“No real estate broker or salesperson shall engage in an unlawful discriminatory practice, as proscribed by any federal, state or local law applicable to the activities of real estate licensees in New York State. A finding by any federal, state or local agency or court of competent jurisdiction that a real estate broker or salesperson has engaged in unlawful discriminatory practice in the performance of licensed real estate activities shall be presumptive evidence of untrustworthiness and will subject such licensee to discipline, including a proceeding for revocation. Nothing herein shall limit or restrict the Department from otherwise exercising its authority pursuant to section 441-c of the Real Property Law.”

Is the new law than just lip service to appease the public after the Newsday investigation which uncovered rampant housing discrimination violations in the real estate industry?

Weigh in.

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.

New Chapter 90 of the Brookhaven Town Code requires expeditors to register or "be guilty of a misdemeanor."

The moratorium on foreclosures expires on August 20th (EO 202.28) and a foreclosure tsunami is coming.

According to CNBC, "32% of U.S. households missed their July housing payments" based on a survey by Apartment List, which also advises that 17% of "homeowners [are] concerned about foreclosure."

To prepare for the tsunami, we are giving you our 10-Point Inspection Checklist to evaluate a foreclosure case. Whether we are representing the lender or the borrower, we utilize this list to evaluate the strength of the case, which, when coupled with an evaluation of the borrower's current mortgage terms (i.e., L/V ratio front end/back end, interest rate, principal, interest to date, penalties, attorneys' fees, months of missed payments, prior modifications/forbearances, etc.) is how we assess whether a modification, or other workout, should be considered.

10 Point Inspection Checklist:

1. Standing of plaintiff (owner / holder of note on date of commencement or authorized agent of such owner / holder pursuant to Pooling and Servicing Agreement or other agreement)
2. Record admissibility (swearing to business records of another entity; failure to attach business records to affidavits)
3. RPAPL 1303 / 1304 / 1305 / 1306 compliance
4. Acceleration / Deacceleration (statute of limitations) 
5. Notices tendered in satisfaction of note terms
6. Lis Pendens filing
7. Payment history for default calculations / date (requisite missed months for default requirement in note / aligned with notices / statute of limitations)
8. Default on Answer with time since settlement conference for late answer availability
9. Service / personal jurisdiction issues
10. Pleadings requirements (Certificate of Merit - CPLR 3012-B, RPAPL 1302)

In our upcoming Real Estate Investing shows, WRCN / FM 103.9 / Sundays at Noon, we will be breaking down this list into plain English and showing you how to litigate foreclosure cases whether you are the lender or the borrower.

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.

The NYS Appellate Division recently clarified that "[t]he fact that the security vouchers are a guarantee of payment, rather than a cash payment, does not render them not 'income,' as they are an item of value, worth a payment of up to one month's rent on the tenant's behalf to compensate for unpaid rent or damages to an apartment."

Landlords, brokers, and property managers be warned - you cannot deny a prospective tenant based upon the source of their money for their security deposit as well as for their rent.

Click to read the full Appellate decision, Estates NY Real Estate Servs. LLC v City of New York.

Discrimination lawsuits are everywhere, but they are easy to avoid so long as you treat everyone equally irrespective of their membership in a protected class.

If you get sued for discrimination, lawyer-up fast and watch what you say. Many defendants dig their grave when they get sued for discrimination by acting irrationally. Protect yourself and your company now with trainings at liebcompliance.com

On July 14, 2020, the Suffolk County Fair Housing Task Force convened for the first time after its creation and after delays due to the coronavirus pandemic. Its meeting agenda included a discussion of the group’s mission, goals, and expectations. The Task Force is expected to hold public hearings to gather information from residents, experts, and advocates and thus, provide the legislature and County Executive with their report of findings. The Task Force is also expected to start its efforts to combat housing discrimination in Suffolk County. Thus, real estate brokers are reminded of their duty to supervise agents and to be prepared by ensuring that agents receive proper training and that they comply with Fair Housing and discrimination laws.

As background, the Task Force was formed by resolution after the results of a multi-year investigation by Newsday and testers found extensive evidence of impermissible steering of consumers based on race. As such, the Task Force was charged with the responsibility to conduct a comprehensive review of Suffolk County’s Human Rights Law and provide recommendations to improve and strengthen these regulations to more effectively and efficiently stop individuals from discriminating against potential buyers of homes in Suffolk County.

Real estate brokers should be aware that private discrimination claims can include claims for actual damages, punitive damages, statutory penalties, attorneys’ fees and costs, as well as, the suspension or revocation of real estate licenses. To prevent liability and ensure that your licensed associates are properly trained to comply with current Fair Housing and discrimination laws, contact Lieb Compliance HERE for on-demand custom digital trainings for your licensed associates.

Effective immediately, landlords and lenders no longer need to submit an attorney affirmation or petitioner’s affidavit with the petition or complaint in an eviction or foreclosure proceeding pursuant to Administrative Judge Marks’ July 7, 2020 memorandum.

