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. 

If you know that your tenant is engaging in illegal activity at your property, you better do something about it. That's the message from the Federal Appellate Courts in Omega SA v. 375 Canal, LLC. 

In the case, a jury awarded $1.1 MM against a landlord for contributory trademark infringement for its willful blindness in identifying potential trademark infringing vendors at its premises where a counterfeit Omega watch was sold. According to the Court, liability follows if the landlord "or its agents had reason to suspect that trademark infringing merchandise was being offered or sold but deliberately failed to investigate or looked the other way to avoid seeing such activity." 

To prevail, a plaintiff does NOT need to prove that the landlord "continued to lease space to a specific, identified vendor that it knew or should have known was selling counterfeit [] goods." Instead, the plaintiff only needs to prove that a landlord had "reason to suspect" it's tenant counterfeiting goods "but deliberately failed to investigate or looked the other way to avoid seeing such activity." That is not to say that a landlord has an affirmative duty to police trademarks on its premises, just that it can't ignore them either. 

Landlords - 

Do you have video surveillance at your property? 

Do you have security guards? 

Do you accept complaints about your tenants from their customers?

What do you do to protect yourself from criminal tenants leasing space from you? 

Andrew Lieb, Esq will be instructing a ZOOM CLE for Attorneys on April 13, 2021 through the Suffolk County Bar Association. 

MCLE Credit: 2 Diversity

Location: Zoom

Program Description: The Fair Housing Act prohibits discrimination because of race, color, national origin, religion, sex, familial status, and handicap (disability). Plus, NYS has even stricter laws that prohibit discrimination in housing.

Did you know, starting on June 20, 2020, all real estate brokers are required to give all transacting parties a Discrimination Disclosure Form detailing their rights and available relief?

This course will uncover and discuss:

• Housing Discrimination 101
• Relevant Laws
• Elements of a Claim/Defense of a Claim
• Damages
• Statutory Penalties
• Top 10 Do’s and Don’ts

Generally, homeowners are exempt from liability for construction-related injuries that happen in their home. 

However, homeowners become liable if they direct or control the method and manner of work. 

What does that rule mean to you?

The Appellate Courts, in O'Mara v. Ranalli, just taught us that it is a jury question where there is evidence that the homeowner did the following acts:

• Supplied the ladders used by the contractors;
• Being on site and giving direction nearly every day; and 
• Deciding not to permit the installation of stairs from the basement to the first floor in the face of the contractor insisting that it was needed for safer and easier access to the first floor.

The NYS Department of Labor is being required by a new law to establish an online database by April 22, 2021 to make available all information and data regarding all workplace fatalities in the construction industry.

Originally, this law stupidly applied to employees rather than workers and contractors, which is the standard for workers in the industry. Now, this has been fixed by new law. 

If you are a GC (general contractor) and you don't think that the ambulance chasers have already planned to favorite this website, you have another thing coming. It's time to button-up those safety protocols, meetings, and compliance checks. 

What are you doing to protect yourself from suit?

There has been a long standing dispute in the courts as to whether a family member can be evicted in an eviction proceeding (a/k/a, summary proceeding) or whether a protracted case was required in Supreme Court (a/k/a, ejectment proceeding). 

A summary proceeding is considered to be a "simple, expeditious and inexpensive means of regaining possession" of your property. Yes, it can take many months and thousands of dollars, but in contrast to an ejectment proceeding, that is fast and cheap. You can expect an ejectment proceeding to take years and to spend tens of thousands of dollars.

As you can see, whether a family member can be evicted in a traditional eviction proceeding is a big issue that can change the cost / benefit analysis of proceeding with the eviction proceeding in the first place. 

The answer to this long standing dispute was just provided by the appellate courts in Aloni v. Oliver when the courts ruled that a family member or romantic partner can be evicted just like everyone else in a traditional summary proceeding. 

The only exception to this general rule is that you cannot evict your spouse in a summary proceeding and must resort to an ejectment proceeding, unless there is an existing court decree to the contrary.

Are you ready to evict your family members who are taking advantage of you? 

Attention Contractors: If you help your client violate the uniform fire prevention and building code and that violation empedes a person's egress from such building during an emergency evacuation (think fire), then, you can be fined up to $7,500 under new law. 

This law applies to contractors, architects, subcontractors, construction superintendents, and agents.

Is this fair? Should a contractor have to tell their client no when the client wants something that violates the building code? Are contractors now code enforcement agents?

The headlines are in - the federal foreclosure / eviction moratoriums are extended to June 30, 2021 from March. This extension applies to 70% of single family home mortgages.

The subtext is that we have a foreclosure / eviction crisis on the horizon. According to the White House "1 in 5 renters is behind on rent and just over 10 million homeowners are behind on mortgage payments." 

