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Wednesday, September 28, 2022

Tattoo Stigma Discrimination - Maybe It's Too Woke?

Andrew M. Lieb, Esq., MPH new york city , nyc counsel

The New York City Council introduced a bill to prohibit discrimination against people based on their tattoos. Are they taking discrimination law too far?

Yes, it's true that employers ban tattoos at the workplace all the time. Yes, there is a stigma attached to those with tattoos. Yes, that stigma is not associated with actual data of lower work quality or effort and it's therefore, wrong. However, unlike sex, religion, marital status, familial status, sexual orientation, race, and the rest of the protected classes in New York City, getting a tattoo is a personal choice. Or is it? Don't some religions endorse tattoos (e.g., Buddhism and Hinduism) and isn't tattoo discrimination therefore religious discrimination? But, wouldn't those with religious tattoos already have a discrimination claim if they were denied employment and not need this bill?

What do you think? Do you think tattoos should be a protected class giving rise to a discrimination lawsuit if someone is denied work because of their tattoo?

Shouldn't jobs be based on work quality alone? Or, shouldn't a boss have some say in who works for the company outside of qualifications?

This is a tough one.

Artificial Intelligence Decides if You're Hired! Is It Discriminatory?

Richard Hermer-Fried, Esq. Artificial Intelligence Discrimination , Bill Int. No. 1894-A

Wonder why you were denied the last job or promotion you applied for?

Wonder no more, because there is a good chance that it wasn't a human's decision. In fact, Artificial Intelligence "AI" has become the judge on who is hired or who is promoted for most employers and employment agencies. However, AI isn't perfect and may be infringing on your anti-discrimination rights if it's not properly programmed and regularly audited.

That is why AI or Automated Employment Decision Tool "AEDT" has been the target of much scrutiny. Experts point out that AEDT are prone to bias in their hiring and promotion process. Biases include racial, sexual, and ethnic discrimination, amongst so many other protected categories. This problem has become so worrisome that New York City is putting in place an amendment to the New York City Administrative Code to curb the use of AI in hiring.

Such amendment was approved by the New York City Counsel on November 10th, 2021. It can be read here. The purpose of the Bill is to require employers and employment agencies to assess employees and candidates without the use of machine learned biases. The effects of such machine learned biases are discriminatory in nature.

Now, the Bill is on the Mayor's desk and goes into effect on January 1, 2023.

The Bill is limited to regulating AI decisions that screen candidates for employment or screen employees for promotion. This limitation is not without exception. An AEDT is allowed if the tool has undergone an independent bias audit no more than one year prior to it use. The audit's summary then must become publicly available on the employers' or employment agencies' website.

But how will you know if the employer or employment agency is using AEDT on you? The law enforces notification guidelines that will inform employees and candidates of its use.

If caught in violation of the law, employers and employment agencies face fines of up to $500 for the 1st violation, and fines between $500 to $1,500 for each subsequent violation. Plus, they may be exposed to a discrimination lawsuit with compensatory damages, punitive damages, penalties and attorneys' fees being awarded to the victim. If you believe that you were discriminated against by an AI / AEDT, your lawyer will be able to determine it's involvement during the lawsuit and leverage the company's non-compliance with the NYC Bill to win your case.

Assaulting and Injuring a Landlord Is Not Enough for Eviction

Anonymous evictions , Landlord

In the Matter of Bryant v. Garcia, the First Department found that the termination of a tenant’s tenancy was too much of a penalty for hitting the landlord’s employee.

In this case, the tenant was a 64-year-old woman who has been a New York City Housing Authority (NYCHA) tenant for more than 40 years and who “suffered a momentary loss of control when she struck respondent’s employee, whom she believed to be in a relationship with her former partner” per the First Department. Due to the incident, the NYCHA terminated her lease and the tenant is now seeking to vacate that determination.

The Court granted her request and found that because the tenant has lived there for more than 40 years without incident and that the NYCHA has not showed any other proof that the tenant presents a safety concern, a lesser penalty than terminating her lease is warranted. Now, it’s up to the lower court to determine what the lesser penalty should be.

