Public work projects involving New York State entities are lengthy, extensive, chaotic, and often result in a variety of disputes based on timeframe, requisition for payments, and when payments are due.

Consequently, NY amended a previous law that changes the definition of how contractors get paid to make it an easier and quicker process. 

Substantial completion is now defined as the completion of "work or major portions thereof as contemplated by the terms of the contract.

Based on this new definition, it's time for contractors to revise the terms of the government contracts with this new language. 

For reference, the new NYS law amends State Finance Law §139-f and General Municipal Law §106-b, which require contractors working on a public work project to submit requisitions for payment of completed work that is "substantially completed" to a public owner. The amendments clarify the meaning of  "substantial completion" in public work projects.  

Previously, Senate Bills S.7664 and and A.9117 amended section 139-f of the state finance law to define "substantially completed" work on a public work project as "the state in the progress of a project when the work required by the contract" is completed. 

The new law supersedes both Senate Bills S.7664 and A.9117 with its new definition of "substantial completion.

Based on this narrow and concise definition of "substantial completion,", this amendment will undoubtedly create far less chaos, confusion, and turmoil during the course of an ongoing public works project. 

The United States Court of Appeals for the Second Circuit of New York recently dismissed a lawsuit filed by four African American firefighters, pursuant to the American with Disabilities Act, claiming that the FDNY discriminated against them by denying their request for a reasonable accommodation to grow facial hair.

In Bey et al. v. City of New York et al., the four African American firefighters suffered from pseudofolliculitis barbae ("PFB"), a skin condition most commonly affecting African American males, which causes skin irritation after shaving (The lower court previously dismissed the plaintiffs race discrimination claims). The Second Circuit ruled that the FDNY did not discriminate against the firefighters because they were abiding by a binding safety regulation requiring firefighters to be clean shaven in areas where a respirator seals against the skin on their faces. The Court further stated that any challenge to this regulation should be directed to OSHA (Occupational Safety and Health Administration), not their employer. 

Do you agree with the decision? 

New legislation, which passed the NYS Senate and Assembly on June 9, 2021 and is awaiting signature by Governor Cuomo, will require employers who monitor employees' e-mail or internet usage on any electronic device (e.g. phone or computer) to provide notice of such monitoring to all employees.

The notice must be in writing (acknowledged by the employee), provided to all employees upon hiring and posted in the workplace. 

The bill further provides that the notice must contain the following:

"An employee shall be advised that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means." 

Employers who fail to provide the required notice are subject to fines of between $500- $3,000 per offense. 

The bill is effective 180 days after Governor Cuomo signs the bill into law.

In Burns v. Town of Palm Beach, the 11th Circuit said free speech does not let you build a mansion when zoning prohibits it.

This case is a true Palm Beach tale. 

Donald Burns sought to knock down his "traditional" beachfront mansion and build an entirely new one, double the size, in a mid-century modern style. 

Get that - mansion #1 wasn't big enough so he needed mansion #2. 

In order to build his new mansion, Burns had to obtain approval from the Town of Palm Beach's architectural review commission. 

However, the commission denied Burns' building permit and found that his new mansion was not in harmony with the proposed developments in land in the general area and was excessively dissimilar to other homes within 200 feet in terms of architecture, size, and mass. 

This prompted Burns to take the dispute to federal court where Burns sued the town, claiming that the denial of his building permit was a violation of his First Amendment free speech rights and Fourteenth Amendment rights to due process and equal protection. 

Our hats are off to Burns' attorneys for this creative argument (lawyers that think outside the box are the best client advocates). Yet, Burns lost. 

The 11th Circuit found that architectural design was not protected by the First Amendment because "there was no great likelihood that some sort of message would be understood by those who viewed Burns's new beachfront mansion." 

In the majority opinion, Judge Robert Luck stated that "one day, we may even find some residential architecture to be expressive conduct. . .but Burns' new mansion is not Monticello or Versailles. . ." 

Do you agree?

Should artistic expression override zoning laws?

The United States District Court for the Southern District of Texas held that the Houston Methodist Hospital's policy requiring employees to be vaccinated against COVID-19, under the threat of termination, is lawful.

In Bridges et al. v. Houston Methodist Hospital et al., 117 hospital employees sued the hospital for "unlawfully forcing its employees to be injected with one of the currently-available vaccines or be fired." The plaintiffs alleged that they were wrongfully terminated and compared the vaccination requirement to "forced medical experimentation during the Holocaust."  

