• Robin Glasco, Healthcare Strategist / Consultant for Walmart and Board Member of the American Telehealth Association
• Dr. Ketan Badani, Professor of Urology and Vice Chairman of Robotic Operations at Mount Sinai Health System
• Andrew Starr, Chief Health Operations Officer of Tallahassee Memorial Healthcare

On May 28, 2020, Governor Cuomo signed Executive Order 202.34, which authorized business operators and building owners to exercise their own discretion in denying entry to individuals who fail to comply with Executive Order 202.17 requiring face-coverings when in a public place.

Specifically, EO 202.34 allows business operators and building owners to use their discretion in denying entry and requiring or compelling removal of persons not wearing a face-covering, unless they are under the age of two or are not able to medically tolerate it as per EO 202.17. More importantly, EO 202.34 exempts such business operators and building owners from a claim of violation of the covenant of quiet enjoyment or frustration of purpose. However, the directive must still adhere to the Americans with Disabilities Act or any provision of either New York State or New York City Human Rights Law, or any other provision of law.

While businesses and building owners can now restrict entry, they should contact counsel to create a policy that ensures compliance with the anti-discrimination laws and mitigate exposure to discrimination claims.

A COVID-19 property tax relief bill is on its way to Governor Cuomo's desk for signature. The bill, S8138B, empowers local taxing jurisdictions to defer property taxes for up to 120 days from their original due date. Alternatively, the taxing jurisdiction can create a payment plan with similar time restrictions. This special legislation will automatically expire with the State Disaster Emergency Declaration.

• Seg 1: Restaurant Innovation Driving the Industry of Tomorrow

• Seg 2: Alcohol To-Go Lobbying Discussed with CEO of New York State Restaurant Association

• Seg 3: Stories of How Restaurants are Changing to Thrive

• Seg 4: How Innovative Hamptons Restaurants Pivot to Awesome

On May 18, 2020 the New York State Court System resumed limited in-person operations in upstate counties. Today Chief Judge Janet DiFiore announced that in-person operations will expand to Dutchess, Orange, Putnam, Rockland and Westchester Counties on May 27, Ulster and Sullivan Counties on May 28, and Nassau and Suffolk County on May 29. 

2. The default or other event which caused the natural person to become personally liable for such obligation occurred between March 7, 2020 and September 30, 2020, inclusive.

1. Whether there is a contractual relationship;
2. Whether a change in law impairs that contractual relationship; and
3. Whether the impairment is substantial. U.S.C.A. Const. Art. 1, § 10, cl. 1; American Economy Ins. Co. v. State, 30 N.Y.3d 136 (2017).

Beginning May 25, 2020, litigants will finally be able to commence new actions. The acceptance of electronic filing for new non-essential matters represents the clearing of the the penultimate hurdle for the court system's remote operations. In effect, trials and hearings are the only civil court operations still on hold. Judge Marks May 20, 2020 memorandum can be found, HERE. 

The Equal Employment Opportunity Commission ("EEOC") issued a press release today announcing that it entered into a consent decree with FedEx Ground to settle a disability discrimination lawsuit brought pursuant to the Americans with Disabilities Act ("ADA"). The federal lawsuit was filed on behalf of deaf and hard-of-hearing package handlers and applicants to those positions alleging that FedEx Ground denied deaf and hard-of-hearing package handlers reasonable accommodations and denied applicants employment because of their hearing related disabilities.

The consent decree entitles the 229 aggrieved individuals to a share of the $3.3 million settlement. In addition, the settlement requires FedEx Ground to provide accommodations to deaf and hard-of-hearing package handlers including access to live and video remote sign language interpreting, closed captioning on videos and provision of non-audible cues (i.e. vibration) on scanning equipment. Finally, the consent decree requires that FedEx Ground institute safety measures to protect hearing compromised package handlers including ensuring that motorized equipment include visual warning lights and providing personal notification devices that will notify hearing compromised handlers of an emergency.

This settlement should serve as a reminder to employers to ensure that procedures are in place for employees to request a reasonable accommodation and that accomodation requests are granted to the extent that they are reasonable and can assist employees in performing the essential functions of their positions.

It's time to make lemonade out of those lemons and fill up your half cup of coffee! We have the technology to run businesses remotely and Coronavirus is the motivation for everyone to use it. This means the future will involve a drastic decline in daily office commuting with a corresponding uptick in new real estate investment opportunities. Trendsetters and HGTV Stars Tom and Mickey join us to explore New York's exurban areas that are poised to explode. Plus we break down when to invest and teach you how to time the market before 2021.

