Friday, September 25, 2020

NYS Senate Committee - Housing Discrimination Hearing

 Watch the hearing live now here 

What do you think? 

The key question was whether there should be legislation to cap the number of salespersons per supervising broker. Wowwwwwww

Tuesday, September 22, 2020

Is Your Pot Smoking History Holding Your Job Prospects Back?

If you were ever convicted of unlawful possession of marijuana, you can now easily get your record expunged and then, records about your arrest, prosecution, and criminal history will be destroyed.

Persons eligible to apply for the destruction of expunged marijuana (a/k/a, marihuana) convictions records are: 
  • Persons convicted of Penal Law 221.10: “A person is guilty of unlawful possession of marihuana in the first degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than one ounce.”
  • Persons convicted of Penal Law Section 221.05: “[a] person is guilty of unlawful possession of marihuana in the second degree when he knowingly and unlawfully possesses marihuana.”

Persons adjudicated as Youthful Offenders are not eligible for expungement and destruction because such adjudication is not considered a conviction.

The following records will be destroyed:
  • Arrest records;
  • Prosecution records;
  • Criminal history records;
  • Any dismissal of your case; and
  • Any expungement of your conviction.

It is important to note that only convictions of Penal Law 221.10 and 221.05 may be expunged and the destruction of records does not include any other conviction for any other felony or misdemeanor concerning the drug.

If you are interested in getting your marijuana conviction expunged and records destroyed, you should complete an Application to Destroy Expunged Marihuana Conviction Record and file it with the court where you were convicted. There is no application filing fee and you may file multiple applications if you were convicted in multiple courts.

Monday, September 21, 2020

Commercial Eviction and Foreclosure Moratoriums Extended through October 20, 2020

By Executive Order 202.64, Governor Cuomo extended the moratoriums for the initiation of a proceeding or enforcement of an eviction of any commercial tenant for nonpayment of rent or a foreclosure of any commercial mortgage for nonpayment of such mortgage to October 20, 2020. This means that no eviction or foreclosure proceeding may be commenced against commercial tenants for nonpayment of rent or mortgage until such date.

There are no moratoriums in place for residential properties by Executive Order. Irrespective of Governor Cuomo’s Executive Orders, court directives are still in place whereby landlords and lenders are permitted to initiate residential and commercial evictions and foreclosures not based on nonpayment but such proceedings remain suspended until further notice. You can read more about these court directives HERE and HERE. Further, residential evictions remain governed by the Tenant Safe Harbor Act as well, which prohibits courts from issuing a warrant of eviction or judgment of possession against a residential tenant experiencing COVID-19-related financial hardship, among others.

Thursday, September 03, 2020

CDC's Moratorium - Required Declaration for Effectiveness - As Promised on the LiebCast

State of         ______________    )
                                                     ) ss:
County of     ______________    )

______________, being duly sworn, deposes and says the following: 

I certify under penalty of perjury, pursuant to 28 U.S.C. 1746, that the foregoing are true and correct:

 I have used best efforts to obtain all available government assistance for rent or housing;
 I either expect to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), was not required to report any income in 2019 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
 I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses;
 I am using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses;
 If evicted I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because I have no other available housing options.
 I understand that I must still pay rent or make a housing payment, and comply with other obligations that I may have under my tenancy, lease agreement, or similar contract. I further understand that fees, penalties, or interest for not paying rent or making a housing payment on time as required by my tenancy, lease agreement, or similar contract may still be charged or collected.
 I further understand that at the end of this temporary halt on evictions on December 31, 2020, my housing provider may require payment in full for all payments not made prior to and during the temporary halt and failure to pay may make me subject to eviction pursuant to State and local laws.

I understand that any false or misleading statements or omissions may result in criminal and civil actions for fines, penalties, damages, or imprisonment. 
Signature of Declarant                                 

Sworn to before me this 
____ day of ___________, 2020

Notary Public

Wednesday, September 02, 2020

CDC's Residential Eviction Moratorium - Fines up to $500,000 and Jail - You Better Read This

CDC's eviction moratorium has teeth and the details matter. 