Citing to EEOC guidance (which is not binding) stating that employers can mandate COVID-19 vaccinations subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs, the Court dismissed plaintiffs' wrongful termination claim (Texas law only protects employees from being terminated for refusing to commit a criminal act). The Court also dismissed the plaintiffs' claims that requiring vaccinations is against public policy because the employees were not coerced to take the vaccine (clearly distinguishing a mandatory vaccination policy from plaintiffs' absurd example of forced injections in concentration camps). Rather, the hospital is trying to protect against a spread of COVID-19 and employees "can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else." The Court equated a mandatory vaccination policy to changing an employee's schedule or office location in the sense that "every employment includes limits on the worker's behavior in exchange for his remuneration. That is all part of the bargain." 

This is the first of likely many challenges to employer mandatory vaccination policies. Do you think permitting employers to implement mandatory vaccination policies is against public policy? If so, why?

A new NYS law permits tenants who did not occupy a foreclosure premises at the time of the commencement of the foreclosure lawsuit to remain in occupancy for the remainder of their lease term, up to a maximum of 3 years. 

This new law gives tenants greater protection in the event that they happen to occupy a home subject to a foreclosure action, prior to their possession. The ongoing COVID-19 pandemic has caused so much chaos, disruption, and hardship to families across this nation (and the world for that matter) and the ability for families to be able to remain in a rental dwelling that is being foreclosed upon for at least the remainder of their lease and up to a maximum of 3 years, can give these families some relief and afford them a little more time to figure out their next move. 

On the other hand, this law could create delays in the purchase and sale of residential homes due to a tenant's ability to remain at a foreclosed home as referenced above. 

Would you even want to buy a house from foreclosure anymore? 

Do you support the new law that gives tenants additional rights during foreclosure? 

How much of an impact will this new bill have on future purchase and sales on foreclosed homes? 

On June 10th, 2021, the NYS Senate joined the Assembly in passing a bill to make baseball the official sport of NY.

Governor Cuomo - it's time for a veto!

The New York Islanders are in the final four for the second year in a row. Let's make ice hockey our sport. 

Come on Governor, you can do it. 

1. The lease expressly provides that:
• the dwelling unit is registered as a seasonal use dwelling unit, indicating the local or county government agency with which it is registered;
• the occupancy is only for seasonal use and does not exceed 120 days or a shorter period provided by the lease; and
• the tenant has a primary residence to return to and such address must be expressly stated on the lease.
2. The dwelling unit is registered with the appropriate local government, county, or state registry as a seasonal use dwelling; and
3. The dwelling unit is not rented as a seasonal use dwelling unit for more than 120 days during each calendar year.

On June 10, 2021, the New York State Legislature passed Assembly Bill A350 / Senate Bill S5105C (“Bill”) which set forth exemptions for cooperative housing corporations (co-ops) in relation to their tenants who are unit owners, purchasers, or shareholders. Once signed by the Governor, the Bill takes effect immediately.

While unit owners, purchasers, or shareholders of co-op units are generally considered “tenants” under their respective proprietary leases or occupancy agreements, if the bill becomes law, co-ops will be exempted from the usual landlord-tenant requirements and prohibitions set forth below:

• Security Deposit or Advance (GOL §7-108): A co-op will be allowed to collect more than one month’s rent for a deposit or advance from tenants who are unit owners, purchasers, or shareholders of owner-occupied units;
• Notice of Non-Renewal or Notice of Rent Increase (RPL §226-c): A co-op is no longer required to provide the RPL §226-c Notice of Non-Renewal or Notice of Rent Increase to tenants who are unit owners or shareholders of the co-op;
• Application Fees (RPL §238-a): A co-op may demand any payment, fee, or charge necessary to compensate a managing agent and/or transfer agent for processing, reviewing, or accepting a tenant’s application where such tenant would become prospective unit owner or shareholder;
• Credit and Background Check Fees (RPL §238-a): A co-op may charge more than $20, but such fees should not exceed the actual cost;
• Monthly Maintenance Fees for Late Payments (RPL §238-a): A co-op may charge up to 8% of the monthly maintenance fee for the late payment of such fee if provided for in the proprietary lease or occupancy agreement;
• “Rent” in a Summary Proceeding (RPL §702): A co-op may demand more than the rent in a summary proceeding against a unit owner or shareholder provided that the proprietary lease or occupancy agreement allows for the recovery of other fees, charges, penalties or assessments in a summary proceeding;
•  5-Day Notice of Non-Payment (RPL §235-e(d)): A co-op may provide another method of sending notice by mail other than certified mail as long as it is set forth in the proprietary lease or occupancy agreement; and
• Attorneys’ Fees upon a Default Judgment (RPL §234(2)): A co-op may be awarded attorney’s fees in the event of default judgment against a unit owner or shareholder if the recovery of such fees are set forth in the proprietary lease or occupancy agreement.

