On August, 13, 2021, U.S. District Court Judge Dabney Friedrich held that the CDC eviction moratorium, which was extended by the Biden Administration through October 3, 2021 (“New CDC Moratorium”) should remain in effect.

This means that tenants may still be protected, subject to certain rules, until October 3, 2021.

As background, the CDC’s previous moratorium, which was first enacted in September 2020 and was challenged all the way up the US Supreme Court, expired on July 31, 2021.

Yet, before it expired the Supreme Court upheld its effectiveness until an appeal was decided on its merits, which remains pending. Now, the moratorium, which we discuss more fully here, remains in effect because Judge Friedrich ruled that it remains subject to the prior stay. on the basis that the New CDC Moratorium is subject to the D.C. Circuit Court’s stay.

Stay tuned for changes as Judge Friedrich’s decision is currently under appeal.

Tenants are disregarding their lease obligations and finding strength in the eviction moratoriums. What is a landlord to do? Andrew Lieb, Esq. shares tips in this article published in Behind The Hedges. 

Are schools opening in the fall?

It's looking less likely with each passing day as we are experiencing a national death uptick from COVID and it has invaded Major League Baseball.

Even if schools do open, are you comfortable sending your children?

Maybe you are considering hiring an at-home teacher because you can't possibly continue to work, care for your children and play teacher simultaneously.

Before you do, read our 5-Point Plan to do this legally:


1. Minimum Wage/Overtime/Notice of Pay: Pursuant to the NYS "Domestic Workers Bill of Rights", an at-home teacher must be paid at least minimum wage for all hours worked. The current minimum wage for workers on Long Island is $13 an hour. Domestic workers must be paid at a rate of time and a half for all hours worked over forty (40) in a given week. In addition, employers must provide a Notice of Pay Form to the worker at the commencement of employment which includes the employee's regular hourly rate, overtime rate and regular pay day. Employers of domestic workers can face significant damages if they fail to comply with these wage and hour laws, including but not limited to backpay, double damages, and attorneys' fees.

2. Tracking Hours Worked: Even if you pay a domestic worker for all hours worked in accordance with the law, you can still face liability if you do not accurately and contemporaneously track hours worked. If the employer fails to keep contemporaneous records of hours worked (e.g. sign-in sheets), a court will presume that the employee's account of hours worked is accurate.

3. Workers Compensation Insurance: If a domestic worker works forty (40) or more hours per week or lives on-premises (e.g. a live-in nanny who also teaches the kids), the worker must be covered by workers compensation insurance. While coverage is not required if the domestic worker works less than forty (40) hours per week, obtaining a policy, even if not required, is advised because it protects you from a personal injury lawsuit brought by the teacher.

4. Potential Liability for Covid-19 Exposure: Individuals hiring a domestic worker may be exposed to a potential lawsuit if the domestic worker tests positive for Covid-19. While courts have not yet ruled on the admissibility of liability waivers for Covid-19, having a domestic worker sign a waiver that he/she assumes the specific risks associated with exposure to the virus may mitigate exposure. However, gross negligence cannot be waived. Therefore, employers should implement a safety plan including but not limited to: PPE, health screenings, prohibiting people in the house who are symptomatic/have had recent exposure to Covid-19, to mitigate potential liability.

5. Use of Nanny Cams: While use of nanny cams (i.e. video recording a nanny/at-home teacher without his/her consent) is generally permitted under New York State law, nanny cams may not be installed where a nanny has a reasonable expectation of privacy, (e.g. a bathroom or nanny's bedroom). In addition, recording audio, without the consent of at least one party to the conversation, may constitute a felony pursuant to New York State law.

On July 16, 2020, Governor Cuomo signed Executive Order 202.52 which prohibits bars and restaurants from selling alcoholic beverages, unless it comes with the purchase of food. The Executive Order applies to on-premises consumption, take-out, and delivery and it is in effect until August 15, 2020.