CDC issued an Agency Order, under the Public Health Service Act, to temporarily halt residential evictions to prevent the further spread of COVID-19 through December 31, 2020. 

The Order applies to residential tenants (not transient or "seasonal tenant[s]") who have provided an executed and sworn copy of the Declaration form, set forth in Attachment A of the Agency Order, to their landlord. 

Such Declaration swears that:
  1. The individual has used best efforts to obtain all available government assistance for rent or housing;
  2. The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
  3. the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
  4. the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and 
  5. eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.
Landlords and tenants alike better get this right as DOJ can bring actions against violators and "a person violating this Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law." If the violator is an organization, the fines are $200,000 and $500,000, respectively. 

This does NOT mean that landlords DON'T have rights.

It is expressly noted that "[t]his Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract." Nor does the order preclude "the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis..." As we just wrote in Dan's Papers - Sue the Tenant for a Judgment

Finally, it is noted that the Order does not prevent evictions "for reasons other than not paying rent or making a housing payment" nor does it preclude "foreclosure on a home mortgage."

As an aside, the CDC is justifying this Order by pointing to the "over 174,000 deaths due to the disease" and comparing it "to the peak mortality observed during the 1918 H1N1 influenza pandemic," while asserting that "eviction moratoria-like quarantine, isolation, and social distancing-can be an effective public health measure utilized to prevent the spread of communicable disease." Perhaps we should stop downplaying this pandemic - it is real per Trump's Federal Agency. 

Tuesday, September 01, 2020

Legally Speaking: Rentals, Rights, Reality...What's a Landlord to do?

Wednesday, August 26, 2020

Wage & Hour Litigation is Coming from Remote Workers

The US Department of Labor's Wage and Hour Division recently issued "guidance regarding employers’ obligation under the Fair Labor Standards Act (FLSA or Act) to track the number of hours of compensable work performed by employees who are teleworking or otherwise working remotely away from any worksite or premises controlled by their employers" that is a must read by employers / HR professionals. 

We addressed this issue on the Lieb Cast on 8/2/2020's segment 3 at the 9 minute mark well before the guidance was ever issued as this advice was a no brainer for a quality employment attorney like Mordy Yankovich

We advise you now that Fair Labor Standards Act lawsuits are coming. 

Are you prepared? 

To get prepared, you need to immediately establish "a reasonable process for an employee to report uncompensated work time."  

Tuesday, August 25, 2020

Discrimination: Disabled's Right to Reasonable Accommodation to Eliminate Possible Exposure to COVID in the Workplace

A must read for all employers, both public and private, is the US Equal Employment Opportunity Commission's publication "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws."

In plain English, if you have an employee with a pre-existing disability that either "puts her at greater risk during this pandemic" or, if such disability will be "exacerbated by the pandemic," and such employee requests a reasonable accommodation, then, you better either grant that request or engage in the "interactive process" to avoid getting sued.  

Be warned - the lawsuits are coming.

Monday, August 24, 2020

Homeless Housing: Issues, Ethics, & Options (4 Part Podcast)

On Sunday, 8/23/20, between 12pm and 1pm on WRCN 103.9FM, LIEBCAST aired an hour episode on Homeless Housing. 

The conversation was inspired by the Facebook Group - Upper West Siders for Safer Streets. With well over 11k members in under a month - this group was formed in response to rising crime and safety concerns after 3 luxury hotels in the neighborhood were converted into homeless shelters. 

We start the episode with a conversation on ethics and we breakdown how successful businesses succeed with ethical discretion in the context of contractual obligations and the law.

We thereafter bring on a representative from the Facebook Group - Upper West Siders for Safer Streets

Then, we go deep into the following topics:

  • Real estate value losses / underwater real estate
  • How a hotel can become a homeless shelter
  • Unraveling whether homeless people are more likely to be drug users, sex offenders, substance abusers and mentally unstable
  • The De Blasio Administration
  • Safety, Crime and Police Action in NYC
  • Where to relocate homeless people
And finally, we reached out to the NYC Department of Health Services / Homeless Services and share their response.