Essentially, the Bill aims to correct the unintended effects of the Housing Stability and Tenant Protection Act of 2019 towards unit owners or shareholders of co-ops who are “tenants” only because of their proprietary leases or occupancy agreements.

Do you agree with the Legislature’s corrections? Is it too little, too late?

For pending litigation, it sure seems that this new law affirms that co-ops that previously breached the Housing Stability & Tenant Protection Act as applicable to tenants, are liable, no?

Those looking to apply for Cannabinoid Hemp Licensing in NYS to process, sell, or distribute cannabinoid hemp products may have to jump through several more hoops in the application process due to new proposed regulations.

If adopted, the regulations will require that licensing applications to manufacture cannabinoid hemp products in NYS be accompanied by: 

1. A summary and description of the products the applicant intends to make; 
2. Proof of liability insurance;
3. Evidence of good manufacturing practices; and 
4. Copies of organizational documents. 

Similarly, an application to sell cannabinoid hemp products will be required to be accompanied by: 

• A summary and description of the type of product intended for sale;
• The name and country of origin of the distributor; and 
• Verification that the applicant will not sell inhalable cannabinoid hemp products to consumers under 21.   

Additionally, even if an cannabinoid hemp processor application is approved, the applicant must still submit numerous items in order to receive a final license (e.g., copy of certificate of occupancy for facility, evidence of Good Manufacturing Practices Audit, and proof of product liability). 

Do you think these additional hurdles in the cannabinoid hemp licensing application process will scare away entrepreneurs from applying for a license?  

If you don't agree or think these proposed regulations are too onerous, you can make your voice heard until July 19, 2021 by emailing: regsqna@health.ny.gov - use I.D. No. HLT-45-20-00002-RP in your subject. 

Are you going to make your voice heard?

As a result of a recent United States Supreme Court decision, employers can no longer use the Computer Fraud and Abuse Act of 1986 ("CFAA") as a tool to prevent unauthorized use of its computer systems. 

The CFAA makes it illegal to "access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter."

In Van Buren v. United States, No. 19-783, the Supreme Court held that a police officer did not violate the CFAA when he ran an unauthorized license plate search in exchange for money. Relying on the language of the statute, the Court reasoned that the CFAA makes it illegal to access information an individual is not permitted to obtain, but does not prohibit improper use of information or databases which an individual has the authority to access. 

Justice Barrett used the following example to clarify the Court's holding: If an individual is authorized to access a specific folder on a computer, he/she does not violate the CFAA if he/she accesses the folder for an unauthorized purpose. However, if an individual accesses a separate folder on the computer to which he/she does not have authorized access, such conduct violates the CFAA.

In light of the Supreme Court's decision, employers should consider the following to protect against improper/unauthorized use of its computers/databases:

1) Strengthening policies regarding unauthorized use of computers/databases. While unauthorized use is no longer unlawful under the CFAA, employers are free to implement restrictive policies regarding unauthorized use of computers and discipline employees who violate the policies. 

2) Taking further steps (e.g. secure passwords) to safeguard documents/information to which employers do not want employees to access.

3) Entering into confidentiality/unauthorized use agreements with employees.

A law that passed the House in May and is before the Senate (The Comprehensive Debt Collection Improvement Act or “CDCIA”) could force lenders to slam the breaks on issuing mortgages to co-op purchasers.

This law reverses a 2019 decision from the US Supreme Court, Obduskey V. McCarthy, and would cause the Fair Debt Collection Practices Act (FDCPA) to apply to businesses engaged in non-judicial foreclosures, which applies to co-op mortgage loans.

In other words, the CDCIA would hamstring co-op lenders' ability to utilize third-parties to collect their loans (e.g., the law limits the number of times a debtor may be reached, it requires that contact be ceased when the debtor so requests, it creates tons of exposure to damages and attorneys' fees, etc.). It would also suppress important information from a credit report, such as forbidding credit scoring models from using medical debt as a negative factor.

As you can certainly deduce, if the CDCIA passes the Senate and is signed by the President, lenders will likely have stricter qualification terms and may even raise rates on co-op mortgage loans that qualify.

Are the protections in the CDCIA worth the law's chilling effect on co-op loans? Should the Senate change the law? Should it just vote it down?

Do you think the CDCIA will lead to fewer co-op transactions?

To provide further incentive for people to get vaccinated, The New York State Department of Labor recently issued guidance permitting employees to use paid sick leave to recover from side effects of the COVID-19 vaccine. The New York State legislature previously passed a law entitling employees to paid leave to receive vaccinations.

