Did you know that Title VII employment discrimination cases can happen even if the perpetrator is merely the 6-year-old grandson of the owner?

That's the lesson from Chapman v. Oakland Living Center, which is a case against an assisted living facility where the owner’s 6-year-old grandson repeatedly used the n-word against a black employee.

The problem for the employer was - why didn't anyone stop him? The boy’s grandfather either knew or should have known about the conduct and failed to sufficiently respond. Yes, there was a spanking and an unsuccessful attempted to elicit an apology, but that wasn't enough.

On December 21, 2021, Gov. Hochul signed Bill A04651 into law, which requires third-party delivery services to have a valid agreement with merchants before advertising, promoting, or selling any of the merchant's products on their platforms. 

So going forward, third-party delivery services such as Uber Eats, DoorDash, and GrubHub must have valid agreements with local restaurants before promoting or selling any of the restaurants' food/products. There is no question, especially during the ongoing COVID-19 pandemic, local restaurants have utilized third-party delivery service platforms to further promote their businesses, to generate new customers, and to increase overall exposure to local communities. At the same time, the use of third-party food delivery services has exploded and these third-party food delivery services have gotten away with charging local restaurants excessive fees and commissions on the delivery of a restaurant's food/products, which have diminished a restaurant's overall profit. 

This new legislation also forbids any indemnity clauses in these agreements. It is common for many third-party food delivery services to attempt to limit their own liability for any issues related to the food itself or for any accidents that occur during the delivery process. This is why third-party service agreements often contain an indemnity clause, which is a "risk-shifting" provision, in which a restaurant agrees to defend, reimburse, and hold harmless a third-party food delivery service for any and all claims arising out of the third-party food delivery services' scope of work.  

This new legislation ensures that restaurants in New York State will know precisely what fees/commissions a third-party food delivery service will charge on deliveries and also protects restaurants against claims arising from the delivery of their food/products. 

Violations of this new legislation can result in a civil penalty of up to $1,000 per violation. Additionally, a restaurant has the right to file a lawsuit for damages, which includes the civil penalty of $1,000 per violation, injunctive relief, and may even be awarded reasonable court costs and attorney's fees at the court's discretion. 

Will we see fewer restaurants advertised on third-party delivery services apps going forward in light of this new legislation? 

Will we see a snowball effect of increased lawsuits against third-party delivery services? 

Time will tell...

As you may recall, a proposed bill (S1579A) was submitted to Gov. Hochul earlier this month seeking to amend the RPAPL and require lenders, assignees, or mortgage loan servicers to maintain and upkeep vacant residential property at the beginning of a foreclosure action, rather than towards the end of it. 

On December 21, 2021, Gov. Hochul signed the bill into law and it became effective immediately. 

Lenders are likely not thrilled about this new legislation considering they now face the burdensome task of maintaining and upkeeping vacated residential homes throughout the entire foreclosure process, which as we all know, could last months or even years. 

Lenders could also face the risk of being accused of trespass for gaining access to what is a supposed to be a vacant residential home that is being foreclosed upon. It is certainly not uncommon for homeowners to continue residing at a foreclosed home especially at the commencement of a foreclosure action.  

What kind of ripple effect will this new legislation have on residential foreclosure actions going forward?

Stay tuned over the coming months to find out....

A bill (S1579A) awaiting Gov. Hochul's signature will amend section 1307 of New York Real Property Actions and Proceedings Law ("RPAPL") & require plaintiffs, lenders, assignees, or mortgage loan servicers in a residential mortgage foreclosure action to maintain vacated foreclosed property at the commencement of a foreclosure action. 

Currently, section 1307 of the RPAPL imposes a similar duty on plaintiffs to maintain vacated foreclosed property after obtaining a judgment of foreclosure and sale through the time ownership of the vacated foreclosed property has been transferred to another party. 

It is not uncommon for residents who fall behind on their mortgage to leave or abandon their homes. As a result, lenders will commence a foreclosure action, but may delay in taking control of the vacated or abandoned property, resulting in unmaintained and deteriorating property. 

As we all know, the foreclosure process in New York State can be quite lengthy and, in many instances, it can take years for a plaintiff or lender to obtain a judgment of foreclosure and sale. 

Requiring plaintiffs or lenders to maintain abandoned or vacated foreclosed property at the start of a foreclosure proceeding ensures that the foreclosed property will not deteriorate due to lack of maintenance and upkeep and will ensure that the future owner of the foreclosed property will have a home that is in adequate, or even pristine condition, at the time of closing. 

On the other hand, plaintiffs and lenders will likely argue that this amendment places an undue burden on them since they now have to maintain a vacated property at the start of a foreclosure action, rather than towards the tail end of it. 

This could cause lenders to either: 

1. Move quickly in a foreclosure action rather than take their time, or 
2. Delay or limit foreclosure actions altogether in order to avoid the burden of maintaining a vacant or abandoned residential home at the start of a foreclosure proceeding. 

Regardless, aren't there going to be disputes as to whether a property was abandoned and whether the lender was trespassing? Would you want a lender going into your home, even if they were maintaining it, as obligated? 

Lenders would be wise to seek court orders confirming that property is abandoned and they can enter prior to acting under this bill, if it becomes law. Otherwise, they should expect to be counterclaimed for trespassing as they don't have any legal right to the property until the foreclosure proceeding is concluded. 

Stay tuned to see if Gov. Hochul signs this bill into legislation...

As you may recall, on May 5, 2021, the NY HERO Act was signed into law in order to protect employees against exposure and disease during a future airborne infectious disease outbreak. The HERO Act requires employers to take certain measures to protect their employees in the event of future airborne infectious disease outbreaks, which includes requiring employers to have an exposure prevention plan in place in the event of a future outbreak.

As previously reported on this Blog, regulation 12 NYCRR 840.1 entitled "Airborne Infections Disease Exposure Prevention Standard" was proposed over the summer to assist employers in adopting an exposure prevention plan. 

Although 12 NYCRR 840.1 has not yet been approved, the New York State Dept. of Labor has enacted an emergency regulation so that 12 NYCRR 840.1 can be immediately adopted. 

Regardless of whether or not 12 NYCRR 840.1 is ultimately approved, employers should still have an exposure prevention plan in place. However, to err on the side of caution and to avoid a whirlwind of possible future lawsuits, employers should comply with the requirements set forth 2 NYCRR 840.1, especially in light of the Dept. of Labor's recent actions in proposing an emergency regulation to adopt 12 NYCRR 840.1.

Clearly, the Dept. of Labor is gravely concerned about the possibility of future airborne infectious disease outbreaks and their patience is running thin.

If you agree or disagree with the Dept. of Labor's emergency regulation, you can make your voice heard by emailing Michael Paglialonga, Dept. of Labor, at regulations@labor.ny.gov, by December 31, 2021.