The show was broken out into 4 podcasts without commercials. Below are the links: 

Friday, August 21, 2020

Commercial Eviction and Foreclosure Nonpayment Proceedings Stayed Until September 20, 2020

On August 20, 2020, Governor Cuomo signed Executive Order 202.57 which, among others, extended Executive 202.48 and 202.28. Per the Executive Order, the following are stayed until September 20, 2020: 

  1. Commencing a commercial eviction proceeding against any commercial tenant for the nonpayment of rent;
  2. Commencing a foreclosure of any commercial mortgage for nonpayment of such mortgage; and
  3. Enforcing of such eviction or foreclosure.

As to #3, the Executive Order is unclear as to what is actually prohibited in terms of enforcing an eviction or foreclosure, but it could mean that executing a warrant of eviction or conducting a foreclosure sale are currently prohibited. Stay tuned should future Executive Orders or Court Administrative Orders provide clarification.

As to holdover eviction proceedings, the Executive Order does not specifically address them, thus residential and commercial holdover eviction proceedings may be commenced but they remain suspended per Administrative Order 160/20.

As a reminder, for proceedings commenced prior to March 17, 2020, the execution of the warrant of eviction for residential properties is stayed until October 1, 2020. For properties outside New York City, you can read more about the current eviction rules HERE.

In New York City, the execution of the warrant of eviction for residential properties is stayed until October 1, 2020 and until September 4, 2020 for commercial properties. For properties in New York City, you can read more about the current eviction rules HERE and HERE.

Thursday, August 20, 2020

NYC Residential Evictions Stayed until October 1, 2020

In addition to the directives set by the Court in Administrative Order 160/20 which we discussed in our blog HERE, New York City evictions are also governed by the following directives found in DRP 213:

  • Only in New York City, residential evictions are prohibited until October 1, 2020 and until September 4, 2020 for commercial evictions. This means eviction proceedings may be commenced but the Marshall cannot evict residential tenants until October 1, 2020 or until September 4, 2020 for commercial tenants.

  • Beginning August 20, 2020, NYC Courts will begin accepting requisitions who have obtained judgments of possession issued before March 17, 2020. Such requisitions must be presented by motion on notice to the respondent and such motion must include the Notice to Respondent-Tenant and be served by mail and email, if possible. Trials for commercial evictions will also be conducted and virtual trials are strongly encouraged whenever possible. See DRP 214.

  • Beginning August 20, 2020, landlords seeking to enforce a warrant of eviction issued before March 17, 2020 must request permission from the court through a motion on notice to respondent-tenant. Such motion must also include the Notice to Respondent-Tenant and be served by mail and email, if possible.

  • In all matters where all parties have appeared, the judge has discretion to address any unexcused absence for noticed virtual or in-person appearances / conferences. The judge may reschedule with a “final” marking, resolve issues against such non-appearing party, impose sanctions, or issue a judgment of contempt.

  • For deadlines to file an answer in residential eviction proceedings, no adverse action shall be taken based on the failure to file an answer in an eviction proceeding or failure to submit responsive papers to a motion submitted through the Electronic Document Delivery System (EDDS). All other rules contained in AO 160/20 and 121/20 remain in effect.

Thursday, August 13, 2020

Evictions Resume, But New Eviction Rules Stay Residential Evictions Until October 1, 2020

On August 12, 2020, Judge Lawrence K. Marks published a memorandum and an Administrative Order on the filing and prosecution of residential and commercial evictions in New York State. Landlords and property managers should take note of the following, effective August 13, 2020:

1.      Evictions commenced prior to March 17, 2020 may continue but it is subject to the following rules:
a.   Proceedings continue to be governed by the suspension of filing deadlines as per Executive Order 202.8 as extended to September 4, 2020 by Executive Order 202.55. This means that the deadline to file an Answer to the Landlord-Tenant Petition or appear, among others, is suspended until September 4, 2020.
b.   Commercial Matters:
  • Commencement and enforcement against tenants facing financial hardship due to the COVID-19 pandemic is stayed until August 19, 2020 pursuant to Executive Order 202.28.
  • Commercial eviction matters may otherwise proceed in the normal course, subject to the tolling of statutory deadlines by Executive Order 202.8, as extended by Executive Order 202.55, as explained above.
c.   Residential Matters:
  • For all eviction matters commenced prior to March 17, 2020, including those with a warrant of eviction that has been issued but not yet executed, courts must hold a status or settlement conference to address a range of subjects related to the case and COVID-19 concerns.
  • After such conference, the court may take whatever steps it deems appropriate, such as deciding pending motions, entertaining new applications, or allowing the matter to move forward in its normal course.
  • No residential eviction may take place prior to October 1, 2020 or such later date or dates set by law.

2.      Evictions commenced on or after March 17, 2020 are suspended, regardless of whether it is commercial, residential, nonpayment, or a holdover. They may be commenced but will remain suspended until further order of the court. Nonetheless, eviction matters in which all parties are represented by counsel shall be eligible for virtual settlement conferences.

3.      Filing and service in eviction proceedings requires represented parties to commence new matters electronically through NYSCEF, if available, and by mail if not. Unrepresented parties may file papers in person. See AO/121/20

4.      Eviction proceedings should be conducted remotely whenever appropriate.

5.      Commencement papers in commercial and residential evictions proceedings must continue to include the form notice indicating that respondent-tenants may be eligible for an extension of time to respond to the complaint. You can find the notice HERE

6.      New York City eviction matters shall be governed by AO/160/20 and DRP 213

7.      Administrative Order AO/127/20 is superseded and is no longer in effect. Thus, the form affidavit / affirmation from the landlord / landlord’s counsel regarding the tenant’s COVID-19 hardship is no longer required, among others.

HIV Patients Have Right to Cosmetic Surgery

The Federal Courts, in the Southern District of New York, awarded $125,000 to each individual who was denied cosmetic surgery due to their HIV-Positive status in interesting discrimination case. 

The case was brought under Title III of the Americans with Disabilities Act of 1990 (ADA) and the New York City Human Rights Law.

The penalty was based upon the HIV-Positive individuals' traumatic experiences, resulting in significant feelings of humiliation, shock, and worthlessness, as well as anxiety, stress, sleeplessness, and feelings of stigma and humiliation.

Again, $125,000 was awarded to each victim of discrimination who experienced emotional distress.

What do you think the award should have been?

  1. Nothing
  2. $20,000
  3. $125,000
  4. $1,000,000

Tuesday, August 11, 2020

New Law Alert - Emotional Support / Service Animal Anti-Discrimination Rights Codified

On August 11, 2020, NYS passed a law that clarifies "that reasonable accommodation to enable a person with a disability to use and enjoy a dwelling includes the use of an animal to alleviate the symptoms or effects of a disability."

This codification exists at Executive Law 296(2-a)(d)(2) and (18)(2) and explicitly states that refusing "to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be  necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling, INCLUDING THE USE OF AN ANIMAL AS A REASONABLE ACCOMMODATION TO ALLEVIATE SYMPTOMS OR EFFECTS OF A DISABILITY, AND including reasonable modification to common use portions of the dwelling."

This new law is effective immediately.

If you'd like to learn more about service animals, therapy animals, emotional support animals, comfort animals and discrimination lawsuits, read my article in the American Bar Association's Section of Litigation - The Intersection of Pet Policies and Anti-Discrimination Laws in Real Estate

Monday, August 10, 2020

Don’t Fire Your Employee for Taking Opioids so Fast – Lawsuit Alert

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance explaining exposure to a discrimination lawsuit for employers who fire their staff for taking opioids.