If you just use a little deduction, you will quickly realize that almost every block across America is going to see foreclosures and evictions. In the micro, this will result in firesales, which will reduce comparable home prices across the board. In the macro, it will decrease property upkeep and maintenance, which will create a secondary impact on the greater community's desirability and pricing. 

That's the bad. 

The good is that it's going to be a buyer's market soon.

We need to start thinking about strategies to Purchase Property Post-Pandemic. 

What's your strategy? 

Traditionally, boards are protected from suit under what is called the Business Judgment Rule, which means that actions that are undertaken in good faith and in furtherance of the community, no matter how foolish, can not give rise to board liability. The only real exceptions to this rule are for acts of self-dealing or discrimination. 

However, poorly drafted By-Laws can change that standard and expose boards to liability. 

This was just highlighted in the recent Appellate Division case of Matter of Kotler v 979 Corp.

In the case there was a dispute about the assignment of a cooperative's proprietary lease on the lessee's death. The Court found that the by-laws supplanted the Business Judgment Rule with a heightened Reasonableness standard when the document stated "consent shall not be unreasonably withheld to any assignment or transfer of this lease."

Then, the board lost the case and was told to pay damages and attorneys' fees. 

Attention boards, managing agents (property managers), and board counsel - don't just copy another board's by-laws - think for yourself.

Here is the scenario - You are trying to sell a property and you order a payoff from your mortgage company, but that payoff quote comes in much higher than you believe that it should. 

You are in a real bind. 

You need to sell, but you don't want to overpay. What should you do?

This is particularly problematic where you are in default on your mortgage and the lender has started tacking on exorbitant penalties and attorneys' fees.

The answer is that you better protest the payoff, in writing, while requesting an itemization and then, you should pay it anyway. 

If you do, you can then file a motion for an accounting and ask the court to compute the appropriate fees, charges, expenses, and other payments due under the mortgage. 

If you don't, your motion to the court for an accounting will probably be denied in light of the voluntary payment doctrine, equitable estoppel, and waiver bar the accounting.

Again, protest and pay is the strategy based upon the appellate court decision in US Bank v. Cordero. 

Are you selling a house in foreclosure? If so, pay attention. 

Typically, when a construction worker gets injured on the job from an elevated fall, it's a slam dunk case against the GC. 

In fact, Labor Law § 240(1) imposes strict or absolute liability on general contractors, owners, and their agents regardless if the injured worker is partially at fault for falls at construction sites. 

The only real defense for the GC is that the injured worker was the sole proximate cause of the accident (called the, "recalcitrant worker" defense). But, how do you prove sole cause when everyone claims different facts? 

We just learned the answer in an appellate division case, Cordova v 653 Eleventh Ave. LLC.

The case was dismissed because "Surveillance footage of plaintiff falling from the ladder demonstrates that" it was solely the injured worker's fault. The ladder didn't move or shake, it was connected to the sidewalk bridge and scaffolding above and tied to the scaffold too. 

Moving forward, GCs should video your construction sites. It can save you a fortune. 

The NYC Council enacted two bills which effectively ended "at will" employment for employees in the New York City fast food industry. Mordy Yankovich, Esq. shares the updates to the law in the February issue of the Law Journal, The Suffolk Lawyer.

Click HERE for the link to the article.

The Southern District of New York reminded purchasers of real estate in Coppelson v. Serhant that real estate agents are, in fact, trying to sell real estate so they can earn a commission and will make statements to buyers intended to accomplish that goal. 

The plaintiffs, purchasers of an investment property in Manhattan, complained that Ryan Serhant misrepresented that the property would be worth over $5M in a short period of time and that that it was priced 20% lower than comparable properties. The court, in dismissing the case, reminded buyers that they can, and must, perform their own due diligence because sellers of real estate will always talk up how great their property is and because "few sellers will state that the property is priced at an unfavorable level and that it will decrease in value or has no real investment potential." This conclusion is obvious - brokers will engage in puffery to sell real estate and earn a commission, and the courts won't protect your naivete. Whether that is good for business or good for building relationships of trust is another question for another day. 

Another important takeaway from this case is the reminder that a broker's failure to follow the requirements of RPL §443 (e.g. improperly filling out an agency disclosure form) is not the basis for a lawsuit. This is something I encounter nearly every day - buyers discovering something unpleasant about their property after they close and then suing the broker for not telling them about it and for not disclosing that they represented the seller too ("the broker didn't tell me about the oil leak in the basement because they wanted their commission!"). Often there is not actually a dual agency relationship because it is perfectly fine for a broker to only represent the seller with the buyer remaining unrepresented, but many buyers believe the listing broker they met at the open house or showing represents their interests too (hence the intended purpose of the RPL §443 agency disclosure requirement). Regardless, the sole remedy for agency disclosure violations is regulatory action by the Department of State, not a lawsuit.

All of this begs the question, is the current state of regulatory enforcement sufficient to protect consumers from what they perceive as wrongful salesmanship and flat-out incorrect agency disclosures? If not, what would you change?