Legal Analysts
A new NYS law is about to make it much harder for a nonprofit to consolidate, merge, or dissolve.
Previously, only a simple majority vote was required, but effective 10/31/2021, S3265 will require a two-thirds vote.
Clearly, this new legislation will make it much harder for not-for-profit corporations to consolidate, merge, or dissolve.
Do you agree that nonprofits should have to go through a bigger hurdle to dissolve?
Check out Maura McDermott's Newsday article, Ruling: Suffolk complex broke law spurning Section 8 housing vouchers.
If you still don't understand that housing discrimination happens or if you are confused about the long term impacts of discrimination, you need to watch this great explanation of housing discrimination on HBO by John Oliver - it's a must watch for anyone who doesn't understand that housing discrimination from yesterday impacts lives today.
Alternatively, here is The Lieb Cast tackling the same issue on our podcast back on January 31, 2021.
Who does the topic better; Lieb or Oliver?
Shouldn't John have Lieb on his show?
What do you think?
The Town of Brookhaven has issued new requirements for its Board of Zoning Appeals members (Town Code at Chapter 85).
Now, members of the ZBA must:
The FTC has finalized a new "Made in USA" rule, which sets forth that labels may not contain unqualified "Made in USA" claims unless:
Landlords are about to be capped on key reproduction fees in NYS.
You may be saying whoopdeedoo, but it's not that simple.
The cap is 110% of the actual cost of reproduction. However, the cap doesn't apply for the 4th time the tenant needs the keys in a calendar year.
The real question is what happened the second and third time the tenant needed a new key. Why are they constantly losing their keys? Do you lose your house keys FOUR times in a year?
Here is a question - does this new key reproduction cap also cap the shipping and handling of the new keys? Think about it. Now a landlord needs to stop their day, drive to a local hardware shop, wait about 20 minutes for the line and the key to be made, drive back to their office, and deliver the key for virtually fifty cents. This is nuts.
Maybe the legislature should realize that landlords never wanted to make money on key reproduction in the first place. Instead, they charged a lot to motivate their tenants to STOP LOSING KEYS.
Read the new law, section 235-i of the Real Property Law, here.
Governor Cuomo should not to sign this stupid law.
If he does, lawyers need to draft leases with shipping and handling fees for keys, but it's unclear if such fees will be upheld in court when the litigation ensues on the topic.
Do you think landlords should be able to charge fees for shipping and handling of key reproduction?
The US Department of Transportation is proposing a rule that requires airlines to refund checked baggage fees if they don't deliver the bag in a timely manner.
That's a start for sure... How about requiring them to pay for all the items that you had to purchase while you didn't have your stuff on your trip???
Make your voice heard - comment on this proposed rule by filing out this form until 9/20/2021.
As of July 16, 2021, discrimination victims need not have their discrimination complaints notarized before filing them with the NYS Division of Human Rights, per a change to Executive Law 297(1).
This applies to both victims of employment discrimination and housing discrimination.
According to the laws justification, the notarization requirement "discourage[d] people from filing complaints" and the Division nonetheless received over 6,000 complaints annually.
How many complaints will the Division receive now?
Do you think that this new law makes sense?
Does it matter if a document is notarized?
Shouldn't preventing discrimination be as easy as pie?
On July 16, 2021, new Executive Law 170-e was signed into law and requires that all administrators of housing assistance (governmental / nonprofits) ensure that "individuals who have applied for and are eligible to receive such assistance, payment, subsidy or credit are informed, in writing, of their rights and remedies available under law, with regard to lawful source of income discrimination.”
The law is effective as of September 14, 2021 and that is an important deadline for landlords, brokers, and property managers to get up to speed on the rules to avoid source of income discrimination in their ranks.
To illustrate, a housing provider who requests a credit score from a voucher recipient could be discrimination, a housing provider who demands a minimum income from a voucher recipient could be discrimination, and a housing provider who makes receipt of a voucher a precondition to seeing units could be discriminating.
Do you have policies in place to avoid your team discriminating and subjecting you to a major lawsuit??
More so, those policies better include the forthcoming regulations that the State Division of Human Rights is going to promulgate to particularize this new law.
Are you ready?
Ever see a landlord renting the second unit in their two-family residence who posted a sign in the window stating "whites only," or what about a landlord asking a prospective tenant for their religious affiliation with the intention of refusing to rent to persons of a particular creed?
Effective July 16, 2021, that is illegal in the State of New York.
Previously there was an exemption to anti-discrimination laws that permitted this despicable behavior when a landlord was renting an owner-occupied two-family unit, known as Mrs. Murphy Law.
Now, under Executive Law 296, all property in this state is subject to the same law for discriminatory advertising - it is unlawful to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application, or to make any record or inquiry which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color, national origin, sexual orientation, military status, sex, age, disability, marital status, or familial status, or any intent to make any such limitation, specification or discrimination.
Are you happy that New York State is increasing accessibility and equality for all; or, do you miss the good old days when you could be a miserable bigot?
A new NYS law extends partial real property tax abatement for co-ops and condos within a city containing a population of one million or more, through the NYC fiscal year that begins in 2022.
Technically, the law amends paragraphs (a) and (b) of Real Property Tax Law 467-a (2).
Previously, the Real Property Tax Law authorized partial tax abatement for these co-ops and condos from the fiscal year commencing in 2012 through 2020. The new law now provides a 2-year extension.
Although the COVID-19 pandemic appears to be in our rear-view mirrors, many families continue to endure hardships caused by the brutal pandemic. As a result, Governor Como continues to pass legislation related to tax abatement and/or exemptions for certain dwellings (e.g., S.6487).
How long will legislation extending tax abatement and/or exemptions for certain dwellings continue to be passed?