New York State law requires employers with five or more employees (or net income of more than $1 million dollars) to provide 40 hours of annual paid sick leave to its employees. New York Labor Law Sec. 196-b permits employees to use sick leave "for mental or physical illness, injury, or health condition, regardless of whether it had been diagnosed or requires medical care at the time of the request for leave." 

The DOL clarified that Section 196-b requires employers to "honor the employee's desire to use accrued sick leave for recovery of any side effects of the COVID-19 vaccination." 

According to today's White House Press Release, "President Biden issued a memorandum directing the U.S. Department of Housing and Urban Development (HUD) to address discrimination in our housing market." 

In doing so, the President has charged the Secretary of HUD to lead an "interagency initiative to address inequity in home appraisals" while citing to a study that found "homes in majority-Black neighborhoods are often valued at tens of thousands of dollars less than comparable homes in similar—but majority-White—communities."

Next week, HUD is publishing a new disparate impact discrimination rule in the federal register to address neutral housing policies that have a discriminatory impact on marginalized groups. 

Are you part of the problem or part of the solution? 

Governor Cuomo signed Bill 2681-B into law today, imposing extensive requirements on employers to mitigate exposure to "airborne infectious diseases" in the workplace. 

Establishing a Prevention Plan. The new law requires all employers to establish an airborne infectious disease exposure prevention plan by May 19, 2021. The plan must detail procedures for employee health screenings, regular cleaning and disinfecting of the workplace, personal protective equipment ("PPE"), accessible workplace hygiene stations and adequate break times to use the stations as well as other onerous requirements. The plan must be part of the employer's employee handbook and displayed in a prominent location in the workplace. While the law requires the Department of Health to prepare a model policy, there is no timetable for the arrival of the policy compelling employers to prepare their own policies prior to May 19, 2021. 

Forming Safety Committees. Employers must permit employees to form public safety committees and provide them with paid time to hold meetings and attend trainings. This provision of the law takes effect in 180 days.

Retaliation Prohibited. Retaliation is prohibited against employees exercising their rights under the new law. Notably, retaliation is prohibited against an employee who refuses to work based upon a reasonable belief that he/she is exposed to an unreasonable risk of contracting an airborne infectious disease in the workplace. 

Penalties. Employers may be penalized $50 a day for failure to adopt a prevention plan; $1,000 - $10,000 for failure to abide by the adopted plan; and $1,000 - $20,000 for a second violation within six (6) years. In addition, the law affords employees a private right of action to file a complaint in state court where he/she may be awarded damages including liquidated damages and reasonable attorneys fees.  

For more information on this new law, please listen to our podcast here. 

Do you think these requirements are reasonable for employers? Will this law cause more businesses to move out of New York State? 

Lieb at Law, P.C., is seeking an associate attorney to support the firms widely expanding litigation practice. Minimum of 2 years complex litigation experience required.

Desired qualifications:

• Drafting and analyzing pleadings, discovery, and motions;

• Resourcefulness in legal research;
• Must excel in a paperless office;
• Dedicated, organized and detail-oriented;
• Ability to leverage substance rather than emotion.

The firm’s practice areas include:

• Litigation: Employment Litigation, Discrimination Litigation, Commercial Litigation, Real Estate Litigation, Real Estate Brokerage Litigation, Title Litigation, Plaintiff Personal Injury, Landlord/Tenant, Estate Litigation and more.
• Employment Litigation, Compliance and Trainings: Discrimination, Harassment, Retaliation, Wage and Hour, Restrictive Covenants, Family Medical Leave Act, Alternative Dispute Resolution, Appeals; Employee Handbooks and Policies, Sexual Harassment and Discrimination Training, Wage and Hour Audits & more.
• Legal Compliance for Regulated Industries: Outside Compliance Counsel for regulated professions, Policy Drafting, Policy Implementation, Auditing, Corporate Compliance Trainings.
• Estate Planning and Probate: Last Wills, Advance Directives, Trusts, and Probate Administration.
• Transactions: Commercial and Residential Real Estate Purchase and Lease Transactions, Business Transactions and Negotiations.

Sharing Andrew Lieb's article published in the New York Law Journal. Landlord Liability for Tenant-on-Tenant Discrimination: Split in the Federal Circuits. For anyone who doesn't subscribe a text version will be available on the Lieb at Law website.

Landlord Liability for Tenant-on-Tenant Discrimination

We just got some guidance from the State as to a law that became effective March 2, 2021 about noticing tenants of their rights to reasonable modifications / accommodations under the Human Rights Law.  To learn about the law, read our blog from that date here. After the law was passed, it was than repealed and replaced. To learn about the repeal and replace, read our blog here. 

