Thursday, July 09, 2020

Attorney Affirmation/Petitioner’s Affidavit No Longer Required for Evictions and Foreclosures

Effective immediately, landlords and lenders no longer need to submit an attorney affirmation or petitioner’s affidavit with the petition or complaint in an eviction or foreclosure proceeding pursuant to Administrative Judge Marks’ July 7, 2020 memorandum.

This directive amends the procedure for eviction and foreclosure proceedings as set forth on Judge Marks’ June 18 and June 23, 2020 memoranda and as explained in our blogs HERE and HERE. All other requirements and rules stated therein remain in effect. This includes the requirement to serve the Notice to Respondent Tenant or the Notice to Respondent with the commencement documents, as well as rules concerning the calendaring of hearing and motion practice as stated therein.

Alcohol Take-Out and Delivery Allowed until August 5, 2020

Governor Cuomo signed Executive Order 202.48 which extended existing executive orders, including Executive Order 202.3. Effectively, Executive Order 202.48 allows off-premises consumption of alcohol, including take-out or delivery, until August 5, 2020.

Restaurant and bar owners should still contact counsel to ensure compliance with the Executive Orders and with the limitations set by the State Liquor Authority as violations can result in penalties of up to $10,000 for retail and $100,000 for manufacturers, and/or suspension, cancellation, or revocation of their liquor license.

NYC Reporting Requirements for Airbnb Rentals Amended

On July 7, 2020, Mayor DeBlasio signed into Law Int. No. 1976 which modified the requirement for booking services, like Airbnb, to report short-term housing rental transactions. Essentially, beginning on January 3, 2021, the new law exempts booking services from reporting listings for rooms only, and for up to two (2) guests. They are also exempted from reporting if their property is rented for less than four (4) days in one quarterly reporting period.

Specifically, Section 26-2101 of the Administrative Code of the City of New York is amended to add a new definition for “qualifying listing”:

Qualifying Listing. The term “qualifying listing” means a listing or advertisement that offers a short-term rental via a booking service, and:
1. such listing or advertisement offers or appears to offer the short-term rental of an entire dwelling unit or housing accommodation, or
2. such listing or advertisement offers or appears to offer a short-term rental for three or more individuals at the same time.

Further, Section 26-2102 is amended to exempt booking services from the quarterly reporting of information for transactions associate with a qualifying listing when all such transactions within a reporting period result in the rental of a dwelling unit or housing accommodation for an aggregate of four (4) days or less. The reports must include the address of the rental listing, name address, and contact information from the host, total rent received, among others, and must be submitted to the Office of Special Enforcement.

Failure to comply with the reporting requirements under the Administrative Code of the City of New York may result in penalties not more than the greater of $1,500 or the total fees collected during the preceding year by the booking service for transactions related to the qualifying listing.

Tuesday, July 07, 2020

Eviction and Foreclosure Stay Continued for Commercial Properties Not Residential

On July 6, 2020, Governor Cuomo signed Executive Order 202.48 which affects the validity of many existing executive orders but most notable of which, is that it extends the stay on evictions and foreclosures proceedings to August 5, 2020 for commercial properties, but not for residential properties.

Essentially, Executive Order 202.48 extends the validity of Executive Order 202 up to 202.14, as continued and contained in Executive Order 202.27, 202.28, and 202.38 for another thirty (30) days through August 5, 2020 with some exceptions.

Real estate professionals should be aware that it does not extend the eviction and foreclosure moratorium in place as ordered in Executive Order 202.28 for all residential tenants and mortgagors. However, for commercial properties, an eviction and foreclosure stay is still in place until August 5, 2020.

As such, landlords and lenders should take note of the following:
  • Residential evictions may now be commenced but courts are prohibited from awarding warrants of eviction and judgments of possession for tenants experiencing financial hardship for non-payment of rent that accrues or becomes due during the COVID-19 period pursuant to the Tenant Safe Harbor Act. Money judgments may be awarded. For more information, read our blog HERE;
  • Residential foreclosure proceedings based on nonpayment due to COVID-19 are prohibited until August 20, 2020 pursuant to Executive Order 202.28;
  • Commercial foreclosure proceedings based on nonpayment due to COVID-19 are prohibited until August 5, 2020 pursuant to Executive Order 202.48;
  • Commercial evictions based on nonpayment are prohibited until August 5, 2020 pursuant to Executive Order 202.48; and
  • Commercial holdover proceedings may be commenced beginning June 21, 2020 pursuant to Executive Order 202.8.

Landlords and lenders are advised to contact counsel to ensure that all laws, executive orders, and court directives in place due to the coronavirus pandemic are followed. As noted in our recent blog HERE, eviction and foreclosure proceedings now require that the petitioner/plaintiff file additional forms with the commencement documents pursuant to recent directives from Administrative Judge Lawrence K. Marks dated June 18, 2020 and June 23, 2020.

Statute of Limitations Tolled until August 5, 2020 by Executive Order

Governor Cuomo signed Executive Order 202.48 which extends most Executive Orders due to the coronavirus pandemic. Among others, Executive Order 202.48 specifically extends the tolling of statute of limitations until August 5, 2020 as provided by Executive Order 202.28. As we’ve previously noted in our blog, the Executive Order does not toll all deadlines in pending and ongoing actions. A copy of Executive Order 202.48 and 202.28 can be found HERE and HERE.

Stay tuned to our blog for changes to the current commercial eviction landscape pursuant to Executive Order 202.48.