What do you think the penalty should be? Should assaulting and injuring a landlord be enough to evict?

Commercial Eviction and Foreclosure Nonpayment Proceedings Stayed Until September 20, 2020

Anonymous Commercial , eviction

On August 20, 2020, Governor Cuomo signed Executive Order 202.57 which, among others, extended Executive 202.48 and 202.28. Per the Executive Order, the following are stayed until September 20, 2020:

Commencing a commercial eviction proceeding against any commercial tenant for the nonpayment of rent;
Commencing a foreclosure of any commercial mortgage for nonpayment of such mortgage; and
Enforcing of such eviction or foreclosure.

As to #3, the Executive Order is unclear as to what is actually prohibited in terms of enforcing an eviction or foreclosure, but it could mean that executing a warrant of eviction or conducting a foreclosure sale are currently prohibited. Stay tuned should future Executive Orders or Court Administrative Orders provide clarification.

As to holdover eviction proceedings, the Executive Order does not specifically address them, thus residential and commercial holdover eviction proceedings may be commenced but they remain suspended per Administrative Order 160/20.

As a reminder, for proceedings commenced prior to March 17, 2020, the execution of the warrant of eviction for residential properties is stayed until October 1, 2020. For properties outside New York City, you can read more about the current eviction rules HERE.

In New York City, the execution of the warrant of eviction for residential properties is stayed until October 1, 2020 and until September 4, 2020 for commercial properties. For properties in New York City, you can read more about the current eviction rules HERE and HERE.

NYC Residential Evictions Stayed until October 1, 2020

Anonymous Commercial , DRP 213

In addition to the directives set by the Court in Administrative Order 160/20 which we discussed in our blog HERE, New York City evictions are also governed by the following directives found in DRP 213:

Only in New York City, residential evictions are prohibited until October 1, 2020 and until September 4, 2020 for commercial evictions. This means eviction proceedings may be commenced but the Marshall cannot evict residential tenants until October 1, 2020 or until September 4, 2020 for commercial tenants.

Beginning August 20, 2020, NYC Courts will begin accepting requisitions who have obtained judgments of possession issued before March 17, 2020. Such requisitions must be presented by motion on notice to the respondent and such motion must include the Notice to Respondent-Tenant and be served by mail and email, if possible. Trials for commercial evictions will also be conducted and virtual trials are strongly encouraged whenever possible. See DRP 214.

Beginning August 20, 2020, landlords seeking to enforce a warrant of eviction issued before March 17, 2020 must request permission from the court through a motion on notice to respondent-tenant. Such motion must also include the Notice to Respondent-Tenant and be served by mail and email, if possible.

In all matters where all parties have appeared, the judge has discretion to address any unexcused absence for noticed virtual or in-person appearances / conferences. The judge may reschedule with a “final” marking, resolve issues against such non-appearing party, impose sanctions, or issue a judgment of contempt.

For deadlines to file an answer in residential eviction proceedings, no adverse action shall be taken based on the failure to file an answer in an eviction proceeding or failure to submit responsive papers to a motion submitted through the Electronic Document Delivery System (EDDS). All other rules contained in AO 160/20 and 121/20 remain in effect.

Evictions Resume, But New Eviction Rules Stay Residential Evictions Until October 1, 2020

Anonymous administrative order , Commercial

On August 12, 2020, Judge Lawrence K. Marks published a memorandum and an Administrative Order on the filing and prosecution of residential and commercial evictions in New York State. Landlords and property managers should take note of the following, effective August 13, 2020:

1. Evictions commenced prior to March 17, 2020 may continue but it is subject to the following rules:

a. Proceedings continue to be governed by the suspension of filing deadlines as per Executive Order 202.8 as extended to September 4, 2020 by Executive Order 202.55. This means that the deadline to file an Answer to the Landlord-Tenant Petition or appear, among others, is suspended until September 4, 2020.

b. Commercial Matters:

Commencement and enforcement against tenants facing financial hardship due to the COVID-19 pandemic is stayed until August 19, 2020 pursuant to Executive Order 202.28.
Commercial eviction matters may otherwise proceed in the normal course, subject to the tolling of statutory deadlines by Executive Order 202.8, as extended by Executive Order 202.55, as explained above.

c. Residential Matters:

For all eviction matters commenced prior to March 17, 2020, including those with a warrant of eviction that has been issued but not yet executed, courts must hold a status or settlement conference to address a range of subjects related to the case and COVID-19 concerns.
After such conference, the court may take whatever steps it deems appropriate, such as deciding pending motions, entertaining new applications, or allowing the matter to move forward in its normal course.
No residential eviction may take place prior to October 1, 2020 or such later date or dates set by law.

2. Evictions commenced on or after March 17, 2020 are suspended, regardless of whether it is commercial, residential, nonpayment, or a holdover. They may be commenced but will remain suspended until further order of the court. Nonetheless, eviction matters in which all parties are represented by counsel shall be eligible for virtual settlement conferences.

3. Filing and service in eviction proceedings requires represented parties to commence new matters electronically through NYSCEF, if available, and by mail if not. Unrepresented parties may file papers in person. See AO/121/20.

4. Eviction proceedings should be conducted remotely whenever appropriate.

5.   Commencement papers in commercial and residential evictions proceedings must continue to include the form notice indicating that respondent-tenants may be eligible for an extension of time to respond to the complaint. You can find the notice HERE.

6.   New York City eviction matters shall be governed by AO/160/20 and DRP 213.

7.   Administrative Order AO/127/20 is superseded and is no longer in effect. Thus, the form affidavit / affirmation from the landlord / landlord’s counsel regarding the tenant’s COVID-19 hardship is no longer required, among others.

NYC Reporting Requirements for Airbnb Rentals Amended

Anonymous airbnb , new york city

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.

NYC Civil Court COVID-19 Directives on Evictions Based on Non-Payment of Rent

Anonymous Civil Court , coronavirus

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.

Commercial Personal Guaranties Deemed Unenforceable in NYC Council’s COVID-19 Relief Bill – Litigation to Follow if Enacted

Anonymous #listentolieb , #realestateinvestingwithandrewlieb

On May 13, 2020, the NYC Council approved Int. No. 1932-A, which makes substantial changes to personal guaranties in commercial leases. The bill is on the Mayor’s desk to be enacted.

The bill’s purpose is to provide relief to NYC commercial tenants impacted by COVID-19. It temporarily prohibits the enforcement of personal liability provisions in commercial leases or rental agreements. It would amend the Administrative Code of the City of New York by adding Section 22-1005 and adding Paragraph 14 to Subdivision a of section 22-902 of the NYC Administrative Code.

If enacted, the bill would render guarantee provisions unenforceable against natural persons who are not a tenant in commercial leases or other rental real property. The law would only impact liability for the payment of rent and other charges caused by an occurrence of default, and subject to the following conditions:

1. The tenant must satisfy at least one of the following:

a) The tenant was required to cease serving patrons food or beverage for on-premises consumption or to cease operation under EO 202.3;

b) The tenant was a non-essential retail establishment subject to in-person limitations under guidance issued by the NYS Department of Economic Development pursuant to EO 202.6; or

c) The tenant was required to close to members of the public under EO 202.7; and

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.

Under the bill, an attempt to enforce a personal liability provision that the landlord knows or reasonably should know is unenforceable, pursuant to the above, shall be deemed commercial tenant harassment, which could result in compensatory and punitive damages and attorneys’ fees and court costs. See N.Y.C. Admin. Code § 22-903.

Sounds too good to be true for many tenants and often when it’s too good to be true, it’s untrue. Expect this law to be challenged on constitutional grounds should it be enacted. Specifically, the bill seems to impair the Contracts Clause of the United States Constitution because it retroactively affects personal guaranties entered into prior to the bill’s passing. For such a claim to succeed, the initial inquiry under the impairment of contracts clause contains three components:

Whether there is a contractual relationship;
Whether a change in law impairs that contractual relationship; and
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).