The repealed and replaced version of the law stated that "The Division of Human Rights shall promulgate regulations." 

Today, we learned about those proposed regulations, which will be set forth at 9 NYCRR 466.15 when effective. 

Some interesting highlights are:

• The notice shall be in 14 point font;
• The notice can be emailed; 
• The notice can (AND SHOULD) be included in a lease; &
• The notice "must be included with any posting, listing, advertisement, brochure, prospectus, rental application, proposed lease or other similar communication about an available housing accommodation."

The proposed regulation reads as follows:

466.15 Provision of notice by housing providers of tenants’ rights to reasonable modifications and accommodations for persons with disabilities. 

(a) Statutory Authority. Pursuant to N.Y. Executive Law section 295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the N.Y. Executive Law, article 15 (Human Rights Law) and pursuant to New York Executive Law section 170-d, the New York State Division of Human Rights “shall promulgate regulations requiring every housing provider …to provide notice to all tenants and prospective tenants … of their rights to request reasonable modifications and accommodations” as such rights are provided for in Human Rights Law sections 296.2-a(d) and section 296.18.

(b) Effective date. Executive Law section 170-d was effective March 2, 2021, pursuant to the Laws of 2021, chapter 82, section 4, by reference to the Laws of 2020, chapter 311. 

(c) Definitions. 

(1) “Housing provider” shall mean: 

(i) “the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee thereof” as set forth in New York Executive Law, article 15 (hereinafter “Human Rights Law”) section 296.5; or 

(ii) “the owner, lessee, sub-lessee, assignee, or managing agent of publicly-assisted housing accommodations or other person having the right of ownership or possession of or the right to rent or lease such accommodations” as set forth in Human Rights Law section 296.2-a. 

(2) “Housing accommodation” includes “any building, structure, or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings” as set forth in Human Rights Law section 292.10. 

(3) “Publicly-assisted housing accommodations” shall include: 

(i) “public housing” as set forth in Human Rights Law section 292.10(a); 

(ii) “housing operated by housing companies under the supervision of the commissioner of housing” as set forth in Human Rights Law section 292.10(b); or 

(iii) other publicly-assisted housing as described in Human Rights Law section 292.10(c), (d) and (e). 

(4) “Property Manager” as referenced in the sample notice is an individual housing provider, or such person as the housing provider designates for the purpose of receiving requests for reasonable accommodation. 

(5) “Reasonable modifications or accommodations” shall refer to those actions required by Human Rights Law section 296.2-a(d) and Human Rights Law section 296.18, which makes it an unlawful discriminatory practice for a housing provider or publicly-assisted housing provider: 

(i) To refuse to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by the said person, if the modifications may be necessary to afford the said person full enjoyment of the premises, in conformity with the provisions of the New York state uniform fire prevention and building code, except that, in the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter’s agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

(ii) To refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling, including the use of an animal as a reasonable accommodation to alleviate symptoms or effects of a disability, and including reasonable modification to common use portions of the dwelling, or

(iii) In connection with the design and construction of covered multi-family dwellings for first occupancy after March thirteenth, nineteen hundred ninety-one, a failure to design and construct dwellings in accordance with the accessibility requirements of the New York state uniform fire prevention and building code, to provide that:

(a) The public use and common use portions of the dwellings are readily accessible to and usable by disabled persons with disabilities;

(b) All the doors are designed in accordance with the New York state uniform fire prevention and building code to allow passage into and within all premises and are sufficiently wide to allow passage by persons in wheelchairs; and

(c) All premises within covered multi-family dwelling units contain an accessible route into and through the dwelling; light switches, electrical outlets, thermostats, and other environmental controls are in accessible locations; there are reinforcements in the bathroom walls to allow later installation of grab bars; and there are usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space, in conformity with the New York state uniform fire prevention and building code.

(d) Actions required by Executive Law section 170-d. 

(1) Housing providers must provide notice, as provided for in this regulation, to all tenants and prospective tenants: 

(i) within 30 days after the effective date of their tenancy; 

(ii) for current tenants, within thirty days after the effective date of Executive Law section 170-d;

(iii) for prospective tenants, see below (d)(5) regarding how to provide notice for available housing accommodations.

(2) The notice is to advise individuals of their right to request reasonable modifications and accommodations for disability pursuant to Human Rights Law section 296.2-a(d) (publicly-assisted housing) or Human Rights Law section 296.18 (private housing).

(3) Such notice shall be in writing, shall be in 14 point or other easily legible font.

