
such number of shares of Common Stock (subject to
the limitations of Section 2.5) as the Plan
Administrator may, in its sole discretion,
determine. In granting Stock Options other than
Director's Options under the Plan, the Plan
Administrator, on an individual basis, may vary the
number of Incentive Stock Options or Non-Qualified
Stock Options as between Participants and may grant
Incentive Stock Options and/or Non-Qualified Stock
Options to a Participant in such amounts as the Plan
Administrator may determine in its sole discretion.
3. STOCK OPTIONS
3.1 General
All Stock Options granted under the Plan shall be
evidenced by written agreements executed by the
Company and the Participant to whom granted, which
agreement shall state the number of shares of Common
Stock which may be purchased upon the exercise
thereof and shall contain such investment
representations and other terms and conditions as
the Plan Administrator may from time to time
determine, or, in the case of Incentive Stock
Options, as may be required by Section 422 of the
Code, or any other applicable law.
3.2 Price
Subject to the provision of Sections 3.6(d) and
7.1, the exercise price per share of Common Stock
subject to a Stock Option shall, in no case, be less
than one hundred percent (100%) of the Fair Market
Value of a share of Common Stock on the date the
Stock Option is granted.
3.3 Period
The duration or term of each Stock Option granted
under the Plan shall be for such period as the Plan
Administrator shall determine but in no event more
than ten (10) years from the date of grant thereof.
3.4 Exercise
Stock Options other than Director's Options may
be exercisable immediately upon granting of the
Stock Option or at such other time or times as the
Plan Administrator shall specify when granting the
Stock Option. Once exercisable, a Stock Option
shall be exercisable, in whole or in part, until the
expiration or termination of their terms by giving a
written notice of exercise, signed by the person
exercising the Stock Option, to the Secretary of the
Company at the principal office of the Company
specifying the number of shares of Common Stock as
to which the Stock Option is then being exercised
together with payment of the full exercise price for
the number of shares being purchased. The date both
such notice and payment are received by the office
of the Corporate Secretary of the Company shall be
the date of exercise of the Stock Option as to such
number of shares. Notwithstanding any provision to
the contrary, no Stock Option may at any time be
exercised with respect to a fractional share.
3.5 Payment of Exercise Price
The exercise price for shares of Common Stock as
to which a Stock Option other than a Director's
Option has been exercised and any amount required to
be withheld, as contemplated by Section 7.3, may be
paid:
(a) in cash, or by check, bank draft or money order payable in
United States dollars to the order of the Company; or
(b) by the delivery by the Participant to the Company of
whole shares of Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the aggregate of the
exercise price of Common Stock as to which the Stock
Option is then being exercised; or
(c) by the delivery of instructions to the
Company to withhold from the shares of Common Stock
that would otherwise be issued on the exercise that
number of whole shares of Common Stock having a
Fair Market Value equal to the exercise price; or
(d) by any combination of (a), (b) or (c) above.
The Plan Administrator may, in its discretion,
impose limitations, conditions and prohibitions on
the use by a Participant of shares of Common Stock
to pay the exercise price payable by such
Participant upon the exercise of a Stock Option.
3.6 Special Rules for Incentive Stock Options
Notwithstanding any other provision of the Plan,
the following provisions shall apply to Incentive
Stock Options granted under the Plan:
(a) Incentive Stock Options shall only be
granted to Participants who are employees of the
Company or its Subsidiaries.
(b) To the extent that the aggregate Fair Market
Value of Common Stock, with respect to which
Incentive Stock Options are exercisable for the
first time by a Participant during any calendar year
under this Plan and any other Plan of the Company or
a Subsidiary, exceeds $100,000, such Stock Options
shall be treated as Non-Qualified Stock Options.