The Suffolk County Legislature recently passed a "Ban the Box" law which will prohibit all employers in Suffolk County with 15 or more employees from inquiring as to a candidate's criminal conviction history during the application process. 

An employer cannot consider an applicant's criminal conviction history until after an application has been submitted and the initial interview has been conducted. An employer may only deny employment based on an applicant's criminal conviction history after conducting an individualized inquiry and concluding that the criminal conviction "bears a direct relationship to the duties and responsibilities of the position sought, or that hiring would pose an unreasonable risk to the property or to the safety of individuals or the general public."

The law specifically exempts the Suffolk County Police Department, the Suffolk County Department of Fire, Rescue and Emergency Services, public or private schools and any public or private provider of care or supervision for children, young adults, or physically or mentally disabled individuals. 

An aggrieved individual may file a claim with the Suffolk County Human Rights Commission or file a civil lawsuit. Employers in Suffolk County should immediately adjust their hiring practices and policies to avoid substantial liability.

The law is effective as of August 25, 2020.

Nassau County Supreme Court Justice Jeffrey Brown struck down Nassau County’s $355 fee to verify a property’s section, block and lot due to it being unlawful and unconstitutional.

In Falk v. Nassau County, the Plaintiff alleged that Nassau County excessive fees for tax map certification letters (TMCLs) as issued pursuant to Nassau County Administrative Code § 6-33.0. These TMCLs are issued by the Nassau County Department of Assessments and must be filed with real property documents when submitted to the Nassau County Clerk for recording. Plaintiff alleged that the fees are excessive and not reasonably necessary to maintain the County’s real property registry and such fees are taxes as their purpose really is for general revenue. In this regard, the Plaintiff sought a declaratory judgment deeming Administrative Code § 6-33.0 unconstitutional because it is excessive and an unlawful tax.

Among other reasons, the court granted the Plaintiff’s motion for summary judgment and found the TMCL fees unconstitutional as it was established that its purpose was for general revenue purposes only and that the fee itself is “indisputably disproportionate to the cost associated with its issuance.” Further, the Court found that they are excessive and not tied to the County’s responsibility in maintaining its property registry nor were such fees assessed or estimated on the basis of studies or statistics.

Nassau County is expected to file an appeal to Judge Brown’s decision. Stay tuned.

Specifically, in Schuhab HDFC v. Delacruz (Case Number: 64402/17), the court held that the tenant’s post-traumatic stress disorder (PTSD) from domestic violence should entitle her to a probationary order as reasonable accommodation. Under the Fair Housing Act, a landlord is required to provide a handicapped tenant with a reasonable accommodation for the tenant to keep the apartment (42 U.S.C.3605(f(3)(B)). In this case, such reasonable accommodation was in the form of a probationary stay – instead of the tenant getting evicted right away, she was allowed to stay subject to several conditions to prevent any adverse effect to other tenants and guests.

As background, the case was commenced as a holdover landlord-tenant eviction proceeding by Schuab HDFC against the tenant on the grounds that the tenant used or permitted the premises to be used for the distribution and/or sale of controlled substances. The tenant’s defense was that she neither knew of or acquiesced to the illegal activity. She also requested the court grant her a reasonable accommodation in the form of a probationary stay in the premises as a result of her disability from being a victim of domestic violence.

The Court’s decision narrates and incudes the instances of domestic violence that the tenant suffered from her former partner, the resulting PTSD, and the circumstances which led to her partner’s use of the premises for drug activity as testified by the tenant. While considering the tenant’s testimony and her psychiatrist’s input, the Court agreed in finding that the tenant suffers from PTSD and such disability should entitle her to a probationary stay under the Fair Housing Act.

Consequently, the Court granted the landlord a final judgment of possession against the tenant and other occupants, but also granted the probationary stay in the tenant’s favor as a reasonable accommodation under the FHA. The tenant is required to exclude her former partner from the premises, avoid and preclude others from participating in drug-related activity in the premises for a period of two (2) years. In the event of a breach, Petitioner may move for the issuance of a judgment of possession and warrant of eviction.

Real estate professionals should be aware of this decision in order to ensure compliance with the Fair Housing Act and limit exposure to claims of discrimination for refusing to provide reasonable accommodations.