(4) New and current tenants. Such notice must be provided individually to all new and current tenants, and shall be provided in the following manner: 

(i) by electronic transmission (e.g. email) if electronic transmission is available and can be directed to the individual to be notified, or

(ii) by providing a paper notice to the individual, if electronic transmission is not available, and

(iii) may be accomplished by including the notice in or with other written communications, such as a lease or other written materials routinely provided to tenants.

(iv) “Posting” of the notice, either on paper on a bulletin board, or on an electronic bulletin board or notice area, or by providing a link to such posting, shall not be sufficient notice.

(5) Notice with regard to available housing accommodations.

(i) Such notice must be included with any posting, listing, advertisement, brochure, prospectus, rental application, proposed lease or other similar communication about an available housing accommodation.

(ii) Where such communication is by electronic means other than email, the notice may be included by providing a link to a page containing the notice language. The link must be clearly identified as linking to the “Notice disclosing tenants’ rights to reasonable accommodations for persons with disabilities.” The notice must be available for printing and downloading.

(iii) Where such communication is in paper form, the notice must be included within such communication, or by providing the notice in an accompanying document.

(iv) Where such communication is sent by email, such email shall include the notice, either in the body of the email or in an attachment.

(e) Content of the required notice. The following shall be deemed sufficient notice when provided to the individual to be notified.

NOTICE DISCLOSING TENANTS’ RIGHTS TO REASONABLE ACCOMMODATIONS FOR PERSONS WITH DISABILITIES

Reasonable Accommodations

The New York State Human Rights Law requires housing providers to make reasonable accommodations or modifications to a building or living space to meet the needs of people with disabilities. 

For example, if you have a physical, mental, or medical impairment, you can ask your housing provider to make the common areas of your building accessible, or to change certain policies to meet your needs.

To request a reasonable accommodation, you should contact your property manager by calling ——— or ———, or by e-mailing ———. You will need to show your housing provider that you have a disability or health problem that interferes with your use of housing, and that your request for accommodation may be necessary to provide you equal access and opportunity to use and enjoy your housing or the amenities and services normally offered by your housing provider. If you believe that you have been denied a reasonable accommodation for your disability, or that you were denied housing or retaliated against because you requested a reasonable accommodation, you can file a complaint with the New York State Division of Human Rights as described at the end of this notice. 

Specifically, if you have a physical, mental, or medical impairment, you can request:*

Permission to change the interior of your housing unit to make it accessible (however, you are required to pay for these modifications, and in the case of a rental your housing provider may require that you restore the unit to its original condition when you move out); 

Changes to your housing provider’s rules, policies, practices, or services;

Changes to common areas of the building so you have an equal opportunity to use the building. The New York State Human Rights Law requires housing providers to pay for reasonable modifications to common use areas.

Examples of reasonable modifications and accommodations that may be requested under the New York State Human Rights Law include:

If you have a mobility impairment, your housing provider may be required to provide you with a ramp or other reasonable means to permit you to enter and exit the building.

If your doctor provides documentation that having an animal will assist with your disability, you should be permitted to have the animal in your home despite a “no pet” rule.

If you need grab bars in your bathroom, you can request permission to install them at your own expense. If your housing was built for first occupancy after March 13, 1991 and the walls need to be reinforced for grab bars, your housing provider must pay for that to be done.

If you have an impairment that requires a parking space close to your unit, you can request your housing provider to provide you with that parking space, or place you at the top of a waiting list if no adjacent spot is available.

If you have a visual impairment and require printed notices in an alternative format such as large print font, or need notices to be made available to you electronically, you can request that accommodation from your landlord.

Required Accessibility Standards

All buildings constructed for use after March 13, 1991, are required to meet the following standards:

Public and common areas must be readily accessible to and usable by persons with disabilities;

All doors must be sufficiently wide to allow passage by persons in wheelchairs; and

All multi-family buildings must contain accessible passageways, fixtures, outlets, thermostats, bathrooms, and kitchens.

If you believe that your building does not meet the required accessibility standards, you can file a complaint with the New York State Division of Human Rights.

How to File a Complaint

A complaint must be filed with the Division within one year of the alleged discriminatory act. You can find more information on your rights, and on the procedures for filing a complaint, by going to www.dhr.ny.gov, or by calling 1-888-392-3644 with questions about your rights. You can obtain a complaint form on the website, or one can be e-mailed or mailed to you. You can also call or e-mail a Division regional office. The regional offices are listed on the website.

* This Notice provides information about your rights under the New York State Human Rights Law, which applies to persons residing anywhere in New York State. Local laws may provide protections in addition to those described in this Notice, but local laws cannot decrease your protections.

You have until June 13, 2021 to comment on these proposed regulations by emailing: caroline.downey@dhr.ny.gov

Can a landlord's agent charge a tenant its commission?