While tenants will surely argue that the bill doesn’t substantially impair the parties’ contractual relationship, as the bill only covers rent and payments for the period of March 7, 2020 to September 30, 2020, landlords will counter that the personal guarantee was a material term of the lease and a substantial reason that the landlord agreed to enter into the contract.

For analogy, the Court of Appeals has previously struck down similar government interference in contacts. In Patterson v. Carey, the Court of Appeals struck down a law which curtailed toll authority bondholders’ ability to increase their tolls for Jones Beach State Parkway on constitutional grounds. 41 N.Y.2d 714 (1977).

If the NYC bill passes, it would likely undergo similar challenges and review as the law in Patterson and be deemed unconstitutional. The bill’s impairment to contractual rights agreed upon by landlords and guarantors would be substantial, especially considering that the bill does not merely delay a landlord’s right to enforce the guarantee during the period stated in the bill, it extinguishes it altogether.

Mayor DeBlasio has until June 12, 2020 to either sign, veto, or do nothing. If the Mayor signs the bill or does nothing, the bill will automatically become law. If the Mayor vetoes the bill, it is sent back to the Council. The Council can then override the Mayor’s veto with a 2/3 vote.

In the meantime, both landlords and tenants should contact their attorneys to ensure that their interests are protected and to prepare for expected lawsuits to follow. For ideas on how to creatively resolve lease issues due to coronavirus and for tips on important lease provisions when renegotiating, listen to our podcasts HERE and HERE.

NYC Housing Court on Eviction Moratorium Due to Coronavirus

Anonymous coronavirus , court

Effective March 13, 2020, the New York City Housing Courts are on a one-week moratorium on evictions in New York City, subject to further extension upon review. Further, New York City Housing Court is also directed to decline to issue new eviction warrants when a party has not appeared in court, until further notice.

This moratorium is imposed through a memorandum on the coronavirus from the Chief Administrative Judge of the State of New York Unified Court System. You can read the memorandum here.

New NYC Transfer and Mansion Tax Rates | Summary of Transfer Tax Rates for NYC, Nassau, Suffolk, and Westchester Counties

Anonymous Mansion tax , Nassau County

On March 31, 2019, Governor Cuomo signed the New York State Budget for the 2020 Fiscal Year. Notable changes include increased real estate transfer tax rates and mansion taxes for properties in New York City and other cities with a population of over 1 million.

The new transfer tax and mansion tax rates apply only to property transfers in New York City (and other +1MM cities) after July 1, 2019, except for transfers with contracts signed on or before April 1, 2019 provided that the “date of execution of the contract is confirmed by independent evidence, such as the recording of the contract, payment of a deposit or other facts and circumstances determined by the commissioner of taxation and finance.” Transfer tax rates for counties outside New York counties remain the same.

Many writers have commented on these new rates causing much confusion as NYC has its own transfer tax separate and apart from NYS. The NYC transfer tax remains unchanged. However, the NYS transfer tax, as applicable to NYC (and other +1MM cities) has been increased. So, now NYC has two (2) transfer taxes, one (1) to the state and one (1) the city, that are each different from the majority of the rest of NYS.

NEW YORK CITY

New York State Residential Real Property Transfer Taxes apply to the following:
Residential Type 1: A transfer of economic interest in: a one- to three-family house;

an individual residential condominium unit; or
an individual cooperative apartment.

Residential Type 2: A grant, assignment, or surrender of, or the transfer of an economic interest in a leasehold interest in:

a one, two, or three family house; or
an individual dwelling unit in a home of more than three families living independently of each other.