The Coronavirus Aid, Relief, Economic and Security (CARES) Act allows borrowers to request a forbearance on their mortgage. (You can read more about the CARES Act and mortgage forbearance requests in our article HERE.) As bankruptcy filings are expected to rise due to the COVID-19 pandemic, the U.S. Bankruptcy Court system implemented a few system changes to their Case Management/Electronic Case Filing (CM/ECF) Database in relation to borrowers who have requested a forbearance. These changes are effective May 11, 2020.

Specifically, a new bankruptcy event, “Notice of Mortgage Forbearance” was created to docket such event on the CM/ECF database. In addition to clicking such event, a question was also added to ask, “is a Notice of Mortgage Forbearance being filed with this filing?” in relation to established events on Notice of Mortgage Change. This change has been made to prevent filers from choosing the “Notice of Mortgage Change” event when only a forbearance has been obtained.

As the Court works towards streamlining and implementing a more efficient process, readers are advised to contact their counsel to ensure that the Court’s bankruptcy process and its recent changes be followed to a T to prevent any delays or other issues with filings.

In Episode 42, Andrew and Lauren breakdown the cost/benefit analysis of whether you deserve a mortgage modification. We discuss foreclosure lawsuits, mortgage terms and what motivates a modification from your lenders perspective.

On May 7, 2020, Governor Cuomo signed Executive Order 202.28 which tackled major changes to landlord-tenant matters in light of the COVID-19 pandemic, including an extension to the eviction moratorium, the usage of security deposits towards rent, and the prohibition on charging late fees.

1. Eviction and Foreclosure Moratorium Extended to August 20, 2020 for Tenants Who Are Unable to Pay Rent or Mortgage Payments due to COVID-19.
On March 7, 2020, Executive Order 202.8 previously ordered an eviction moratorium from March 7 to June 20, 2020. Executive Order 202.28 extends that moratorium to August 20, 2020. Specifically, no proceedings or enforcement may be initiated for residential or commercial tenants on the basis of nonpayment of rent due to the COVID-19 pandemic.

Similarly, foreclosure proceedings of any residential or commercial mortgage for nonpayment of such mortgage due to COVID-19 is also prohibited until August 20, 2020.

It is important to note that unlike the Executive Order  202.8 which ordered a moratorium on ALL evictions and foreclosures until June 20, 2020, the extension of the eviction and foreclosure moratorium to August 20, 2020 under Executive Order 202.28 only applies to residential or commercial tenants who are unable to pay their rent and are eligible for unemployment insurance or benefits under state or federal law, or otherwise facing financial hardship due to COVID-19. Thus, eviction proceedings based on breach of material terms under the lease other than nonpayment may start beginning June 20, 2020.

2. Residential Landlords May Apply Security Deposit towards Rent upon Written Agreement.

In addition to the extension of the eviction moratorium, residential landlords, with the tenant’s consent, are now allowed to apply the security deposit and any interest accrued to pay rent in arrears or rent that will become due through a written agreement. If the security deposit is less than one month’s rent, the consent does not constitute the landlord’s waiver for the remaining rent. Executive Order 202.28 expressly allows execution of this written agreement by email. Landlords and tenants should contact counsel prior to making any agreements to ensure that their interests are protected.

Any security deposit used as payment of rent must be replenished by the tenant at the rate of 1/12 the amount used as rent per month and such payments begin 90 days from when the security deposit was used as rent. Alternatively, tenants may retain insurance that provides relief for the landlord in lieu of monthly security deposit replenishment. However, like the extension, the above relief in relation to security deposits only applies to tenants eligible for unemployment insurance or benefits or are otherwise facing financial hardship due to COVID-19.

3. Late Charges for Residential Tenants Prohibited for Periods beginning March 20, 2020 to August 20, 2020.

Executive Order 202.28 also prohibits landlords from demanding or being entitled to any payment, fee, or charge, for late payment of rent pursuant to RPL 238-a occurring from March 20, 2020 to August 20, 2020. This provision only applies to residential properties but take note that it is not limited to tenants who were unable rent to pay due to COVID-19.