That issue is going to be decided by the New York County Supreme Court in the case of McLendon v. Kelley after the court refused to dismiss the case, but the case should already be dismissed under the Court's own reasoning.

The law that the tenant is relying on in this case to block the fee charge is called The Housing Stability and Tenant Protection Act (HSTPA) and specifically, Real Property Law 238-a(1)(a), which states as follows:

Except in instances where statutes or regulations provide for a payment, fee or charge, no landlord, lessor, sub-lessor or grantor may demand any payment, fee, or charge for the processing, review or acceptance of an application, or demand any other payment, fee or charge before or at the beginning of the tenancy, except background checks and credit checks as provided by paragraph (b) of this subdivision, provided that this subdivision shall not apply to entrance fees charged by continuing care retirement communities licensed pursuant to article forty-six or forty-six-A of the public health law, assisted living providers licensed pursuant to article forty-six-B of the public health law, adult care facilities licensed pursuant to article seven of the social services law, senior residential communities that have submitted an offering plan to the attorney general, or not-for-profit independent retirement communities that offer personal emergency response, housekeeping, transportation and meals to their residents.

In refusing to dismiss the case on this law, the Court focused on the Department of State's Guidance on the topic wherein the Department had opined "that a broker for the landlord could not collect a broker fee from a perspective tenant pursuant to the above provision." However, the Court's reasoning is in error and the broker should bring a motion to reargue / renew this application for dismissal.

Operatively, the Department of State's Guidance was withdrawn on February 10, 2020 and therefore it holds no weight in this case. To substantiate this withdrawal of Guidance, see the notation at question 5. on page 4 of this hyperlink.

More importantly, in Real Estate Bd. of New York v. New York State Department of State, the Judge issued a full injunction preventing the statute from being utilized against brokers until the Court issues a decision on REBNY's Order to Show Cause, which has not yet occurred. 

This case should therefore be dismissed.

To further encourage mass vaccination, the Governor signed Senate Bill S2588A into law, which requires employers to provide employees with a "sufficient period of time", but not more than four (4) hours, of paid leave to receive each COVID-19 vaccine injection. The law is effective immediately and expires on December 31, 2022.

Employers must pay employees at their regular rate of pay for all hours of vaccination leave and may not require employees to first use other entitled leave (e.g. NYS Paid Sick Leave, NYC Paid Sick and Safe Leave, Employer sick leave policy). 

The law is noticeably silent on what if any verification an employer can request from an employee to prove they received the vaccine during the leave and how much notice an employee needs to provide prior to using such leave. The Department of Labor has yet to issue guidance on these issues.

How much notice before taking leave do you think should be required?

Should employees be required to submit verification to employers that they actually used the leave to get vaccinated?

On March 11, 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:

• 5 hearings that have been held by the DOS and 10 others that scheduled as a result of the Newsday Long Island Divided expose;
• Brokerages compliance with the Executive Orders about essential workers and safety in light of COVID;
• Communication with Complainants and Respondents about outcomes of Administrative cases; 
• Current real estate licensee numbers for February 2020 and February 2021 were provided in a report;
• 27 Schools have submitted course applications for the 2.5 hours of business ethics topic (Lieb School is one of these schools);
• 23 Schools have submitted course applications for the 1 hour of recent legal matters topic (Lieb School is one of these schools);
• 2020 Exam Results:
• Salesperson = 17,643 applicants with a pass rate of 59%
• Broker = 1,464 applicants with a pass rate of 65%
• Executive Order Updates:
• Extension of the Licenses continued through March 28, 2021
• Electronic Notarization of Documents continued through March 28, 2021

• The Act applies to summary proceedings or any other judicial or administrative proceeding to recover possession of a commercial unit, including evictions and ejectment actions.
• The Act only applies to a commercial tenant who:
• is a resident of New York State;
• is independently owned and operated;
• is not dominant in its field; and
• employs fifty or fewer persons.

• The Act requires the Court or the landlord (depending on the status of the eviction proceeding) to provide the tenant with the Hardship Declaration in English and in the language of the lease / tenancy agreement.
• The tenant should complete the Hardship Declaration if the tenant is suffering a financial hardship and is unable to pay rent or other financial obligations or obtain alternative suitable commercial property because of:
• significant loss of revenue;
• significant increase in necessary expenses related to providing protective equipment to prevent transmission of COVID-19; or
• moving expenses and difficulty securing alternative commercial property.

