Shoppers and gift givers need not worry about additional fees on Gift Cards/Certificates this holiday season. New York’s new law protects consumers from the predatory business practice of adding fees on gift cards. As mentioned in greater detail on our previous Blog, the law aims to prevent businesses from charging a plethora of additional fees on gift cards. The law further protects consumers from gift card expiration dates of fewer than 9 years, as well as prohibiting declining balances on gift cards over time. In addition, the law allows consumers to redeem remaining balances of $5 or fewer on gift cards.

If businesses are caught in violation of the Law, not only will they end up on Santa’s Naughty List, but businesses may also face court issued injunctions regardless of proof that anyone was injured or damaged because of the violation; and may face court issued fines of not more than $1,000 per violation.

If you purchased or received a gift card with added fees, an expiration date, or a declining balance then the business that issued the gift card may be liable for compensatory damages, punitive damages, penalties, and attorneys’ fees being awarded to the victim. If you believe that you were subjected to this kind of unlawful business practice by a merchant, you should speak to a lawyer and leverage New York General Business Law section 396-i to win your case.

The New York State Legislature passed Bill S4516C, which criminalizes falsifying COVID-19 vaccination records including cards, and the bill awaits the Governor's signature to become effective, as law, immediately when signed. 

The Bill amends the Penal Law to include vaccination cards as a written instrument. For a false vaccination card to be considered a written instrument the card must include either a government logo or something suggesting it was created by a government entity; it must suggest that the card was provided to a person by a vaccine provider; and must includes a date the person received the vaccine, the type of vaccine, and a lot number.

The Bill also amends the Penal Law to include that when someone intentionally alters, in any manner, or destroys computer material indicating that a person did or did not receive a vaccination against COVID-19, it shall be considered the crime of computer tampering in the third degree.

The penalties for violating this new law are class A misdemeanor for tampering with public records in the second degree; class D felony for tampering with public records in the first degree; class A misdemeanor for offering a false instrument for filing in the second degree; class E felony for offering a false instrument for filing in the first degree; class E felony for issuing a false certificate; and class E felony for computer tampering in the third degree. 

The New York State Legislature passed Bill S3437C that establishes a dedicated phone line for public use to voice complaints of housing discrimination. New York State’s Division of Human Rights will operate the phone line during regular business hours. The phone number will be posted on the Division of Human Rights website.

The Bill amends Human Rights Executive Law The General Powers of the Human Rights Division, Section 295 . It awaits the Governor's signature to become effective, as law, 120 days after it is signed.

Nothing in this Bill prevents you from hiring an attorney to pursue damages resulting from discriminatory conduct. If you believe that you suffered injuries as a result of housing discrimination, you may be entitled to compensatory damages and punitive damages plus, you can have your attorneys' fees paid for by the defendant. 

New York State's Department of Health issued new details for Governor Hochul's statewide mandate requiring face mask/covering at all indoor public places effective December 13, 2021 until January 15, 2022 (State will re-evaluate after this date), for all persons, over age two and able to medically tolerate a face covering/mask, regardless of vaccination status. Indoor public places are any indoor space that is not a private residence. 

The mandate does not apply to indoor public areas that require proof of vaccination as a condition of entry. However, a business cannot "mix and match" i.e. permit individuals who show proof of vaccination to enter mask free while permitting those who do not present proof of vaccination to enter wearing a mask. Either no one is permitted entry that cannot provide proof of vaccination or everyone must wear a mask (whether vaccinated or not).

For example, in a law office where everyone must show proof of vaccination to enter (employees, clients, vendors, etc.) masks are not required.  However, a retail store that does not require proof of vaccination to enter is required to ensure that all individuals present at the store (employees, customers, etc.) wear face coverings regardless of vaccination status.

Per the Department of Health, the following institutions must ensure everyone over the age of two, unless subject to applicable CDC exceptions, is masked (there is no proof of vaccination option): correctional facilities, detention centers, homeless shelters, transportation hubs, schools.

The new requirements are pursuant to New York State administrative rule 10 NYCRR 2.60.  A violation of any of these requirements is subject to a fine of $1,000 for each violation. Businesses should, thus, immediately ensure compliance or face potential crippling fines.