A lot of mockery has been out there about this new EO. There have been arguments such as, “I can get Corona with a beer, but not with a beer and a chip.” Yet, that misses the point. The point is to make it impossible for jammed and standing bar parties. By adding a service of food requirement, the government is avoiding bar scenes that will quickly spread Coronavirus. Perhaps this is not the most effective line in the sand and there are likely better lines to draw, but whenever a law is passed, the line will create haters and fans. Better to know the line and keep your liquor license than to fight it until your bar closes, at least that is our perspective.

Restaurant and bar owners are also advised of the guidance set by the State Liquor Authority in light of the Executive Order 202.52:

- “Purchase of a food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law” shall mean that for each patron in a seated party, an item of food must be purchased at the same time as the purchase of the initial alcoholic beverage(s). However, one or more shareable food item(s) may be purchased, so long as it/they would sufficiently serve the number of people in the party and each item would individually meet the food standard below.

- Food and/or beverages can only be consumed while seated at a table, bar, or counter.

- “A food item which is consistent with the food availability requirement of the license under the Alcoholic Beverage Control Law” shall mean:

• For manufacturers with on premises service privileges: sandwiches, soups or other such foods, whether fresh, processed, pre-cooked or frozen; and/or food items intended to compliment the tasting of alcoholic beverages, which shall mean a diversified selection of food that is ordinarily consumed without the use of tableware and can be conveniently consumed, including but not limited to: cheese, fruits, vegetables, chocolates, breads, mustards and crackers.

• For on premises retailers with a food availability requirement, including restaurants and taverns: sandwiches, soups or other foods, whether fresh, processed, precooked or frozen.

- “Other foods” are foods which are similar in quality and substance to sandwiches and soups; for example, salads, wings, or hotdogs would be of that quality and substance; however, a bag of chips bowl of nuts, or candy alone are not. (Updated July 23, 2020)

The SLA further reminds restaurant and bar owners of the purpose of the Executive Order which is to ensure that customers are enjoying a sit-down dining experience with drinks, rather than a drinking, bar-type experience that often involves or leads to socializing without proper social distancing and use of masks. Further, the SLA warns that any obvious efforts to circumvent the above rules will be deemed violations of the Executive Order. Additionally, in New York City, a “Three Strikes and You’re Closed” policy is put in effect and establishments receiving three violations will be closed for business.

However, regardless of three strikes, an immediate revocation of a liquor license or business closure may occur due to egregious violations. Restaurant and bar owners should be aware of these guidelines to avoid liability and ensure compliance.

Effective June 30, 2020, the Tenant Safe Harbor Act (“Act”) was signed into law by Governor Cuomo. Essentially, the Act prohibits courts from issuing a warrant of eviction or judgment of possession against a residential tenant for non-payment due to financial hardship during the COVID-19 covered period, but it allows landlords to obtain a money judgment for rent in a summary proceeding. Alternatively, landlords can simply commence a plenary action for the money judgment in district, county, or supreme court as jurisdictionally appropriate.

The Act defines “COVID-19 covered period” as March 7, 2020 until the date executive orders which closed or restricted public or private businesses, or required the postponement or cancellation of non-essential gatherings for any size for any reason expire. This means that until all businesses are allowed to be 100% open, a tenant may claim financial hardship and not be evicted.

As a result, A landlord who starts a summary proceeding to evict a tenant or lawful occupant for non-payment of rent will not be able to get a warrant of eviction or judgment of possession if the tenant or lawful occupant claims that he suffered financial hardship during the COVID-19 covered period. Tenants and lawful occupants are also allowed to raise it as a defense in the summary proceeding.