Governor Cuomo has signed a new executive order extending many of the previous actions taken in his previous orders. Included among these extensions is the tolling of statute of limitations until June 6, 2020. This is necessary, of course, because litigants are still prohibited from filing new non-essential actions. Litigators should be aware that this does not toll all deadlines in pending and ongoing actions. Notices of appeal, motion deadlines, time to answer and appear, and discovery deadlines are all up and running with the courts' expanded remote operations. Additionally, statute of limitations on federal claims are not affected as federal courts remain fully operational. A copy of the executive order, No. 202.28, can be found HERE. 

Stay tuned to our blog for big changes to the current commercial and residential eviction moratorium. 

Motion practice is back.

This afternoon Chief Administrative Judge Lawrence K. Marks released a memorandum detailing the expansion of virtual court operations. The most important change is the expansion of motion practice. Starting Monday, May 4, 2020, parties may file new motions and responsive papers to previously filed motions in all pending cases. Previously, motions were only permitted in emergency and/or essential matters.

For a summary of what has been operational up until this memorandum, see or previous blogs HERE and HERE.

Courts will continue to conduct virtual conferences on matters the court believe can be resolved, and judges are encouraged to refer cases to virtual alternative dispute resolution (ADR) centers.

This is yet another step closer to full virtual court operations, and it is a big one. Opening up motion practice means litigators can operate at 90% capacity if they make full use of virtual depositions and other electronic tools. The next step needed is permission to file new matters. A full copy of the April 30, 2020 memorandum can be found HERE.

Major NEW Fair Housing Regulations are effective June 20, 2020 according to the NYS Board of Real estate meeting that was held on April 27, 2020.

On April 17, 2020, Governor Cuomo signed Senate Bill S7186, which relates to allowing restaurant-brewers to sell up to 250 barrels of product without a wholesaler, but what does the new law really mean for breweries?

Historically, breweries which sold beer on-premises were limited to making and selling only 250 barrels. To incentivize breweries to invest in their own product, the NYS Legislature increased the limit to 2,000 barrels through Senate Bill S5427. However, they inadvertently removed the language allowing a brewery to sell limited quantities without the use of a wholesaler or a person licensed to sell any beverage for purposes of resale.

Through Senate Bill S7186, Section 64-c of the ABC law was recently amended to clarify that breweries are allowed to sell 2000 barrels per year and up to 250 of those barrels may be sold on-premises without any additional licenses. Any number of barrels over 250, however, must be sold and distributed to other retailers through a wholesaler.

Thus, the new brewery law clarifies that breweries are allowed to sell limited quantities of their product in their own premises and they are also allowed to sell and distribute the rest of their product into other bars, restaurants, and retailers through a wholesaler, and thus allowing them to invest in and grow their businesses.

On April 23, 2020, the U.S. Small Business Administration issued new guidance on the Paycheck Protection Program under the CARES Act, specifically concerning the SBA’s position on good faith certifications and limiting PPP funding to public companies.

All applicants and recipients of PPP funds should pay close attention to Question 31 of the SBA Guidance: 

Business owners looking to their commercial policies for business interruption and loss of income coverage due to COVID-19 have likely run into a giant roadblock - an exclusion of loss due to virus or bacteria. Many insurers added these special endorsements to commercial policies after the SARS outbreak in the early 2000s, and yours probably looks something like this:

Governor Cuomo has signed Executive Order 202.18 which extends deadlines for condominium offering plans, offering breathing room to developers. The deadlines for the following requirements have been tolled:

• Requirement of filing an offering statement or prospective within 15 months of date of issue of the letter from the attorney general stating that the offering statement or prospectus has been accepted for filing is tolled until May 16, 2020 (see Section 352-eeee(2)(a) of the General Business Law);

• Filing fees required at the time of submission and filing of each offering statement or prospectus also suspended until May 16, 2020 but payment must still be made to the department of law by August 14, 2020 (see Section 352-e(7)(a) of the General Business Law);

• Requirement of Sponsor’s preparation of a budget for the first year of condominium operation is tolled until May 16, 2020. However, the Sponsor must update the first year of operation, as necessary, within 30 days from expiration of Executive Order. The Sponsor shall not be required to offer rescission, to the extent the first year’s budget for operation does not increase by 25% or more during the pendency of the state of disaster emergency (see 13 NYCRR §§ 18.3(g)(1), 20.3(h)(1), 23.3(h)(1)); and

• Rule requiring a sponsor to offer rescission if the first closing of a unit does not occur within first year of operation is tolled until May 16, 2020, but the sponsor must update the first year of operation, as necessary, by June 15, 2020 (see 13 NYCRR § 20.3(o)(12)).