NYC – Residential Real Property Transfers
Purchase Price	NYS Transfer Tax	NYC Transfer Tax	Mansion Tax Rate
Payor	Seller	Seller	Buyer
$1 - $500,000	0.40%	1%	N/A
$500,001 - $1,000,000	0.40%	1.425%	N/A
$1,000,000 - $1,999,999	0.40%	1.425%	1.00%
$2,000,000 - $2,999,999	0.40%	1.425%	1.25%
$3,000,000 - $4,999,999	0.65%	1.425%	1.50%
$5,000,000 - $9,999,999	0.65%	1.425%	2.25%
$10,000,000 - $14,999,999	0.65%	1.425%	3.25%
$15,000,000 - $19,999,999	0.65%	1.425%	3.50%
$20,000,000 - $24,999,999	0.65%	1.425%	3.75%
$25,000,000 or more	0.65%	1.425%	3.90%

NYC – All Other Transfers (Multi-Use, Commercial, etc.)
Purchase Price	NYS Transfer Tax	NYC Transfer Tax	Mansion Tax Rate
Payor	Seller	Seller	Buyer
$1 - $500,000	0.40%	1.425%	N/A
$500,001 - $1,000,000	0.40%	2.625%	N/A
$1,000,000 - $1,999,999	0.40%	2.625%	1.00%
$2,000,000 - $2,999,999	0.65%	2.625%	1.25%
$3,000,000 - $4,999,999	0.65%	2.625%	1.50%
$5,000,000 - $9,999,999	0.65%	2.625%	2.25%
$10,000,000 - $14,999,999	0.65%	2.625%	3.25%
$15,000,000 - $19,999,999	0.65%	2.625%	3.50%
$20,000,000 - $24,999,999	0.65%	2.625%	3.75%
$25,000,000 or more	0.65%	2.625%	3.90%

NASSAU COUNTY

Purchase Price	NYS Transfer Tax	Mansion Tax Rate
Payor	Seller	Buyer
$1 - $999,999	0.40%	N/A
$1,000,000 or more	0.40%	1%

SUFFOLK COUNTY

Purchase Price	NYS Transfer Tax	Peconic Bay Transfer Tax*	Mansion Tax Rate
Payor	Seller	Buyer	Buyer
$1 - $999,999	0.40%	2%	N/A
$1,000,000 or more	0.40%	2%	1%

*Applies to properties in Southold, East Hampton, Southampton, Riverhead, and Shelter Island and subject to exemptions

WESTCHESTER COUNTY

Purchase Price	NYS Transfer Tax	Yonkers Transfer Tax	Mt. Vernon Transfer Tax	Mansion Tax Rate
Payor	Seller	Seller	Seller	Buyer
$1 - $25,000	0.40%	N/A	N/A	N/A
$25,001 - $100,000	0.40%	1.5%	N/A	N/A
$100,001 - $999,999	0.40%	1.5%	1% after first $100,000	N/A
$1,000,000 or more	0.40%	1.5%	1% after first $100,000	1%

Wednesday, September 28, 2022

Tattoo Stigma Discrimination - Maybe It's Too Woke?

Wednesday, November 24, 2021

Artificial Intelligence Decides if You're Hired! Is It Discriminatory?

Monday, February 15, 2021

Assaulting and Injuring a Landlord Is Not Enough for Eviction

Friday, August 21, 2020

Commercial Eviction and Foreclosure Nonpayment Proceedings Stayed Until September 20, 2020

Thursday, August 20, 2020

NYC Residential Evictions Stayed until October 1, 2020

Thursday, August 13, 2020

Evictions Resume, But New Eviction Rules Stay Residential Evictions Until October 1, 2020

Thursday, July 09, 2020

NYC Reporting Requirements for Airbnb Rentals Amended

Thursday, June 18, 2020

NYC Civil Court COVID-19 Directives on Evictions Based on Non-Payment of Rent

Thursday, May 21, 2020

Commercial Personal Guaranties Deemed Unenforceable in NYC Council’s COVID-19 Relief Bill – Litigation to Follow if Enacted

Friday, March 13, 2020

NYC Housing Court on Eviction Moratorium Due to Coronavirus

Friday, April 05, 2019

New NYC Transfer and Mansion Tax Rates | Summary of Transfer Tax Rates for NYC, Nassau, Suffolk, and Westchester Counties

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