To determine whether a tenant suffered a financial hardship, courts shall consider the following, among other relevant factors:

1. Tenant’s or lawful occupant’s income prior to the COVID-19 period;
2. Tenant’s or lawful occupant’s income during the COVID-19 period;
3. Tenant's or lawful occupant's liquid assets; and
4. Tenant’s or lawful occupant's eligibility for and receipt of cash assistance, supplemental nutrition assistance program, supplemental security income, the New York State disability program, the home energy assistance program, or unemployment insurance or benefits under state or federal law.

The Act, however, does not prohibit landlords from obtaining a money judgment for rent if successful in a summary proceeding. Landlords are advised to contact counsel to discuss the best strategy to manage their tenants while complying with the various executive orders and laws in place due to the coronavirus pandemic.

The Equal Employment Opportunity Commission (EEOC) published guidance concerning business practices that are both safe and compliant with anti-discrimination laws during the COVID-19 pandemic. The guidance discusses various relevant practices but most notable of which is the EEOC’s guidance on medical examinations prior to employees re-entering the workplace. According to the EEOC, antibody tests may not be required by employers for employees to re-enter the workplace, but employers may require employees to undergo a COVID-19 test to re-enter.

The EEOC advised that antibody tests should not be used to make decisions about returning to the workplace and currently does not meet the Americans with Disabilities Act (ADA)’s “job related and consistent with business necessity” standard for medical examinations for current employees. This standard applies to any mandatory medical test for employees. Thus, an antibody test may not be required for an employee to enter the workplace and employers should be aware that requiring antibody tests could be the basis of a discrimination claim.

On the other hand, tests which determine if someone has an active case of COVID-19 are permissible under the ADA and employers may use it to make decisions on whether an employee should return to the workplace. The distinction is that an employee who is currently infected with COVID-19 poses “a direct threat to the health of others.” However, employers should still be aware of the possibility of an employee testing false-positive or false-negative and employers should ensure that tests are accurate and reliable.

Nonetheless, employers are encouraged to practice social distancing, regular handwashing, and the wearing of PPE’s as there is no certainty that employees will not be infected with COVID-19 after the test is administered. In addition, employers should contact counsel to have a tailored COVID-19 safety plan compliant with federal anti-discrimination laws and regulations while ensuring a safe workplace for employees.

• A form plaintiff’s attorney affirmation, indicating that counsel has reviewed the various state and federal restrictions and qualifications on foreclosure proceedings and believes in good faith that the proceeding is consistent with those restrictions and qualifications; and
• A form notice to defendants-tenants (in English and Spanish), informing them that they may be eligible for an extension of time to respond to the complaint in light of legal directives related to the COVID-10 pandemic, and directing them to a website link for further information.

• Foreclosure matters wherein all parties are represented by counsel may be calendared for both initial and follow-up virtual settlement conferences;
• Lenders may move for a judgment of foreclosure and sale on the ground that a property is vacant and abandoned; and
• Lenders may also move to discontinue a pending case.

Beginning June 20, 2020, courts will accept new eviction matters – statewide eviction moratorium expires (Executive Order 202.28).

To facilitate this, the Chief Administrative Judge released a memorandum setting the procedures for residential and commercial eviction proceedings in New York State.

Now, commencement documents in eviction proceedings must be filed with the court by NYSCEF or mail. Further, until further order, petitions in commercial and residential eviction proceedings based on nonpayment of rent or on other grounds must include the following:

1. Form petitioner’s attorney affirmation or petitioner’s affidavit (for self-represented petitioners), indicating that counsel / petitioner has reviewed the various state and federal restrictions and qualifications on eviction proceeding and believes in good faith that the proceeding is consistent with those restrictions and qualifications; and
2. Form notice to respondent-tenants (in both English and Spanish), informing them they may be eligible for an extension of time to respond to the petition in light of legal directives related to the COVID-10 pandemic, and directing them to a telephone number and/or website link for further information.