On April 12, employers were ordered to provide their staff with face coverings.

The Executive Order 202.16 provides:

For all essential businesses or entities, any employees who are present in the workplace shall be provided and shall wear face coverings when in direct contact with customers or members of the public. Businesses must provide, at their expense, such face coverings for their employees. This provision may be enforced by local governments or local law enforcement as if it were an order pursuant to section 12 or 12-b of the Public Health Law.  This requirement shall be effective Wednesday, April 15 at 8 p.m.

Employers must get their face coverings now!!!

Interestingly, the order does not require a specific type of face covering so it's conceivable that even a homemade option would satisfy the requirement. However, try to get N95 masks if you can - safety first. 

Do you need Medicaid and can’t wait for a 5-year lookback to qualify?

Then, consider Spousal Refusal, which with the Reverse Rule of Halves, represent 2 options to avoid the 5-year lookback requirements.

Spousal Refusal means that assets are transferred from the Medicaid applicant to such applicant’s spouse (the community spouse or the spouse not receiving Medicaid). Luckily, these transfers of assets to a spouse are exempt from the five-year look back period and thus, don’t trigger a penalty period.

Under Medicaid law, the community spouse can sign a Spousal Refusal which states that the community spouse refuses to make their income and resources available to the Medicaid applicant. This can be done especially when the community spouse may have assets over Medicaid’s allowable recourse limit or in excess of the income allowance.

In New York, Social Services Law §366(3)(a) provides that if the community spouse refuses or fails to provide the applicant with the necessary care and assistance, the medical assistance furnished to the applicant creates an implied contract with the community spouse. The cost of the medical assistance then may be recovered from the community spouse. However, this takes a lawsuit, which is often settled for far less than what was transferred, if the lawsuit is pursued in the first instance. Also, if repayment is pursued, the repayment rate is only based on the Medicaid reimbursement rate, which is significantly less than the private pay rate so there is very little to lose for a spouse to claim Spousal Refusal when they cannot plan in advance of the 5-year lookback.

Regardless, those needing Medicaid often have unique circumstances and everyone should get tailored legal advice on any strategy they seek to pursue before effectuating such strategy.

Medicaid provides a penalty period for the transfer of assets for less than its fair market value within 5-years of an individual’s application for Medicaid. The penalty is calculated by taking the amount of the transfer and dividing it by the average cost of one month of nursing home care in the region where the applicant resides.

A strategy used to maximize an applicant’s excess assets is the Reverse Rule of Halves. Essentially, this strategy allows the applicant to retain at least half of his excess assets and to become eligible for Medicaid sooner. When using this strategy, the Medicaid applicant gives 100% of their excess assets to a family member or multiple members. As this transfer may be a violation of Medicaid’s look back rule, a penalty period of Medicaid ineligibility will result. The family member, however, can return half of the gifted assets in installments back to the Medicaid applicant through a promissory note, so that the penalty period is also cut in half. The applicant, then, can use the returned assets to pay for care during the penalty period.

To utilize this strategy, the assets must be accessible either through a competent individual’s signature, joint ownership, or a Durable Power of Attorney. The return of assets will need to be done through a Deficit Reduction Act (DRA) compliant promissory note. To determine the value of assets that can be preserved with this strategy, the following factors are considered: 

As expected, Chief Administrative Judge Lawrence K. Marks has issued a new administrative order detailing the first stage of court operations for nonessential matters. A full copy of the order can be read HERE.

On March 9, 2020, Executive Order 202.6 mandated non-essential businesses to reduce their in-person workforce by 50% and later, by 100%. Today, the Empire State Development (ESD) issued guidance on Executive Order 202.6 to further determine which businesses are considered essential.

What does the ESD Guidance mean for real estate professionals?

Through Executive Order 202.14 and effective from April 7, 2020 to May 7, 2020, the act of witnessing as required in signing a will, healthcare proxy, disposition of remains, recording of instruments regarding real property, power of attorney and living trusts may now be done through audio-video technology.

To do so, the following requirements must be satisfied:

• The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;
• The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
• The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
• The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
• The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

Similarly, video notarization has been permitted since March 19, 2020 through Executive Order 202.7, which we blogged about HERE.

This is one major step closer to remote real estate closings and estate planning.

Now, the NYS legislature needs to make this permanent and not let Coronavirus innovation be a wasted opportunity.