The NYS Department of Labor is being required by a new law to establish an online database by April 22, 2021 to make available all information and data regarding all workplace fatalities in the construction industry.

Originally, this law stupidly applied to employees rather than workers and contractors, which is the standard for workers in the industry. Now, this has been fixed by new law. 

If you are a GC (general contractor) and you don't think that the ambulance chasers have already planned to favorite this website, you have another thing coming. It's time to button-up those safety protocols, meetings, and compliance checks. 

What are you doing to protect yourself from suit?

There has been a long standing dispute in the courts as to whether a family member can be evicted in an eviction proceeding (a/k/a, summary proceeding) or whether a protracted case was required in Supreme Court (a/k/a, ejectment proceeding). 

A summary proceeding is considered to be a "simple, expeditious and inexpensive means of regaining possession" of your property. Yes, it can take many months and thousands of dollars, but in contrast to an ejectment proceeding, that is fast and cheap. You can expect an ejectment proceeding to take years and to spend tens of thousands of dollars.

As you can see, whether a family member can be evicted in a traditional eviction proceeding is a big issue that can change the cost / benefit analysis of proceeding with the eviction proceeding in the first place. 

The answer to this long standing dispute was just provided by the appellate courts in Aloni v. Oliver when the courts ruled that a family member or romantic partner can be evicted just like everyone else in a traditional summary proceeding. 

The only exception to this general rule is that you cannot evict your spouse in a summary proceeding and must resort to an ejectment proceeding, unless there is an existing court decree to the contrary.

Are you ready to evict your family members who are taking advantage of you? 

Attention Contractors: If you help your client violate the uniform fire prevention and building code and that violation empedes a person's egress from such building during an emergency evacuation (think fire), then, you can be fined up to $7,500 under new law. 

This law applies to contractors, architects, subcontractors, construction superintendents, and agents.

Is this fair? Should a contractor have to tell their client no when the client wants something that violates the building code? Are contractors now code enforcement agents?

The headlines are in - the federal foreclosure / eviction moratoriums are extended to June 30, 2021 from March. This extension applies to 70% of single family home mortgages.

The subtext is that we have a foreclosure / eviction crisis on the horizon. According to the White House "1 in 5 renters is behind on rent and just over 10 million homeowners are behind on mortgage payments." 

If you just use a little deduction, you will quickly realize that almost every block across America is going to see foreclosures and evictions. In the micro, this will result in firesales, which will reduce comparable home prices across the board. In the macro, it will decrease property upkeep and maintenance, which will create a secondary impact on the greater community's desirability and pricing. 

That's the bad. 

The good is that it's going to be a buyer's market soon.

We need to start thinking about strategies to Purchase Property Post-Pandemic. 

What's your strategy? 

Traditionally, boards are protected from suit under what is called the Business Judgment Rule, which means that actions that are undertaken in good faith and in furtherance of the community, no matter how foolish, can not give rise to board liability. The only real exceptions to this rule are for acts of self-dealing or discrimination. 

However, poorly drafted By-Laws can change that standard and expose boards to liability. 

This was just highlighted in the recent Appellate Division case of Matter of Kotler v 979 Corp.

In the case there was a dispute about the assignment of a cooperative's proprietary lease on the lessee's death. The Court found that the by-laws supplanted the Business Judgment Rule with a heightened Reasonableness standard when the document stated "consent shall not be unreasonably withheld to any assignment or transfer of this lease."

Then, the board lost the case and was told to pay damages and attorneys' fees. 

Attention boards, managing agents (property managers), and board counsel - don't just copy another board's by-laws - think for yourself.

Here is the scenario - You are trying to sell a property and you order a payoff from your mortgage company, but that payoff quote comes in much higher than you believe that it should. 

You are in a real bind. 

You need to sell, but you don't want to overpay. What should you do?

This is particularly problematic where you are in default on your mortgage and the lender has started tacking on exorbitant penalties and attorneys' fees.

The answer is that you better protest the payoff, in writing, while requesting an itemization and then, you should pay it anyway. 

If you do, you can then file a motion for an accounting and ask the court to compute the appropriate fees, charges, expenses, and other payments due under the mortgage. 

If you don't, your motion to the court for an accounting will probably be denied in light of the voluntary payment doctrine, equitable estoppel, and waiver bar the accounting.

Again, protest and pay is the strategy based upon the appellate court decision in US Bank v. Cordero. 

Are you selling a house in foreclosure? If so, pay attention. 

Typically, when a construction worker gets injured on the job from an elevated fall, it's a slam dunk case against the GC. 

In fact, Labor Law § 240(1) imposes strict or absolute liability on general contractors, owners, and their agents regardless if the injured worker is partially at fault for falls at construction sites. 

The only real defense for the GC is that the injured worker was the sole proximate cause of the accident (called the, "recalcitrant worker" defense). But, how do you prove sole cause when everyone claims different facts? 

We just learned the answer in an appellate division case, Cordova v 653 Eleventh Ave. LLC.

The case was dismissed because "Surveillance footage of plaintiff falling from the ladder demonstrates that" it was solely the injured worker's fault. The ladder didn't move or shake, it was connected to the sidewalk bridge and scaffolding above and tied to the scaffold too. 

Moving forward, GCs should video your construction sites. It can save you a fortune. 

The NYC Council enacted two bills which effectively ended "at will" employment for employees in the New York City fast food industry. Mordy Yankovich, Esq. shares the updates to the law in the February issue of the Law Journal, The Suffolk Lawyer.

Click HERE for the link to the article.