If you are a NYS landlord, you MUST read the decision from the case Elmsford Apartment Associates LLC v. Cuomo if you want to be on the top of your game.

We aren't going to discuss the results, beyond saying the Court ruled that Governor Cuomo can legally suspend evictions and more during a pandemic.

We focus on these other gems given to us by the Court - Every property investor (landlord, property manager, broker, flipper, etc.) should read and accept this reality before getting into the investment game:

Evicting a tenant – especially a residential tenant – in New York is a slow, cumbersome and extremely tenant-favorable process, especially when compared to analogous procedures in other states.

Governor Cuomo did nothing to impede the commencement of holdover proceedings… Nor does EO 202.28 suspend[] the landlords’ right to initiate a common law breach of contract action in the New York State Supreme Court to redress a tenant’s failure to perform its payment obligations under his or her lease.

Tenants will continue to accrue arrearages, which the landlord will be able to collect with interest once the Order has expired.

One who chooses to engage in a publicly regulated business… by so doing surrenders his right to unfettered discretion as to how to conduct same.

The expected costs of foreseeable future regulation are already presumed to be priced into the contracts formed under the prior regulation

New York landlords do not enjoy a constitutional right to realize a profit from their rental properties – let alone all the profits contemplated in each of their individual rental agreements.

If the tenant uses the security deposit to pay a month’s rent, and the tenancy ends before the deposit is fully replenished, the landlord can obtain a judgment for the amount expended in repairs.

A special shout-out to the eviction explanation -

To secure an eviction warrant from the housing courts, a New York landlord must serve the tenant a notice of nonreceipt of payment, and give the tenant one final chance to pay by making a demand of payment within 14 days. If the landlord is still owed payment after two weeks have passed, he may commence what is known as a summary proceeding by filing a petition in the civil court, returnable by the tenant within 10 days. If the tenant does not respond in ten days, the court may (but rarely does) issue an eviction warrant immediately. However, if the tenant does respond, however, a trial is set for eight days hence. The trial may be adjourned up to ten additional days if the parties so require in order to produce their witnesses. If, after trial, a judgment is entered for the landlord and the court issues a warrant for eviction, the Sheriff must give the tenant 14 days’ notice in writing prior to execution. There are the usual provisions for appeal and stays issue routinely so that non-defaulting tenants are not evicted before their cases are fully reviewed. But even if the evidence supports a judgment for the landlord, the housing court is not required to order the tenant’s immediate eviction. A tenant may obtain a stay of the issuance of the warrant for up to one year by showing that ‘it would occasion extreme hardship to the tenant or the tenant’s family if the stay were not granted’. Such stays are far from uncommon.

Still think that being a landlord is for you?

This hasn't diminished our motivation to invest in real estate, but as the Court makes clear - we respect the rules and adjust our prices / reserves to account for more rules in the future.

Some years there are less rules and other years there are more, but we know that a keen understanding of the rules will make us profitable as property investors.

If you want profitability too, you need to increase your compliance budget immediately and respect the rules of the game because, as you can see, fighting the governor's office is a losing battle.

Attorneys Andrew Lieb and Mordy Yankovich share tips for employers who want to fire a pregnant employee due to employment issues. Learn how the exposure can be over 6 figures and what employers need to do to protect themselves from a lawsuit.

As the NYC tech scene keeps getting bigger and bigger, we are seeing more and more employees trying to get poached from one company to another. They are getting thrown oodles of money to leave their jobs. Attorneys Andrew Lieb and Mordy Yankovich share tips on what employees should know when switching jobs when they signed non-compete agreements. Learn what is enforceable and what type of exposure employees and new employers face.

Restaurant tips are often illegally withheld from waitstaff. Attorneys Andrew Lieb and Mordy Yankovich discuss employer's liability and exposure to wage and hour disputes plus best practices for restaurants to avoid being named in a class action with astronomical damages.