Time will tell...
Private industries may NOT assume control over federally assisted housing stock in NY, as has happened in CT, which was just made clear by a new law.
Instead, Section 8 housing contracts will continue to be administered by The New York State Housing Trust Fund Corporation ("Corporation") and Division of Housing and Community Renewal ("DHCR") in NY.
Section 8 of the US Housing Act is designed so landlords can rent housing at fair market rates to low income tenants, in which the federal government will pay a portion of the rent to a landlord through a Section 8 Housing Choice Voucher.
Private industry would want to take over Section 8 because of the tremendous amount of money flowing from the federal government and the availability to bring efficiencies that would create tremendous profit and innovation.
However, NY will continue to have its federally assisted housing stock controlled by the state and local governments.
Is state / local government better suited than private industry to manage our federally assisted housing stock? Isn't private industry more innovative and efficient? Or, is it that private industry only makes elites rich? Is this the type of thing that is the better domain of government or private industry?
Regardless, developers and landlords now have predictability into the future when they get involved in subsidized housing. Predictability is always a good thing in business.
Lieb at Law, P.C. is proud to announce that Steven Siliato, Esq. has been elevated to partner at the firm. Mr. Siliato manages the firm’s real estate transactional practice and focuses on corporate transactions, residential, and commercial real estate law.
A new NYS law amends Real Property Tax Law section 489, extending
tax exemptions for multiple dwellings undergoing alterations and improvements to eliminate fire and health hazards, from 2021 to 2022.
A multiple dwelling means a "dwelling that is either rented, leased, let or hired out, to be occupied, or is occupied as the residence or home of 3 or more families living independently of each other." (Multiple Dwelling Law Section §4 (7)).
Fire and health hazards that qualify for the exemptions include non-fireproof stairs, windows, elevator shafts, dumbwaiters, fire-escapes, as well as a lack of direct entrance to the cellar or lowest story of a multiple dwelling.
If you own / manage a multiple dwelling and haven't started a project yet, you better act now before it's too late.
The New York State Department of Labor has finally issued the long awaited Model Airborne Infectious Disease Exposure Prevention Plan.
As a refresher, on May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act ("NY HERO Act") into law requiring employers to take various measures to protect employees in the event of a future airborne infectious disease outbreak.
One of those measures was to adopt a prevention plan. Now that the NYSDOL released the model plan, employers have until August 5, 2021 to either customize and adopt the model plan or create their own plan which, at a minimum, meets the requirements of the model plan.
While employers must immediately adopt a plan, it is important to note that, per the NYSDOL website, the plan is not currently required to be in effect until the New York State Commissioner of Health designates an infectious disease as a "highly contagious communicable disease that presents a serious risk of harm to the public health."
A proposed amendment relating to license requirements for land surveyors seeks to uphold the Land Surveyor's Education Bill (which previously amended section 7206-a of the Education Law, by updating certain education experience requirements for licensure as a land surveyor to fall in-line with the national standards).
The proposed amendment seeks to further update the education and experience requirements for a land surveyor license by the following methods:
Many more disability lawsuits are anticipated after the 2nd Circuit ruled that temporary injuries qualify as disabilities under ADA.
An injury that only lasts 19 days can constitute a qualifying disability for purposes of a failure-to-accommodate claim under the Americans with Disabilities Act, according the Second Circuit Court of Appeals in Hamilton v. Westchester Cnty.
For background, disabled individuals have a legal right to demand a reasonable accommodation from rules, policies, and procedures so that they can have equal access to public services, enjoyment of property, and opportunities at work.
When disabled individuals are denied rightfully requested accommodations, lawsuits happen for big $$.
When disabled individuals aren't provided with a forum to negotiate an accommodation, known as the interactive process, lawsuits happen for big $$.
When disabled individuals aren't even provided with an opportunity to request an accommodation in the first place (such as by a form or notice), lawsuits happen for big $$.
Simply, disability discrimination law is a really big deal, with big numbers at stake, to employers and property owners / managers. In fact, 26% of US adults have some sort of disability according to the CDC. As a result, every employer and property owner / manager must understand this new change in the law.
Before this case, it was unclear in the Second Circuit, which controls NY, CT, & VT, whether an individual with a short-term disability from an injury could qualify for an accommodation under the law.
Now, we know that they qualify.
While the case before the Circuit Court was about an inmate at the Westchester County Jail, who claimed a denial of an opportunity to participate in or benefit from services, programs, or activities, under Title II of the ADA, the takeaway is that temporary disabilities can trigger the protections of the ADA under all three of its Titles, including:
It is clear that the Circuit Court intended all three Titles to apply to temporary disabilities because it expressly based its decision on the 2008 ADA Amendments Act, which broadened the definition of "disability" under the ADA to include temporary or Transitory injuries. In so reasoning, the Circuit Court pointed to 28 CFR 25.108(d)(ix) (i.e., the regulations to the ADA) to find that a "'disability' shorter than six months in duration now can be actionable under the ADA."
Now, all employers, property owners, brokers, property managers, and governmental officials in NY, CT, & VT better adjust their policies and afford rights to those disabled from injuries (even really short-term injuries) or they are going to get sued?
Have you ever been denied your rights to have policies adjusted to enable you to have the full enjoyment of life, which was otherwise problematic because of your disability?
Shouldn't disabled people be given every benefit to fully enjoy life?
This is good law.
The Town of Southampton has issued a new compliance protocol (Town Code at Chapter 262) for Foreclosure Plaintiffs in response to an increase in crime and deterioration in property appearance.
The new law sets forth a Registration Scheme with new maintenance obligations:
Penalties & Fines include:
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.
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:
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:
Similarly, an application to sell cannabinoid hemp products will be required to be accompanied by:
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?