As a reminder, eviction proceedings based on non-payment of rent by a tenant who is eligible for unemployment insurance or benefits under federal or state law or is otherwise facing financial hardship due to COVID-19 are prohibited until August 20, 2020 per Executive Order 202.28. In addition to the above forms, NYC currently has directives requiring good faith affidavits to be filed with the petition. You can read more about it HERE. Stay tuned should the Civil Court of New York City update their directives in light of the Chief Administrative Judge’s memorandum.

The memorandum further stays the hearing of the eviction matter until the Executive Orders suspending statutory time periods for legal matters expire. However, eviction matters commenced on or before March 16, 2020 in which all parties are represented by counsel shall be eligible for calendaring for virtual settlement conferences.

Also, the New York State Courts Electronic Filing System (NYSCEF) will accept New York City Housing Court matters later this summer.

Beginning June 20, 2020, any petitioner seeking to commence a summary proceeding for nonpayment of rent shall file with the petition an affidavit by a person with knowledge of the facts, stating the following:

• Petitioner has made a good faith effort to ascertain whether the respondent is a person eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic;
• Respondent is not such a person; and
• Facts upon which the petitioner / individual signing the affidavit based such conclusion. See DRP 209.

Similarly, any individual seeking to obtain a default judgment for the respondent’s failure to answer in a summary proceeding based on the non-payment of rent must attach to the application, an affidavit with the above information. See DRP 210.

Lastly, the affidavit is also required to enforce a warrant of eviction that was awarded prior to March 20, 2020 based upon the nonpayment of rent. To enforce the warrant, the petitioner must seek leave of court to enforce the warrant and such motion must include the affidavit. See DRP 211.

The above directives were published in light of Executive Order 202.28 which extended the eviction moratorium to August 20, 2020 for eviction proceedings or enforcement based on nonpayment of rent or foreclosure of a mortgage, owned or rented, “by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic.”

The above directives apply to both residential and commercial properties and proceedings in all five boroughs and are all effective June 20, 2020, however, it is advised that the above affidavit also be prepared for eviction proceedings in Nassau and Suffolk County as Executive Order 202.28 applies statewide.

While Executive Order 202.28 and the Courts are well-intentioned, gathering the information required to complete the affidavit may be problematic for landlords. Often, a tenant who has not paid rent, has not reached out to the landlord to renegotiate their rent during the coronavirus pandemic, and is being evicted is unlikely to cooperate with a landlord’s attempt to get information. Nonetheless, landlords are advised to consult counsel in order to ensure that they follow the correct court procedures as one small mistake in filing may cause further delay, or even dismissal, of their court proceedings.

Senate Bill S8192B / Assembly Bill 10290B passed both the Assembly and Senate and is currently on the Governor’s desk for signature. The legislation will prohibit the eviction of residential tenants who suffered financial hardship during the COVID-19 pandemic.

Specifically, the bill covers the period from March 7, 2020 until various Executive Orders which placed restrictions requiring closure of and restriction on businesses and establishments, or postponement or cancellation of non-essential gatherings continue to apply in the county of the tenant’s residence (“COVID-19 Covered Period”). Further, the bill allows residential tenants to raise a defense of financial hardship during such period in a summary proceeding and courts shall consider the tenant’s income prior to and during the COVID-19 Covered Period, liquid assets, and eligibility for cash assistance, disability, unemployment insurance, and state or federal programs.

This legislation expands Executive Order 202.8 which imposed a statewide eviction moratorium until June 18, 2020 and Executive Order 202.28 which extended the moratorium to August 20, 2020 for tenants facing financial hardship due to the COVID-19 pandemic. Unlike the previous Executive Orders, the legislation does not prohibit the initiation of summary eviction proceedings, it merely prohibits the courts from issuing judgments of possession and warrants of eviction. It does not prevent landlords from obtaining money judgments for unpaid rent.

While this legislation is a softer blow to landlords than a complete prohibition on the initiation of eviction proceedings, the main concern for landlords is that the COVID-19 Covered Period can last well up to 2021. Further, as landlords can only get a money judgment and not an eviction, the judgment does not stop the bleeding and would eventually require landlords to go back to court to obtain another judgment for rent prior to the tenants vacating the property.