On December 6, 2019, S4777, the Nuisance Call Act, became law and telemarketers must now give specific information to customers starting on March 5, 2020, the effective date of the law, or face heavy fines.

Under the Nuisance Call Act, General Business Law section 399-z now requires that a "telemarketer or seller [] inform[s] the customer that he or she may request that his or her telephone number be added to the seller's entity specific do-not-call list" where the telemarketer must immediately end the call if the customer so elects.

This is serious - fines can be up to $11,000 per violation if you fail to give this information.

Real Estate Brokers must advise all of their associated Real Estate Salespersons immediately and train their teams. In fact, a defense to a fine includes that "the person has trained his or her personnel in the requirements of this section."

Get your training today at Lieb Compliance, LLC.

Andrew Lieb, Esq. shares his greatest professional accomplishment in 2019 in the New York Real Estate Journal. Read the full article here. 

On December 26, 2019, the Appellate Division, First Department, reversed the Supreme Court and dismissed the New York State Land Title Association's challenge to Regulation 208.

Now, title insurance underwriters and their agents may not offer free meals and beverages, tickets to entertainment events, gifts, golf outings, parties, office supplies and the like as we had previously discussed in the November 2019 article, No More Title Insurance Bribes: Compliance Protocol needed at Every Title Insurance Agency. 

The only aspects of Regulation 208 which remain annulled after this decision are the ancillary fees at 228.5 and the closer payment restrictions.

To understand the current title landscape, read our blog from January 19, 2019, Title Insurance Regulation 208 is Back - Soliciting Title Business is Seriously Restricted Yet Again.

Now, after the December 26 decision, the only possibilities that can change the new reality of the title insurance industry in New York are:

• An application for leave to appeal to the Court of Appeals is made and granted, then, the matter is heard and reversed;
• New regulations are issued by DFS; or
• New legislation is enacted. 

Lieb Compliance is now offering real estate brokerage companies a private online portal with customized video compliance classes and certifications for their agents. Certifications include Fair Housing & Discrimination, Rentals (Tenant Protection Act of 2019), Agency Disclosure, Sexual Harassment Prevention and more.

To learn more visit www.realestatecompliancetraining.com 

• Notification of Fair Housing laws: All prospective buyers, renters, sellers, and landlords receive the disclosure on fair housing and New York State Human Rights Law as furnished by the Department of State (similar to agency disclosure form, but with broader application). It must also be available at every open house or real estate showing conducted by a real estate professional. This will be known as 19 NYCRR 175.28.
•  Posting of Fair Housing laws: Real estate brokers must also display and maintain at every office a notice highlighting the Human Rights Law’s protections and how complaints may be filed. It must be visible from the sidewalk or another conspicuous place and must also be displayed on all websites created and maintained by real estate brokers, salespersons and teams. The notice must also be posted at every open house conducted by a real estate professional. This will be known as 19 NYCRR 175.29. 
• Video recording and record preservation: All entities approved to provide fair housing and/or discrimination training must record video and audio of every course in its entirety and must keep the recording for 1 year following the date the course was provided. This will be known as 19 NYCRR 177.9.

The proposed regulations will be published on the New York State Register and will be available for a public comment period of 60 days. Lieb Blog will post the proposed regulations once they are available. Stay tuned.

Employment law experts Andrew Lieb, Esq. and Mordy Yankovich, Esq advise employers how to put policies in place and respond to requests by employees to take additional time off for religious reasons.

Employers need to quickly fire an employee to reduce exposure. Employment experts Mordy Yankovich and Andrew Lieb share tips in this short clip.

October 9th, 2019 is the deadline for all employees to complete the sexual harassment prevention training. Newsday recently interviewed Andrew Lieb, Esq. of Lieb Compliance discussing the requirements and solution.

Click here to read the full article. 