(c) Any Participant who disposes of shares of
Common Stock acquired upon the exercise of an
Incentive Stock Option by sale or exchange either
within two (2) years after the date of the grant of
the Incentive Stock Option under which the shares
were acquired or within one (1) year of the
acquisition of such shares, shall promptly notify
the Secretary of the Company at the principal office
of the Company of such disposition, the amount
realized, the exercise price per share paid upon
exercise and the date of disposition.
(d) No Incentive Stock Option shall be granted
to a Participant who, at the time of the grant, owns
stock representing more than ten percent (10%) of
the total combined voting power of all classes of
stock either of the Company or any parent or
Subsidiary of the Company, unless the purchase price
of the shares of Common Stock purchasable upon
exercise of such Incentive Stock Option is at least
one hundred ten percent (110%) of the Fair Market
Value (at the time the Incentive Stock Option is
granted) of the Common Stock and the Incentive Stock
Option is not exercisable more than five (5) years
from the date it is granted.
3.7 Termination of Employment
(a) In the event a Participant's
employment by, or relationship with, the Company
shall terminate for any reason other than those
reasons specified in Sections 3.7(b), (c),(d) or (e)
hereof while such Participant holds Stock Options
granted under the Plan, then all rights of any kind
under any outstanding Option held by such
Participant which shall not have previously lapsed
or terminated shall expire immediately.
(b) If a Participant's employment
by, or relationship with, the Company or its
Subsidiaries shall terminate as a result of such
Participant's total disability, each Stock Option
held by such Participant (which has not previously
lapsed or terminated) shall immediately become fully
exercisable as to the total number of shares of
Common Stock subject thereto (whether or not
exercisable to that extent at the time of such
termination) and shall remain so exercisable by such
Participant for a period of one (1) year after
termination unless such Stock Option expires earlier
by its terms. For purposes of the foregoing
sentence, "total disability" shall mean permanent
mental or physical disability as determined by the
Plan Administrator.
(c) In the event of the death of a
Participant, each Stock Option held by such
Participant (which has not previously lapsed or
terminated) shall immediately become fully
exercisable as to the total number of shares of
Common Stock subject thereto (whether or not
exercisable to that extent at the time of death) by
the executor or administrator of the Participant's
estate or by the person or persons to whom the
deceased Participant's rights thereunder shall have
passed by will or by the laws of descent or
distribution, and shall remain so exercisable for a
period of one (1) year after such Participant's
death unless such Stock Option expires earlier by
its terms.
(d) If a Participant's employment
by the Company shall terminate by reason of such
Participant's retirement in accordance with Company
policies, each Stock Option held by such Participant
at the date of termination (which has not previously
lapsed or terminated) shall immediately become fully
exercisable as to the total number of shares of
Common Stock subject hereto (whether or not
exercisable to that extent at the time of such
termination) and shall remain so exercisable by such
Participant for a period of three (3) months after
termination, unless the Stock Option expires earlier
by its terms.
(e) In the event the Company
terminates the employment of a Participant who at
the time of such termination was an officer of the
Company and had been continuously employed by the
Company during the five (5) year period immediately
preceding such termination, for any reason except
"good cause" (hereafter defined) and except upon
such Participant's death, total disability or
retirement in accordance with Company policies, each
Stock Option held by such Participant (which has not
previously lapsed or terminated and which has been
held by such Participant for more than six (6)
months prior to such termination) shall immediately
become fully exercisable as to the total number of
shares of Common Stock subject thereto (whether or
not exercisable to that extent at the time of such
termination) and shall remain so exercisable for a
period of three (3) months after such termination
unless such Stock Option expires earlier by its
terms. A termination for "good cause" shall have
occurred only if the Participant in question is
terminated, by written notice (i) because of his or
her conviction of a felony for a crime involving an
act of fraud or dishonesty, (ii) intentional acts or
omissions on such Participant's part causing
material injury to the property or business of the
Company, or (iii) because such Participant shall
have breached any material term of any employment
agreement in place between such Participant and the
Company and shall have failed to correct such breach
within any grace period provided for in such
agreement. "Good cause" for termination shall not
include bad judgment or any act or omission
reasonably believed by such Participant, in good
faith, to have been in, or not opposed to, the best
interests of the Company.
3.8 Effect of Leaves of Absence
It shall not be considered a termination of
employment when a Participant is on military or sick
leave or such other type of leave of absence which
is considered by the Plan Administrator as a
continuing of the employment relationship of the
Participant with the Company or any of its
Subsidiaries. In case of such leave of absence, the
employment relationship shall be deemed to have
continued until the later of (i) the date when such
leave shall have been ninety (90) days in duration,
or (ii) the date as of which the Participant's right
to re-employment shall have no longer been
guaranteed either by statute or contract.
4. DIRECTOR'S OPTIONS
4.1 General
Each Director's Option granted under the Plan
shall be evidenced by an agreement (an "Agreement")
duly executed on behalf of the Company and by the
Eligible Director to whom such Director's Option is
granted and dated as of the applicable date of
grant. Each Agreement shall be signed on behalf of
the Company by an officer or officers delegated such
authority by the Plan Administrator using manual
signature. Each Agreement shall comply with and be
subject to the terms and conditions of the Plan.
Any Agreement may contain such other terms,
provisions and conditions not inconsistent with the
Plan or this Section 4 as may be determined by the
Plan Administrator. All Director's Options granted
under the Plan shall be Non-Qualified Stock Options.
4.2 Director's Options
Subject to the limitation in Section 4.11, an
option to purchase 3,000 shares of Common Stock (as
adjusted pursuant to Section 7.1) shall be granted
upon the effective date of the election of each
member of the Company's Board of Directors (each, a
"Director") and an option to purchase an additional
3,000 shares of Common Stock (as adjusted pursuant
to Section 7.1) shall be granted automatically in
each of the years 1995 and 1996, immediately
following the annual meeting the Company's
shareholders, who is an Eligible Director at such
time immediately following such annual meeting
beginning with the annual meeting of the
shareholders at which the shareholders approve the
Plan.
4.3 Director's Option Exercise Price
The exercise price per share for a Director's
Option shall be the Fair Market Value determined in
accordance with Section 2.1(i) on the date of grant
or, in the case of options granted on the effective
date of the Company's initial public offering of its
Common Stock, the initial public offering price.
4.4 Exercise
Director's Options shall be exercisable
immediately upon grant and are exercisable in whole
or in part, at any time from time to time, until the
expiration or termination of their term in
accordance with Section 4.6 by giving written notice
of exercise, signed by the person exercising the
Director's Option, to the Secretary of the Company
at the principal office of the Company specifying
the number of shares of Common Stock as to which the
Director's Option is then being exercised together
with payment of the full exercise price for the
number of shares of Common Stock to be purchased.
The date both such notice and payment are received
by the office of the Corporate Secretary of the
Company shall be the date of exercise of the
Director's Option as to such number of shares.
Notwithstanding any provision to the contrary, no
Director's Option may at any time be exercised with
respect to a fractional share.
4.5 Payment of Exercise Price
The exercise price for may be paid:
(a) in cash, or by check,
bank draft or money order payable in United
States dollars to the order of the Company; or
(b) by the delivery by the
Director to the Company of whole shares of
Common Stock having an aggregate Fair Market
Value on the date of exercise equal to the
aggregate exercise price of the Common Stock as
to which the Stock Option is then being
exercised; or
(c) delivery of
instructions to the Company to withhold from the
shares of Common Stock that would otherwise be
issued on the exercise that number of whole
shares having a Fair Market Value equal to the
exercise price; or
(d) by any combination of (a), (b) or (c) above.
4.6 Term of Director's Options
Each Director's Option shall expire five (5)
years from its date of grant, but shall be subject
to earlier termination as follows:
(a) In the event of the
termination of a Director's Option holder's service
as a Director, by reason of his or her removal as
Director (by the shareholders, the Board of
Directors or otherwise), the then-outstanding
Director's Options of such holder (whether or not
then exercisable) shall automatically expire on (and
may not be exercised on) the effective date of such
termination.