This directive amends the procedure for eviction and foreclosure proceedings as set forth on Judge Marks’ June 18 and June 23, 2020 memoranda and as explained in our blogs HERE and HERE. All other requirements and rules stated therein remain in effect. This includes the requirement to serve the Notice to Respondent Tenant or the Notice to Respondent with the commencement documents, as well as rules concerning the calendaring of hearing and motion practice as stated therein.

Governor Cuomo signed Executive Order 202.48 which extended existing executive orders, including Executive Order 202.3. Effectively, Executive Order 202.48 allows off-premises consumption of alcohol, including take-out or delivery, until August 5, 2020.

Restaurant and bar owners should still contact counsel to ensure compliance with the Executive Orders and with the limitations set by the State Liquor Authority as violations can result in penalties of up to $10,000 for retail and $100,000 for manufacturers, and/or suspension, cancellation, or revocation of their liquor license.

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.

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.

On July 6, 2020, Governor Cuomo signed Executive Order 202.48 which affects the validity of many existing executive orders but most notable of which, is that it extends the stay on evictions and foreclosures proceedings to August 5, 2020 for commercial properties, but not for residential properties.

Essentially, Executive Order 202.48 extends the validity of Executive Order 202 up to 202.14, as continued and contained in Executive Order 202.27, 202.28, and 202.38 for another thirty (30) days through August 5, 2020 with some exceptions.

Real estate professionals should be aware that it does not extend the eviction and foreclosure moratorium in place as ordered in Executive Order 202.28 for all residential tenants and mortgagors. However, for commercial properties, an eviction and foreclosure stay is still in place until August 5, 2020.

As such, landlords and lenders should take note of the following:

• Residential evictions may now be commenced but courts are prohibited from awarding warrants of eviction and judgments of possession for tenants experiencing financial hardship for non-payment of rent that accrues or becomes due during the COVID-19 period pursuant to the Tenant Safe Harbor Act. Money judgments may be awarded. For more information, read our blog HERE;
• Residential foreclosure proceedings based on nonpayment due to COVID-19 are prohibited until August 20, 2020 pursuant to Executive Order 202.28;
• Commercial foreclosure proceedings based on nonpayment due to COVID-19 are prohibited until August 5, 2020 pursuant to Executive Order 202.48;
• Commercial evictions based on nonpayment are prohibited until August 5, 2020 pursuant to Executive Order 202.48; and
• Commercial holdover proceedings may be commenced beginning June 21, 2020 pursuant to Executive Order 202.8.

Landlords and lenders are advised to contact counsel to ensure that all laws, executive orders, and court directives in place due to the coronavirus pandemic are followed. As noted in our recent blog HERE, eviction and foreclosure proceedings now require that the petitioner/plaintiff file additional forms with the commencement documents pursuant to recent directives from Administrative Judge Lawrence K. Marks dated June 18, 2020 and June 23, 2020.

Governor Cuomo signed Executive Order 202.48 which extends most Executive Orders due to the coronavirus pandemic. Among others, Executive Order 202.48 specifically extends the tolling of statute of limitations until August 5, 2020 as provided by Executive Order 202.28. As we’ve previously noted in our blog, the Executive Order does not toll all deadlines in pending and ongoing actions. A copy of Executive Order 202.48 and 202.28 can be found HERE and HERE.

Stay tuned to our blog for changes to the current commercial eviction landscape pursuant to Executive Order 202.48.

A recent New York State, Appellate Division case (Hosking v. Memorial Sloan-Kettering Cancer Center) serves as a reminder to employers and landlords that they may be exposed to disability discrimination lawsuits if they do not engage in an "interactive process" prior to denying a reasonable accommodation request, even if the ultimate decision denying the accommodation is legal. As detailed in the above referenced case, a court will not even reach the step of determining whether the denial of the accommodation is legal if the employer/landlord fails to follow the proper process in evaluating the request.

To mitigate exposure to disability discrimination lawsuits (for failure to accommodate), employers/landlords should follow these steps:

1) Disseminate Policy: Employers/landlords should inform employees/tenants, in writing, that reasonable accommodations are provided to qualified individuals and of the process to request a reasonable accommodation. Employers should include its reasonable accommodation policy in its employee handbook and landlords should include its reasonable accommodation policy in its application and/or make the policy available onsite.

2) Provide Reasonable Accommodation Request Form: Employers/landlords should prepare a form for individuals requesting an accommodation to complete. Questions on the request form should include:

• General information of employee/tenant (i.e. name, contact information)
• Nature of the disability
• Requested/suggested accommodation(s) 

• Review accommodation request
• Request supporting medical documentation if necessary from employee/tenant to properly evaluate request 
• Discuss effectiveness/feasibility/reasonableness of potential accommodation(s) with employee/tenant  

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.

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.

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.

Everyone is in the Hamptons this summer. Tenants fled here in March. They are staying even after they were supposed to go back to the city at the end of their lease terms. Unfortunately, tenants have unilaterally elected to illegally holdover in their former rentals because it's not just more beautiful here, it's safer. This has caused major problems for buyers, sellers, and legitimate tenants alike.

• 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.