A lawsuit has already been filed by landlords to nullify provisions of Executive Order 202.28 which prohibit landlords from pursuing eviction proceedings until August 19, 2020 and which allow tenants to use the security deposit toward rent payments. The landlords argue the Executive Order allows tenants to withhold rent without immediate repercussion and precludes landlords from utilizing security deposits as compensation for damages caused to the unit by the tenant. It is expected that if the bill is enacted into law, litigation will surely follow.

In the meantime, landlords should consult counsel for strategies on how to mitigate their risk due to tenants’ nonpayment.

On May 28, 2020, Governor Cuomo signed Executive Order 202.34, which authorized business operators and building owners to exercise their own discretion in denying entry to individuals who fail to comply with Executive Order 202.17 requiring face-coverings when in a public place.

Specifically, EO 202.34 allows business operators and building owners to use their discretion in denying entry and requiring or compelling removal of persons not wearing a face-covering, unless they are under the age of two or are not able to medically tolerate it as per EO 202.17. More importantly, EO 202.34 exempts such business operators and building owners from a claim of violation of the covenant of quiet enjoyment or frustration of purpose. However, the directive must still adhere to the Americans with Disabilities Act or any provision of either New York State or New York City Human Rights Law, or any other provision of law.

While businesses and building owners can now restrict entry, they should contact counsel to create a policy that ensures compliance with the anti-discrimination laws and mitigate exposure to discrimination claims.

2. The default or other event which caused the natural person to become personally liable for such obligation occurred between March 7, 2020 and September 30, 2020, inclusive.

1. Whether there is a contractual relationship;
2. Whether a change in law impairs that contractual relationship; and
3. Whether the impairment is substantial. U.S.C.A. Const. Art. 1, § 10, cl. 1; American Economy Ins. Co. v. State, 30 N.Y.3d 136 (2017).

The Coronavirus Aid, Relief, Economic and Security (CARES) Act allows borrowers to request a forbearance on their mortgage. (You can read more about the CARES Act and mortgage forbearance requests in our article HERE.) As bankruptcy filings are expected to rise due to the COVID-19 pandemic, the U.S. Bankruptcy Court system implemented a few system changes to their Case Management/Electronic Case Filing (CM/ECF) Database in relation to borrowers who have requested a forbearance. These changes are effective May 11, 2020.

Specifically, a new bankruptcy event, “Notice of Mortgage Forbearance” was created to docket such event on the CM/ECF database. In addition to clicking such event, a question was also added to ask, “is a Notice of Mortgage Forbearance being filed with this filing?” in relation to established events on Notice of Mortgage Change. This change has been made to prevent filers from choosing the “Notice of Mortgage Change” event when only a forbearance has been obtained.

As the Court works towards streamlining and implementing a more efficient process, readers are advised to contact their counsel to ensure that the Court’s bankruptcy process and its recent changes be followed to a T to prevent any delays or other issues with filings.

Business owners looking to their commercial policies for business interruption and loss of income coverage due to COVID-19 have likely run into a giant roadblock - an exclusion of loss due to virus or bacteria. Many insurers added these special endorsements to commercial policies after the SARS outbreak in the early 2000s, and yours probably looks something like this:

As expected, Chief Administrative Judge Lawrence K. Marks has issued a new administrative order detailing the first stage of court operations for nonessential matters. A full copy of the order can be read HERE.

By Executive Order 202.14, Governor Cuomo has permitted the use of this form for "any parent, a legal guardian, a legal custodian, or primary caretaker who works or volunteers in a health care facility or who reasonably believes that they may otherwise be exposed to COVID-19... [to] designate a standby guardian" for their children:

By Executive Order 202.14, Governor Cuomo enacted new penalties for violating Coronavirus Executive Orders, in addition to what we discussed in our blogs - Penalties for Keeping Your Real Estate Opened in Coronavirus Expanded and What Happens When You Ignore the Essential Services Executive Order. 