• If there is no pending proceeding and a tenant provides a Hardship Declaration to the landlord, the landlord is prohibited from commencing any proceeding until May 1, 2021.
• If the tenant does not provide a Hardship Declaration, the landlord is required to file and serve the following to commence an action:
• affidavit of service of the Hardship Declaration in English and the language of the commercial lease / tenancy agreement;
• affidavit of service of predicate notices required by law and the lease;
• affidavit of the landlord / landlord’s agent attesting to the following:
• Landlord / his agent did not receive a Hardship Declaration from the Tenant; or
• The tenant returned the Hardship Declaration but the tenant is “persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others, with a specific description of the behavior alleged.”
• If the Court determines that the landlord failed to provide the Hardship Declaration to the tenant, the Court shall stay the proceedings for at least 10 business days to allow the tenant to complete the Hardship Declaration.

• Refers to proceedings commenced on or before March 7, 2020 and commenced within 30 days of March 10, 2021.
• Stayed for at least 60 days, or to such later date the Court deems necessary to provide tenants time to complete and submit the hardship declaration.
• Court shall issue stay and mail copy of the Hardship Declaration to the tenant.
• If the tenant provides a completed Hardship Declaration to the Court or landlord, the matter is stayed until May 1, 2021.

• In any proceeding in which an eviction warrant has already been issued, execution is stayed until the court holds a status conference with the parties.
• If the tenant provides a Hardship Declaration, the execution of the warrant is stayed until May 1, 2021.
• For the sheriff to execute the warrant of eviction, it must now state:
• The tenant has not submitted a Hardship Declaration and the tenant was properly served with a copy of the Hardship Declaration, listing dates of service by the petitioner and the court; or
• The tenant is ineligible for a stay under this act because the court determined that the tenant is persistently and unreasonably engaging in behavior that infringes on the use and enjoyment of other tenants/occupants or causes a safety hazard to others with a specific description of the behavior.

• The Act applies to owners or mortgagors of commercial properties who:
• owns 10 or fewer commercial units (directly or indirectly; units may be in more than 1 property or building as long as total units are occupied or available for rent);
• is a business that is a resident in New York State;
• is independently owned and operated;
• is not dominant in its field; and
• employs 50 or fewer persons.
• The Act does not apply to mortgage loans backed by a state corporate governmental agency.

• The Act requires the Court or the foreclosing party (depending on the status of the foreclosure proceeding) to provide the borrower with a statement of protections available under the Act in 14-point type (“Hardship Declaration”).
• More importantly, the borrower must complete the Hardship Declaration and provide it to the foreclosing party to be afforded relief under the Act, if the borrower is suffering a financial hardship including, but not limited to:
• a significant loss of revenue;
• a significant increase in necessary expenses related to providing protective equipment to prevent transmission of COVID-19;
• moving expenses and difficulty securing alternative property; or
• a commercial tenants’ default on a significant amount of rent since March 1, 2020,
• The borrower’s submission of the Hardship Declaration is a rebuttable presumption of a financial hardship for purposes of establishing a defense.

• If the borrower provides a Hardship Declaration to the foreclosing party/foreclosing party’s agent, the foreclosing party is prohibited from commencing any foreclosure proceeding until May 1, 2021.
• If the borrower does not provide a hardship affidavit, the lender is required to file the following to commence a foreclosure proceeding:
• affidavit of service of the Hardship Declaration in; and
• affidavit of the foreclosing party / foreclosing party’s agent attesting that the foreclosing party or his agent did not receive a Hardship Declaration from the Borrower.
• If the Court determines that the foreclosing party failed to provide the Hardship Declaration to the borrower, the court shall stay the foreclosure for at least 10 days to allow the borrower to complete the Hardship Declaration.

• Refers to proceedings commenced before March 7, 2020 or commenced within 30 days of March 10, 2021.
• Stayed for at least 60 days to May 9, 2021, or to such later date the Court deems necessary to provide borrower time to complete and submit the hardship declaration.
• Court shall issue stay and mail copy of the Hardship Declaration to the borrower.
• If the borrower provides a completed Hardship Declaration to the court or lender, the foreclosure proceedings are stayed until May 1, 2021.

Post-Judgment

• In any foreclosure proceeding in which a judgment of sale has already been issued, execution is stayed until the court holds a status conference with the parties.
• If the borrower provides a Hardship Declaration, the execution of the warrant is stayed until May 1, 2021.

President Biden just established a Council to coordinate the Federal Government's efforts to advance gender equity and equality. 

In plain English, this counsel's mission is to combat sex discrimination by providing legislative and policy recommendations by September 24, 2021.

Stay tuned. Equality is happening now. 

Are you ready?

Andrew Lieb advises why and what you should consider when you are negotiating a quaranty on your next commercial lease.

The article was published by the Long Island Business News. HERE is a direct link to download the PDF.