It is the beginning of the end of paper copy lease agreements in NYS, at least for rent stabilized tenants. 

Moving forward, rent stabilized tenants are going to be processing their leases electronically because Bill A02679 passed the legislature and is pending Gov. Hochul's signature. This Bill requires that the Division of Housing and Community Renewal ("DHCR") develops regulations allowing electronic leases and signatures to be used for both leases and lease renewals of rent stabilized tenants. 

However, the Bill makes clear that electronic leases are not yet required. As such, those who may not be well-versed in technology, such as the Baby Boomer generation, need not worry about how this could affect their lease execution process as tenants will be able to choose whether or not they want to execute their lease via electronic means or via a traditional paper copy. A tenant will be presented with a form, developed by DHCR, in the top 6 languages that will confirm that the tenant has the choice whether to consent to the use of electronic records and signatures. Therefore, landlords will not be permitted to require their tenants to execute their lease by electronic means.

It is expected that electronic leases are going to become the norm sooner rather than later. They cut down on costs of office supplies, such as printer ink and paper, while provide for improved organization and retrieval. They save time by avoiding face-to-face meetings and can maximize safety in this COVID world. 

Do you think most rent stabilized tenants will choose to have their leases executed electronically? Or, will paper copies stand the test of time in a constantly evolving technology driven world? Seems unlikely. It's my guess that as the Boomer generation dissipates, paper copy leases will as well. 

 As of October 7^th, 2021, the Town of East Hampton made changes to their Zoning Laws that are relevant to constructing an accessory structure.

§ 255-11-20 of the Town of East Hampton Zoning Laws states that accessory buildings, including garages, if detached from the main building, shall be not less than five feet from the main building and/or from any other accessory building, subject to two exceptions.

One exception is that two or more accessory buildings (including open-air appendages such as porches and screened patios) may be approved to be built or remain, without a minimum five-foot separation, so long as the total aggregate square footage of the buildings is less than 600 square feet, and none of the accessory buildings are a pool house, an art studio, or an accessory apartment, unless all three are open air appendages.

The second exception, is that an enclosed hallway, breezeway or other design feature that functionally separates two livable spaces in a single-family dwelling or separates a livable space in a single-family dwelling and a detached garage, does not apply to § 255-11-20, so long as the width of such hallway, breezeway or design feature is equal to or greater than ½ of its length.

An accessory building is a building which is customarily secondary to a main building. Accessory units do not include a building which is designed, equipped, or used for cooking, living or sleeping purposes. A common accessory building is a garage.

So, if you plan on purchasing a house with an accessory building like a detached garage, or even plan on building one at your Hamptons house, you should comply with this law to avoid liability.

Starting on July 1, 2022, Bill (S2132B) will add increased fair housing and discrimination training for Real Estate Brokers and Salespersons. 

Summary:

• Requires course content to include:
1. Legacy of segregation, unequal treatment, and historic lack of access to opportunity in housing;
2. Unequal access to amenities and resources on the basis of race, disability and other protected characteristics;
3. Federal, state, and local fair housing laws;
4. Anti-Bias training.
• Requires 152 hours of training to obtain a Real Estate Broker license
• Requires 77 hours of training to become a licensed Real Estate Salesperson
• Requires approval of faculty to sign a document, under oath, approved by and submitted to the Department of State, attesting to compliance with all applicable statutory and regulatory requirements pertaining to the instruction of the established curriculum. There will be penalties for faculty that fail to meet their obligations including suspension and revocation of their instructor certificate.

Now there is another initiative by New York State to combat discrimination in real estate.

Effective as of December 21, 2021 a $30 fee has been added for real estate broker / salespersons licenses to cover the costs of the Attorney General to fund fair housing testing throughout NYS. 

Senate Bill S32133A adds a surcharge to the fee paid for issuing or reissuing a real estate broker or salesmen license. 