Loan Officers (LOs) frequently have issues collecting and entering applicant information on their electronic systems, which results in a denial of the loan. These issues occur when customers don't want to provide the information. At all costs, LOs seek to avoid a loan denial. As a result, LOs often develop strategies to fudge information, as a workaround, so that they can close their loans. These workarounds are often spearheaded by management at structured LO meetings. The LOs and managers know that without fudging the data, their system will hard stop the file and kill their loans. This is a non-starter for one with a broker's mindset.

Lenders - the Consumer Financial Protection Burea (CFPB) recently gave a $1.75 million reminder as to why lenders cannot fudge the data and need a compliance plan, in place, to avoid their LOs and managers from fudging the data. This $1.75 million civil penalty occurred by way of settlement In the Matter of Freedom Mortgage Corporation case.

The Freedom Mortgage Corporation case concerned LOs fudging information required by HMDA and Regulation C where such LOs selected non-Hispanic white when consumers refused to provide their race, ethnicity, and sex.

Interestingly, a compliance plan would have avoided this civil penalty because the applicable regulation permits lenders to report that the applicant did not provide the information and the loan can close. Had there been a compliance plan in place, Freedom Mortgage Corporation would have $1.75 million more today. In fact, CFPB ordered the lender to "develop, implement, and maintain policies, procedures, and internal controls to ensure compliance with data collection, recording, and reporting requirements set forth in HMDA and Regulation C." Additionally, trainings were required by CFPB.

Lenders - you need a compliance company to create policies and train your LOs before you get hit with a case by CFPB.

According to the NYS Division of Human Rights, in legislative testimony provided earlier this month, sexual harassment complaints made to the Division have increased 62% since 2016.

Plus, this gigantic increase in complaints occurred before every employee in the State received training as to their rights when either being a victim of sexual harassment or being retaliated against for attempting to stop harassment.

Remember - every employer must train their employees before October 9, 2019 per Labor Law 201-g.

Failure to train is a misdemeanor and will be the kiss of death when trying to defend the company against a complaint of sex discrimination.

The Criminal Division of the US Department of Justice recently updated its guidance document for the "Evaluation of Corporate Compliance Programs."

Does your company's compliance program satisfy the guidance - get a compliance audit to find out ASAP.

To satisfy the guidance, your company needs to:

• Address risk assessment, including constant updates and revisions; 
• Offer accessible policies and procedures;
• Train and communicate;
• Investigate with a confidential reporting structure; 
• Address / train / evaluate its third-party partners, like agents, consultants, and distributors; and
• Evaluate targets' exposure before merging or acquiring.

Introducing our new HR YOUTUBE channel - answering tough questions faced by employers so you don't have to. Stay tuned for more!

View Episode One: Employment Attorneys Andrew Lieb and Mordy Yankovich share tips for Employers about how to handle an initial sexual harassment complaint stemming from an office holiday party. Learn to 1) obtain a statement; 2) with a witness; 3) using a complaint form; 4) to evaluate whether a formal investigation is necessary; and 5) to always have a sexual harassment policy at your workplace.

Every NYS employer must provide their employees with both an annual sexual harassment prevention training and policy pursuant to Labor Law section 201-g. It is a misdemeanor for Employers to violate the Labor Law and likely will trigger an EPLI insurance provider to disclaim coverage in a prospective sex discrimination lawsuit.