The new penalty order states as follows:

The enforcement of any violation of the foregoing directives on and after April 7, 2020, in addition to any other enforcement mechanism stated in any prior executive orders, shall be a violation punishable as a violation of public health law section 12-b(2) and the Commissioner of Health is directed and authorized to issue emergency regulations. The fine for such violation by an individual who is participating in any gathering which violates the terms of the orders or is failing to abide by social distancing restrictions in effect in any place which is not their home shall not exceed $1,000.

You've been warned. 

New York State courts are reopening.

On April 7, 2020 Judge Marks issued a memorandum to all trial court justices and judges outlining his plan for reopening the trial courts to non-essential matters beginning on Monday April 13, 2020. A full copy of the memorandum can be found HERE.

Judge Marks' April 7, 2020 memorandum states:

Going forward, the existing prohibition on the filing of new non-essential matters will continue. However, although our planning is ongoing, starting next Monday, April 13, we will take certain preliminary steps to open up access - remote access - to the courts for non-essential pending cases. This means that judges should review their case inventories to identify cases in which court conferences can be helpful in advancing the progress of the case, including achieving a resolution of the case. Judges can also schedule conferences at the request of the attorneys, and can be available during normal court hours to address discovery disputes and other ad hoc concerns. The conferences will need to be conducted remotely, by Skype or by telephone. Judges' personal staff will be able to assist judges remotely, as needed.

New York State courts have been closed to non-essential matters since March 22, 2020 when Chief Administrative Judge Lawrence K. Marks issued Administrative Order 78/20, which we blogged about HERE.


What will change on Monday, April 13?
Immediately, it appears that the courts are finding success in their remote operations for essential matters are looking to expand those capabilities to non-essential matters which make up the bulk of the caseload in the trial courts. Not only does the memorandum permit judges to conduct remote conferences on cases that are already pending before them, it encourages them to do so. Judges can schedule conferences and parties can request them as well.

The memorandum advises judges to examine their calendars, prioritize cases that will benefit from conferences, decide pending motions to clear backlogs, and to reduce their dockets while there are no new filings.

The big takeaway is that judges' chambers will be staffed and operational - conducting conferences and resolving motions to help clear their dockets. Your pending lawsuits are no longer frozen and progress will be made.


What don't we know?
There are some key limitations in this memorandum that cannot be overlooked:

Going forward, the existing prohibition on the filing of new non-essential matters will continue.

The Coronavirus Aid, Relief, & Economic Security Act (CARES Act), signed into law on 3/27/2020, includes expeditious relief for America's small businesses through loans funded at $349 billion.

In response to many workers losing their jobs as a result of COVID-19, the federal government is providing unemployment insurance assistance in addition to what is currently offered by the States. Some members of Congress aptly referred to the new law as “unemployment on steroids.” The law provides the following additional unemployment insurance benefits:

• Extends eligibility to independent contractors, individuals who are self-employed, or cannot work (individuals who can telework are not covered) for a reason directly related to COVID-19. In order to apply for Pandemic Unemployment Assistance ("PUA"), you must first apply and be determined ineligible to receive New York State unemployment insurance benefits.
• Provides an additional $600 a week to all individuals receiving State unemployment insurance benefits. In New York State, if you are receiving the minimum benefits, the maximum benefits ($504 per week) or somewhere in between, you will receive an additional $600 per week. The federal benefits are retroactive to January 27, 2020 and expires on July 31, 2020. It is unclear from the information currently available whether you are entitled to the additional $600 if you are receiving partial unemployment benefits from New York State (hours/salary are reduced by employer).
• Provides an additional 13 weeks of benefits (NYS currently offers 26 weeks of unemployment benefits).