A new law on landlord's ability to collect legal fees was signed by Gov. Hochul on December 21, 2021 and is effective immediately. The law, S2014, means a lot to owners and landlords in New York. The Bill prohibits owners and landlords from charging lessees any legal fee, surcharge, or other charges for legal services in connection to operating or renting a residential unit, unless the owner/landlord has the legal authority to do so. A lessee is only responsible to pay legal fees if directed by a court order. However, you only get a court order if you go to court and do not resolve issues beforehand. As a result, legal fees for out-of-court negotiations, lease drafting, amendments, and the like are no longer recoverable.

Do you think that owners and landlords will be less likely to resolve disputes without going to court if they can't recover their legal fees? 

It’s no secret that legal work can be costly. So, it is typical for landlord-petitioners to try and recoup the money that they spend retaining an attorney and all of the expenses that come with legal work and legal actions. Aside from legal representation, additional legal fees can include court fees, notary public charges, and administrative charges, to name a few. This bill is aimed at the costs of lease preparation, pre-litigation negotiations, and all the work that landlords need in order to avoid a court case. 

Co-ops are technically landlords to their residents and as a result, all legal fees imposed by the Board for sales, document review, and the like may no longer be recoverable based on this law.  There is no carveout for Co-ops and that needs to be addressed. Perhaps, Governor Hochul should have told the legislature to get it right before she signed the Bill into law.

This is just another obstacle for owners and landlords, which increases the cost of business, and eventually, the rent paid by tenants.

To remind you, this is the case that deputized private citizens to enforce the Texas Heartbeat Act (S. B. 8) and rewarded citizens with a $10,000 bounty for their services. 

In its decision, the Supreme Court permitted courts to hear pre-enforcement challenges to test S. B. 8’s compliance with the Federal Constitution rather than forcing those who were subject to it to first violate the law, be prosecuted, and defend themselves before first raising such Constitutional challenges. Had the Supreme Court not so ruled, it was expected that the threat of the law would chill abortions across TX even if the law ultimately was found to violate the US Constitution.  

A pre-enforcement challenge permits anyone who thinks that a law violates the constitution to bring a lawsuit, in court, and have a court rule whether the law is enforceable or should be struck down before that person violates the law. It's like asking for permission for your actions in the face of a law, that exists, but is possibly violative of the US Constitution. 

The Court limited its holding by dismissing the Judge, Clerk, and Attorney General named in the lawsuit. Instead, the Court directed that a pre-enforcement challenge must be brought against executive licensing officials, in state court, or through other unnamed avenues.

Stay tuned, this was just round one of the TX abortion law. 

The ruling by a Georgia federal judge does not prevent employers or businesses from enforcing vaccine mandates. Rather, the Court issued a nationwide stay of President Biden's Executive Order which required all federal contractors to be fully vaccinated by January 18, 2021.

While the Judge expressed his understanding of the dangers of this public health crisis, he, nevertheless, issued the stay because he believed the Executive Order exceeds the President's authority. The Court further reasoned that the potential harm from enforcing a vaccine mandate on federal contractors (causing many federal contractors to breach their contracts when their employees refuse to get vaccinated) outweighs the harm to public health if the contractors are not vaccinated.

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

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

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

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

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

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

This could cause lenders to either: 

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

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

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

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

For years, businesses have taken advantage of consumers with predatory fees added to gift cards and gift certificates. But this Holiday Season, extra fees on gift cards will get businesses on Santa’s Naughty List!

The New York State Legislature passed a Bill amending section 396-I of the general business law, which bans businesses from charging additional fees on gift cards. The fees mentioned in the Bill include activation fees, retroactive fees, redemption fees, service fees, dormancy fees, latency fees, administrative fees, handling fees, access fees, periodic fees, renewal fees, re-loading fees, or any fee of any kind for gift cards.

The Bill goes further in its consumer protections.  Businesses are banned from selling gift cards where the balance declines over time or declines for nonuse. And if signed into law, it will be unlawful for businesses to sell gift cards with expiration dates unless it’s a promotional gift certificate that expires nine years after its issued and the expiration date is clearly stated.

Perhaps the most joyous aspect of this holiday-timed Bill is, consumers will be given the ability to redeem for cash value the remaining balance on a gift card if the remaining value is less than five dollars. However, there is an exception if the gift card is an open loop or promotional certificate.