1. The Standard: Remind employees that the sexual harassment standard is subjective and it’s about whether conduct is unwelcomed, not whether the target of the conduct acquiesced to the conduct. Furthermore, employees need to be reminded of the breadth of what can constitute harassment. Beyond the traditional understanding of unwelcomed touching, even “harmless” small talk can be actionable if it’s sexist, sexual, homophobic, gender-stereotypical, and the like.
2. Policy Effectiveness: Employees need to know that regardless of the location where the party is held and irrespective if the party occurs after working hours, the Company’s sexual harassment and anti-discrimination policies remain in full force and effect. Incident to the policy being in effect, employees should receive a copy of the policy and be reminded of the adverse work consequences that can result if an employee is a perpetrator of harassment.
3. See Something / Say Something: Most importantly, employees should be empowered to be the solution to eliminate sexual harassment. This can be accomplished by reminding employees of the simple rule of if you see something, say something, which when implemented can effectively stop unwelcomed conduct before it crosses the line and becomes harassment.
4. Providing the Complaint Form: While avoiding harassment is the first goal, providing victims with resources must be a close number two. To accomplish this, HR should provide all employees with a copy of the complaint form and remind employees of the procedure undertaken when a complaint is received. By providing an avenue for employees to be heard and harassment to be addressed, employers can often avoid a lawsuit and at the least, have a good defense if the employee nonetheless sues.
5. False Complaints: While the act of setting forth the potential remedial measures faced by a harasser is a great dissuader of improper conduct, improper complaints should also be addressed by HR. However, HR must address false complaints with precision because everyone must be empowered to make legitimate complaints and not feel that they will be retaliated against. Remember, retaliation, which would reasonably discourage a worker from making or supporting a sexual harassment claim, is disallowed conduct. As such, HR should remind the team that an improper complaint is not one where harassment has not occurred, but, instead, where the complaint was made as a sword against a co-worker as opposed to a shield to protect against harassment. That being said, false complaints are a real thing and they must be avoided in order to root out harassment and make everyone safe at the workplace. As such, HR should suggest that employees avoid one-on-ones if they are afraid of improper complaints. By having a co-worker around, the employee will have a witness to corroborate their version of what transpired. Also, HR should remind everyone that a false complaint can result in criminal harassment charges under the Penal Law and/or a civil defamation lawsuit between co-employees. So, complaints are only to be made if they are brought in good faith.

Many employers are saying that they will write sexual harassment policies and conduct the mandatory trainings themselves, but they will quickly find that doing it themselves is a big mistake. Without an in-house employment attorney, internal compliance department and/or a comprehensive training program, employers will face the following internal training issues:

• Employers must comply with Labor Law 201-g (NYS) and Local Law 96 (NYC).
• New employees must be trained as soon as possible in NYS. NYC requires training within 90 days. So, employers that want to have an annual training for their team must consider multiple trainings when they hire new staff. 
• Employers that plan to use the sample training videos that NYS released will learn that they simply do not comply with the laws. 

In fact the NYS website clearly states:

the videos alone are NOT considered interactive. If you are using this video to meet the training requirements, you must also: ask questions of employees as part of the program; accommodate questions asked by employees, with answers provided in a timely manner; or require feedback from employees about the training and the materials presented.

Employers that plan to use the sample sexual harassment policy released from New York State are making a big mistake. 

Here are 3 reasons why the NYS sample policy is just not enough:

1. It does not address every other protected class under which an employer can be sued for discrimination (e.g., race, religion, color, national origin, sex [including pregnancy], military status, age, marital status, sexual orientation, gender expression or identity, genetic information, disability or any other personal characteristics considered to be a protected class under applicable federal, state or local laws)

Updating the policy matters because when sued for discrimination by a different protected class, you will be able to explain that everyone is protected in the workplace.

2. It does not list potential remedial measures (e.g., termination, suspension, probation, demotion, reassignment, etc.).

Updating the policy matters because employees who do not know the consequences are unlikely to care about changing behavior and, more importantly, without clear expectations an employer can be sued for arbitrarily applying their policy in a discriminatory manner.

Updating the policy matters because without records you have nothing when faced with a Department of Labor audit or a prospective lawsuit. More so, you can justify termination for cause when an employee violates your policy, which they affirmatively agreed to follow.

Moreover, there are ramifications for employers who do not have their employees take the training (i.e., it's a misdemeanor and likely will trigger an EPLI insurance provider to disclaim coverage in a prospective sex discrimination lawsuit). With risk avoidance being the key to these new laws, a sexual harassment vendor should offer the following: