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

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.

Supreme Court Rules that Homosexual and Transgender Employees are Protected from Discrimination Under Title VII

On June 15, 2020, the United States Supreme Court issued a decision in three companion cases (Bostock v. Clayton County; Altitude Express, Inc. v. Zarda; R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC) holding that Title VII of the Civil Rights Act of 1964 protects homosexual and transgender employees from discrimination/harassment in the workplace.

In all three (3) cases, the employer terminated the employee's employment after it was revealed that the employee was homosexual or transgender. Each employee brought suit under Title VII claiming that they were fired because of their "sex" (Title VII prohibits discrimination based on race, color, religion, sex and national origin). The Supreme Court held that "sex", pursuant to Title VII, includes sexual orientation and transgender as protected classes because, as the Court reasoned, "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

The Court provided the following example to illustrate its position: An employer has two employees, a female and a male, both of whom are attracted to men. If the employer fires the  male employee for no reason other than the fact he is attracted to men, the employer discriminates against him because the employer is tolerating the same trait or behavior from the female employee. The employer, the Supreme Court held, has thus terminated the employee "because of sex" in violation of Title VII.

This decision is particularly noteworthy because Justice Gorsuch and Chief Justice Roberts, typically known as  "conservative" justices, were in the majority (Justice Gorsuch authored the Decision). This signifies the courts continued emphasis on interpreting laws to protect employees from discrimination in the workplace. Employers should, thus, take even more proactive steps (including but not limited to policies and training) to mitigate the risks of discrimination lawsuits.

Podcast | Real Estate Re-Opening - Bringing Investors into your Acquisitions

The Real Estate market has reopened and investors are everywhere. We review the legal requirements to take on investors and review calculations to make sure you are making the right decisions.