While the holidays may be on our minds, it’s important to note that the Bill covers several types of gift cards that can be used across many types of businesses all year round.

Governor Hochul has until December 8^th to sign the Bill into law.  Once signed, the law will come into effect in one year.

If caught in violation of the law, businesses can be held liable for compensatory damages, punitive damages, penalties and attorneys’ fees being awarded to the victim. If you believe that you were subjected to this kind of unlawful business practice by a merchant, your lawyer will be able to determine its involvement during the lawsuit and leverage the business’s non-compliance with the NYS Bill to win your case.

New York City Mayor de Blasio announced, through the media, new vaccine mandate requirements for New York City’s five boroughs.  Starting December 27^th all private-sector workers will be required to show proof of vaccination. This is the first vaccine mandate in the nation that applies to all private sector workers. Approximately 184,000 businesses will be affected. Mayor de Blasio called the new measures a “preemptive strike” in facing the new challenges associated with the Omicron variant, the colder weather affecting the delta variant, and holiday gatherings.

Additional measures include, requiring children ages 5-11 to show proof of one vaccine dose for indoor dining, fitness, and entertainment and requiring individuals 12 and older to show proof of two vaccine doses unless they received the Johnson & Johnson single vaccine dose. These measures are effective as of December 14th.

Mayor de Blasio called the measures universal in their enforcement and is confident that this expansion to “Key to NYC” Program will overcome any legal challenge.

Mayor de Blasio said the city’s health commissioner has put these new vaccine requirements into place. However, New York City’s Department of Health has not yet published the order detailing the requirements of the new mandate.

Issues involving the enforcement of these private-sector vaccine mandates will likely be something mayor-elect Eric Adams will have to deal with next year.

The 15 public school teachers who challenged New York City’s COVID-19 vaccine mandate live to fight another day in court.

The teachers have refused to comply with the City’s mandate arguing that compliance with the COVID-19 vaccine mandate is a violation of their religious rights under the First Amendment’s free exercise clause.

The Court determined that the reasonable accommodation standards in the City's vaccine mandate was unconstitutional as applied to the 15 teachers because the mandate required employees who requested a religious exemption to the COVID-19 vaccine mandate to submit a letter from a religious leader confirming the validity of the employee's religious beliefs. If the religious leader had well-documented public comments in support of taking the vaccine, the request for exemptions would be denied.

The Court reasoned as follows:

Denying an individual a religious accommodation based on someone else's publicly expressed religious views-even the leader of her faith-runs afoul of the Supreme Court's teaching that "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds."

However, the Court declined to extend protections against the mandate to all teachers stating that the mandate itself was "a reasonable exercise of the state's power to act to protect the public health."

Based on this decision, employers should only consider the employee's specific religious beliefs (in determining whether they are "sincerely held") when processing a reasonable accommodation request. Someone else's belief  - even if it is a religious leader - is irrelevant. 

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. 

On November 18, 2021, the NYS Board of Real Estate continued its mission of optimizing the regulation of real estate brokers in our state by holding its meeting. 

To remind real estate brokers and salespersons, the public is welcome at these meetings where the public can bring comments from the floor. Its encouraged that Lieb School students attend these meetings to have your voices heard.

"[T]he Board has general authority to promulgate rules and regulations affecting real estate brokers and salespersons in order to administer and effectuate the purposes of Article 12-A of the Real Property Law."

A complete video of the meeting is available on youtube.

In summary, the following was discussed:

• Exam Results - January through September 2021:
• Salesperson = 20,046 applicants with a pass rate of 54%
• Broker = 1,477 applicants with a pass rate of 57%Order U
• License Enforcement - July through November 2021:
• Complaints = 273
• Investigations Completed = 188
• Closed (no violations) = 26
• Closed (warning / instruction letter) = 31
• Closed (private resolution) = 7
• Closed (abandoned) = 16
• Closed (duplicate) = 9
• Closed (insufficient evidence) = 51
• Closed (civil matter jurisdiction) = 7
• Hold (licensee action required prior to renewal) = 13
• Referred for Disciplinary Prosecution - 28
• Live distance education is still permitted