(b) In the event of the
termination of a Director's Option holder's service
as a Director by reason of retirement or total and
permanent disability, the then-outstanding
Director's Options of such holder shall become
exercisable, to the full extent of the number of
shares of Common Stock remaining covered by such
Director's Options, regardless of whether such
Director's Options were previously exercisable, and
each such Director's Option shall expire one (1)
year after the date of such termination or on the
stated expiration date, whichever is earlier. For
purposes of this Section 4.7, the phrase "by reason
of retirement" means (a) mandatory retirement
pursuant to Board policy or (b) termination of
service by deciding not to stand for re-election.
(c) In the event of the death of a
Director's Option holder while such holder is a
Director, the then-outstanding Director's Options of
such holder shall become exercisable, to the full
extent of the number of shares of Common Stock
remaining covered by such Director's Options,
regardless of whether such Director's Options were
previously exercisable, and each such Director's
Option shall expire one (1) year after the date of
death of such optionee or on the stated grant
expiration date, whichever is earlier.
Exercise of a deceased holder's Director's
Options that are still exercisable shall be by the
estate of such holder or by the person or persons to
whom the holder's rights have passed by will or the
laws of descent and distribution.
(d) In the event of the
termination of a Director's Option holder's service
as a Director for any reason other than as described
in Sections 4.7(a)-(c), including without
limitation, expiration of the Director's term in
office (without renomination or reelection) or by
resignation, the then outstanding Director's Options
of such holder shall become exercisable, to the full
extent of the number of shares of Common Stock
remaining covered by such Director's Options,
regardless of whether such Director's Options were
previously exercisable, and each such Director's
Option shall expire three(3) months after the
effective date of such termination.
4.7 Limitation of Rights
Neither the recipient of a Director's Option
under the Plan nor the recipient's successor or
successors in interest shall have any rights as a
shareholder of the Company with respect to any
shares of Common Stock subject to a Director's
Option granted to such person until the date of
issuance of a stock certificate for such shares of
Common Stock.
4.8 Limitation as to Directorship
Neither the Plan, nor the granting of a
Director's Option, nor any other action taken
pursuant to the Plan shall constitute or be evidence
of any agreement or understanding, express or
implied, that an Eligible Director has a right to
continue as a Director for any period of time or at
any particular rate of compensation.
4.9 Limit on Awards to Eligible Directors
Notwithstanding any provision to the contrary, an
Eligible Director shall not be entitled to receive
or participate in any Award under the Plan other
than Director's Options which are granted to such
Eligible Director pursuant to Section 4.2 and meet
all of the requirements of Section 4 applicable
thereto.
4.10 Termination of Director's Options
Notwithstanding any provision to the contrary, no
Director's Option shall be granted pursuant to
Section 4.2 on a date when the number of shares of
Common Stock authorized for issuance pursuant to the
Plan and then available for issuance pursuant to new
Director's Options is less than the aggregate number
of such shares which would be issuable pursuant to
Director's Options otherwise required to be granted
on such date.
4.11 Conflicting Provisions
In the event of any conflict between a provision
of this Section 4 and a provision in any other
paragraph of the Plan with respect to Director's
Options, such provision of this Section 4 shall be
deemed to control. Except in the case of conflict,
however, provisions in other sections are
applicable.
5. STOCK APPRECIATION RIGHTS
5.1 Stock Appreciation Rights
In conjunction with the granting of Stock
Options, the Plan Administrator may, in its
discretion, award SARs to an officer or employee
which entitle such individual to receive payment
from the Company in accordance with this section and
upon such terms and conditions as the Plan
Administrator shall determine from time to time.
5.2 Grant of SAR
A SAR granted under this Section may be made part
of a Stock Option at the time such Stock Option is
granted or at any time thereafter until the option
expires.
5.3 Amount Payable Upon Election
A SAR shall entitle the Participant to elect to
receive, in lieu of exercising the Stock Option to
which it relates, an amount (payable, in the sole
discretion of the Plan Administrator, in cash,
Common Stock, or a combination thereof) equal to 100
percent of the excess of:
(a) the Fair Market Value
per share of the Company's Common Stock on the
date such SAR is exercised, multiplied by the
number of shares with respect to which such SAR
is being exercised, over
(b) the aggregate option
exercise price (under the stock option agreement
to which the SAR relates) for such number of
shares of Common Stock.
5.4 Exercise of SAR
A SAR shall be exercisable only to the extent
that it has a positive value and the Stock Option to
which it relates is exercisable, except that no SAR
shall be exercisable during the first six (6) months
after the date of its grant. Further, in the case
of an officer of the Company subject to the
provisions of Section 16 of the Securities Exchange
Act of 1934, the SAR must be exercised during the
period beginning on the third business day following
the date of release for publication by the Company
of financial data specified under
Rule 16b-3(e)(1)(ii) under the Securities Exchange
Act of 1934 and ending on the twelfth business day
following such date.
5.5 Effect on Related Stock Option
Upon the exercise of a SAR, the related Stock
Option (or the appropriate portion thereof) with
respect to which such SAR is exercised shall be
automatically cancelled and shall not thereafter be
exercisable.
5.6 Effect on Stock Subject to Plan
For purposes of determining the number of shares
available under the Plan, all shares of Common Stock
with respect to which a SAR is exercised shall no
longer be available.
6. RESTRICTED STOCK AWARDS
6.1 Grants
The Plan Administrator may, in its discretion,
grant one or more Restricted Stock Awards to any
eligible employee. Each Restricted Stock Award
Document shall specify the number of shares of
Common Stock to be issued to the Participant, the
date of such issuance, the consideration for such
shares, if any, by the Participant, the restrictions
imposed on such shares, and the conditions of
release or lapse of such restrictions. Stock
certificates evidencing shares of Restricted Stock
subject to restrictions shall be held by the Company
until the restrictions on such shares shall have
lapsed and the shares shall have vested in
accordance with the provisions of the Award.
Promptly after the lapse of restrictions, a
certificate or certificates evidencing the number of
shares of Common Stock as to which the restrictions
have lapsed shall be delivered to the Participant.
The Participant shall deliver to the Corporation
such further assurance and documents as the Plan
Administrator may require.
6.2 Restrictions
(a) Pre-Vesting Restraints. Shares of Common
Stock comprising any Restricted Stock Award may not
be sold, assigned, transferred, pledged or otherwise
disposed of or encumbered, either voluntarily or
involuntarily, until the restrictions have lapsed.
(b) Dividend and Voting Rights. Unless
otherwise provided in the applicable Award Document,
a Participant receiving a Restricted Stock Award
shall be entitled to cash dividend and voting rights
for all shares of Common Stock issued even though
they are not vested, provided that such rights shall
terminate immediately as to any Restricted Stock
that ceases to be eligible for vesting.
(c) Accelerated Vesting. Unless otherwise
provided by the Plan Administrator, the restrictions
on Restricted Stock shall lapse upon the
Participant's termination of employment with the
Corporation by reason of Retirement, Total
Disability or death.
(d) Forfeiture. Unless otherwise specified by
the Plan Administrator, Restricted Stock as to which
the restrictions have not lapsed in accordance with
the provisions of the Award or pursuant to
Section 6.2(c) shall be forfeited upon a
Participant's termination of employment. Upon the
occurrence of any forfeiture of shares of Restricted
Stock, such forfeited shares shall be automatically
transferred to the Company without payment of any
consideration by the Company and without any action
by the Participant.
7. MISCELLANEOUS PROVISIONS
7.1 Adjustments Upon Changes in Capitalization
In the event of changes to the outstanding shares
of Common Stock of the Company through
reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up,
stock dividend, stock consolidation or otherwise, or
in the event of a sale of all or substantially all
of the assets of the Company, an appropriate and
proportionate adjustment shall be made in the number
and kind of shares as to which Awards or Director's
Options may be granted. A corresponding adjustment
changing the number or kind of shares and/or the
purchase price per share of unexercised Stock
Options or portions thereof which shall have been
granted prior to any such change shall likewise be
made. Notwithstanding the foregoing, in the case of
a reorganization, merger or consolidation, or sale
of all or substantially all of the assets of the
Company, in lieu of adjustments as aforesaid, the
Plan Administrator may in its discretion accelerate
the date of vesting of an Award or the date after
which an Award may or may not be exercised or the
stated expiration date thereof. Adjustments or
changes under this Section shall be made by the Plan
Administrator, whose determination as to what
adjustments or changes shall be made, and the extent
thereof, shall be final, binding and conclusive.
7.2 Non-Transferability
No Award or Director's Option shall be
transferable except by will or the laws of descent
and distribution, nor shall any Award or Director's
Option be exercisable during the Participant's
lifetime by any person other than the Participant or
his guardian or legal representative, except
pursuant to a qualified domestic relations order.
Any purported transfer contrary to this provision
will be null and void and without effect.
7.3 Withholding
The Company's obligations under this Plan shall
be subject to applicable federal, state and local
tax withholding requirements. Federal, state and
local withholding tax due at the time of a grant or
upon the exercise of any Award may, in the
discretion of the Plan Administrator, be paid in
shares of Common Stock already owned by the
Participant or through the withholding of shares
otherwise issuable to such Participant, upon such
terms and conditions as the Plan Administrator shall
determine. If the Participant shall fail to pay, or
make arrangements satisfactory to the Plan
Administrator for the payment, to the Company of all
such federal, state and local taxes required to be
withheld by the Company, then the Company shall, to
the extent permitted br law, have the right to
deduct from any payment of any kind otherwise due to
such Participant an amount equal to any federal,
state or local taxes of any kind required to be
withheld by the Company.
7.4 Compliance with Law and Approval of Regulatory
Bodies
No Award or Director's Option shall be
exercisable and no shares will be delivered under
the Plan except in compliance with all applicable
federal and state laws and regulations including,
without limitation, compliance with all federal and
state securities laws and withholding tax
requirements and with the rules of all domestic
stock exchanges on which the Common Stock may be
listed. Any share certificate issued to evidence
shares for which an Award or Director's Option is
exercised may bear legends and statements the Plan
Administrator shall deem advisable to assure
compliance with federal and state laws and
regulations. No Stock Option shall be exercisable
and no shares will be delivered under the Plan,
until the Company has obtained consent or approval
from regulatory bodies, federal or state, having
jurisdiction over such matters as the Plan
Administrator may deem advisable. In the case of
the exercise of a Stock Option by a person or estate
acquiring the right to exercise the Stock Option as
a result of the death of the Participant, the Plan
Administrator may require reasonable evidence as to
the ownership of the Stock Option and may require
consents and releases of taxing authorities that it
may deem advisable.
7.5 No Right to Employment
Neither the adoption of the Plan nor its
operation, nor any document describing or referring
to the Plan, or any part thereof, nor the granting
of any Award hereunder, shall confer upon any
Participant under the Plan any right to continue in
the employ of the Company or any Subsidiary, or
shall in any way affect the right and power of the
Company or any Subsidiary to terminate the
employment of any Participant at any time with or
without assigning a reason therefor, to the same
extent as might have been done if the Plan had not
been adopted.