To avoid being sued, employers must take the following steps upon discovering that an employee is taking opioids:

1. Determine if the opioid use is legal or illegal.
  • The ADA allows employers to terminate employees, or take other measures, based on the illegal use of opioids. However, legal or prescriptive opioid use cannot be a ground for automatic disqualification and employers must consider a way for the employee to do the job “safely and effectively” 
  • Employees who test positive to a drug test must also be given an opportunity to provide information about their legal drug use that may cause a drug result to show opioid use. The employer can ask the employee before the test is done if he/she is taking any such medication or the employer can ask all employees who test positive for an explanation. Such should be established by protocol and implemented consistently. 

2. Provide Reasonable Accommodations.
  • Employees who legally use opioids must be given a reasonable accommodation before getting fired or not considered for a position. This also applies to employees who have a history of opioid, or treatment for opioid addiction, which an employer thinks can interfere with safe and effective job performance.
  • Employees may also request a reasonable accommodation from taking prescription opioids to treat pain or from having other medical conditions related to opioid addiction as long as the condition is a disability under the ADA.
  • It is the employees’ responsibility to request a reasonable accommodation and employers cannot legally fire or refuse to hire or promote an employee for making the request. A request protocol should be established and applied consistently.
  • Employers must provide the reasonable accommodation if it does not involve significant difficulty or expense.

3. If an employee cannot do the job safely and effectively even after being provided with a reasonable accommodation, document objective evidence that the employee poses a significant risk of substantial harm. An employee cannot be removed for remote or speculative risks.

4. It is recommended that employers engage in an interactive process, as required in NYC, prior to making any final determinations. Failing to sue interact can be, in itself, the basis of exposure. To understand further, see our blog, 5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate.

You can access EEOC’s guidance HERE and HERE.

Electronic Notarization Extended until September 4, 2020

Thursday, August 06, 2020

Mortgage Lender Warning - No Consideration Deed

The Appellate Division recently reminded us of the importance of investigating a no consideration deed prior to issuing a mortgage to the titleholder. 

In 2386 Hempstead, Inc. v. 182 St., Inc., the Appellate Division held that the no consideration deed constituted notice of a potential previous fraud in the title spurring a duty to make inquiry concerning the circumstances of the transaction at issue. 

By failing to make such inquiry, the lender lost its status as a bona fide encumbrancer for value and therefore, jeopardized its status as a prior lienholder, who gets paid first in a foreclosure action. 

Statute of Limitations Tolled until September 4, 2020

On August 5, 2020, Governor Cuomo signed Executive Order 202.55 which extends the tolling of statute of limitations to September 4, 2020. The tolling period was previously extended to August 5, 2020 by Executive Order 202.48. As a reminder, the Executive Orders do not toll all deadlines in pending and ongoing actions.

Title Litigation - Resolving a Boundary Line Dispute

The Appellate Division recently reminded us how the courts make a boundary line dispute determination in the case of Old Timers Rod & Gun Club, Inc. v. Wa-A-We Rod and gun Club, Inc. with the following quote:
Where such discrepancies exist in property descriptions, ‘the rules of construction require that resort be had first to natural objects, second to artificial objects, third to adjacent boundaries, fourth to courses and distances and last to quantity’
We are therefore reminded of the importance of locating monuments referenced in a deed rather than simply relying on compass bearings and distances when resolving boundary line disputes. 

Title Insurance - Read Your Policy Before You Sue Your Insurer to Take Action

I want it; I want it; I want it is not a good enough argument said the Appellate Division in Irma Straus Realty Corp. v. Old Republic National Title Insurance Company

Underlying the demand for action was a dispute between neighbors over use of a common stairwell. Plaintiff sued their insurer demanding that the title company pay attorneys' fees and costs to prosecute an ownership action against the neighbor. 

Plaintiff's suit was pursuant to section 5 (b) of its policy, which provides that the title insurer “shall have the right ... to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desirable to establish the Title, as insured, or to prevent or reduce loss or damage to the Insured."

Clearly, as the court points out, Plaintiff didn't understand the difference between the terms "right," which the policy stated, and "obligation," which the policy didn't state.

That is to say, the Plaintiff lost the case. 

Clearly, words matter.