7.6 Exclusion from Pension Computations
By acceptance of any Award under the Plan, the
recipient shall be deemed to agree that any income
realized upon the receipt or exercise thereof or
upon the disposition of the shares received upon
exercise will not be taken into account as "base
remuneration", "wages", "salary" or "compensation"
in determining the amount of any contribution to or
payment or any other benefit under any pension,
retirement, incentive, profit-sharing or deferred
compensation plan of the Company or any Subsidiary.
7.7 Abandonment of Options
A Participant may at any time abandon a Stock
Option prior to its expiration date. The
abandonment shall be evidenced in writing, in such
form as the Plan Administrator may from time to time
prescribe. A Participant shall have no further
rights with respect to any Stock Option so
abandoned.
7.8 Severability
If any of the terms of provisions of the Plan
conflict with the requirements of Rule 16b-3, then
such terms or provisions shall be deemed inoperative
as to directors and officers to the extent they so
conflict with the requirements of Rule 16b-3.
7.9 Interpretation of the Plan
Headings are given to the Sections of the Plan
solely as a convenience to facilitate reference,
such headings, numbering and paragraphing shall not
in any case be deemed in any way material or
relevant to the construction of the Plan or any
provision hereof. The use of the masculine gender
shall also include within its meaning the feminine.
The use of the singular shall also include within
its meaning the plural and vice versa.
7.10 Use of Proceeds
Funds received by the Company upon the exercise
of Stock Options shall be used for the general
corporate purposes of the Company.
7.11 Construction of Plan
The place of administration of the Plan shall be
in the State of New York, and the validity,
construction, interpretation, administration and
effect of the Plan and of its rules and regulations,
and rights relating to the Plan, shall be determined
solely in accordance with the laws of the State of
New York.
Approved by Board of Directors: May 10, 1994
Approved by Stockholders: May 23, 1994
Amended to increase number of shares of Common Stock available
for awards
Approved by Board of Directors: February 6, 1996
Approved by Stockholders: May 7, 1996
<PAGE>
[HOME PROPERTIES OF NEW YORK, INC. LETTERHEAD]
June 11, 1996 EXHIBIT 5
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
RE: Home Properties of New York, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
I am Vice President, Secretary and General Counsel of Home
Properties of New York, Inc. (the "Company") and have acted on
behalf of the Company in connection with its Registration
Statement on Form S-8 to register under the Securities Act of
1933, as amended, an aggregate of 1,000,000 shares of Common
Stock of the Company (the "Shares") to be issued pursuant to the
Company's 1994 Stock Benefit Plan, as Amended (the "Plan").
I have examined and am familiar with originals or copies,
certified or otherwise identified to my satisfaction, of such
documents, corporate records and other instruments as I have
deemed necessary or appropriate in connection with rendering this
opinion.
Based on the foregoing, I am of the opinion that the stock
options, restricted stock grants and stock appreciation rights
provided for in the Plan described in the above-referenced
Registration Statement have been duly authorized by the Company
for issuance to eligible employees of the Company and its
subsidiaries in accordance with the terms of the Plan and that
the Shares have been duly authorized by the Company for issuance
and will, when issued in accordance with the terms of the Plan
upon the exercise of options or pursuant to restricted stock
grants or stock appreciation rights granted thereunder, be
validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to
the above-mentioned Registration Statement on Form S-8 and any
reference to me contained therein.
Very truly yours,
/s/ Ann M. McCormick
Ann M. McCormick
Vice President, Secretary
and General Counsel
AMM:yjw
<PAGE>
Exhibit 23.2
Consent of Independent Accountants
We consent to the incorporation by reference in the registration
statement of Home Properties of New York, Inc. on Form S-8 of our
report dated February 1, 1996, on our audits of the consolidated
balance sheets of Home Properties of New York, Inc. as of
December 31, 1995 and 1994, and the consolidated and combined
statements of operations, stockholders' equity/owners' deficit
and cash flows of Home Properties of New York, Inc. and the
Original Properties for each of the three years in the period
ended December 31, 1995, which report is included in the Annual
Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
-----------------------------
Rochester, New York
June 10, 1996
