Evictions Resume, But New Eviction Rules Stay Residential Evictions Until October 1, 2020

On August 12, 2020, Judge Lawrence K. Marks published a memorandum and an Administrative Order on the filing and prosecution of residential and commercial evictions in New York State. Landlords and property managers should take note of the following, effective August 13, 2020:

1.      Evictions commenced prior to March 17, 2020 may continue but it is subject to the following rules:

a.   Proceedings continue to be governed by the suspension of filing deadlines as per Executive Order 202.8 as extended to September 4, 2020 by Executive Order 202.55. This means that the deadline to file an Answer to the Landlord-Tenant Petition or appear, among others, is suspended until September 4, 2020.

b.   Commercial Matters:

• Commencement and enforcement against tenants facing financial hardship due to the COVID-19 pandemic is stayed until August 19, 2020 pursuant to Executive Order 202.28.
• Commercial eviction matters may otherwise proceed in the normal course, subject to the tolling of statutory deadlines by Executive Order 202.8, as extended by Executive Order 202.55, as explained above.

c.   Residential Matters:

• For all eviction matters commenced prior to March 17, 2020, including those with a warrant of eviction that has been issued but not yet executed, courts must hold a status or settlement conference to address a range of subjects related to the case and COVID-19 concerns.
• After such conference, the court may take whatever steps it deems appropriate, such as deciding pending motions, entertaining new applications, or allowing the matter to move forward in its normal course.
• No residential eviction may take place prior to October 1, 2020 or such later date or dates set by law.

2.      Evictions commenced on or after March 17, 2020 are suspended, regardless of whether it is commercial, residential, nonpayment, or a holdover. They may be commenced but will remain suspended until further order of the court. Nonetheless, eviction matters in which all parties are represented by counsel shall be eligible for virtual settlement conferences.

3.      Filing and service in eviction proceedings requires represented parties to commence new matters electronically through NYSCEF, if available, and by mail if not. Unrepresented parties may file papers in person. See AO/121/20. 

4.      Eviction proceedings should be conducted remotely whenever appropriate.

5.      Commencement papers in commercial and residential evictions proceedings must continue to include the form notice indicating that respondent-tenants may be eligible for an extension of time to respond to the complaint. You can find the notice HERE. 

6.      New York City eviction matters shall be governed by AO/160/20 and DRP 213. 

7.      Administrative Order AO/127/20 is superseded and is no longer in effect. Thus, the form affidavit / affirmation from the landlord / landlord’s counsel regarding the tenant’s COVID-19 hardship is no longer required, among others.

HIV Patients Have Right to Cosmetic Surgery

The Federal Courts, in the Southern District of New York, awarded $125,000 to each individual who was denied cosmetic surgery due to their HIV-Positive status in interesting discrimination case. 

The case was brought under Title III of the Americans with Disabilities Act of 1990 (ADA) and the New York City Human Rights Law.

The penalty was based upon the HIV-Positive individuals' traumatic experiences, resulting in significant feelings of humiliation, shock, and worthlessness, as well as anxiety, stress, sleeplessness, and feelings of stigma and humiliation.

Again, $125,000 was awarded to each victim of discrimination who experienced emotional distress.

What do you think the award should have been?

1. Nothing
2. $20,000
3. $125,000
4. $1,000,000

New Law Alert - Emotional Support / Service Animal Anti-Discrimination Rights Codified

On August 11, 2020, NYS passed a law that clarifies "that reasonable accommodation to enable a person with a disability to use and enjoy a dwelling includes the use of an animal to alleviate the symptoms or effects of a disability."

This codification exists at Executive Law 296(2-a)(d)(2) and (18)(2) and explicitly states that refusing "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."

This new law is effective immediately.

If you'd like to learn more about service animals, therapy animals, emotional support animals, comfort animals and discrimination lawsuits, read my article in the American Bar Association's Section of Litigation - The Intersection of Pet Policies and Anti-Discrimination Laws in Real Estate. 

Don’t Fire Your Employee for Taking Opioids so Fast – Lawsuit Alert

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance explaining exposure to a discrimination lawsuit for employers who fire their staff for taking opioids.

To avoid being sued, employers must take the following steps upon discovering that an employee is taking opioids:

1. Determine if the opioid use is legal or illegal.

• The ADA allows employers to terminate employees, or take other measures, based on the illegal use of opioids. However, legal or prescriptive opioid use cannot be a ground for automatic disqualification and employers must consider a way for the employee to do the job “safely and effectively” 
• Employees who test positive to a drug test must also be given an opportunity to provide information about their legal drug use that may cause a drug result to show opioid use. The employer can ask the employee before the test is done if he/she is taking any such medication or the employer can ask all employees who test positive for an explanation. Such should be established by protocol and implemented consistently. 

2. Provide Reasonable Accommodations.

• Employees who legally use opioids must be given a reasonable accommodation before getting fired or not considered for a position. This also applies to employees who have a history of opioid, or treatment for opioid addiction, which an employer thinks can interfere with safe and effective job performance.
• Employees may also request a reasonable accommodation from taking prescription opioids to treat pain or from having other medical conditions related to opioid addiction as long as the condition is a disability under the ADA.
• It is the employees’ responsibility to request a reasonable accommodation and employers cannot legally fire or refuse to hire or promote an employee for making the request. A request protocol should be established and applied consistently.
• Employers must provide the reasonable accommodation if it does not involve significant difficulty or expense.

3. If an employee cannot do the job safely and effectively even after being provided with a reasonable accommodation, document objective evidence that the employee poses a significant risk of substantial harm. An employee cannot be removed for remote or speculative risks.

4. It is recommended that employers engage in an interactive process, as required in NYC, prior to making any final determinations. Failing to sue interact can be, in itself, the basis of exposure. To understand further, see our blog, 5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate.

You can access EEOC’s guidance HERE and HERE.

Electronic Notarization Extended until September 4, 2020

On August 5, 2020, Governor Cuomo signed Executive Order 202.55, as amended by Executive Order 202.55.1, which extends previous executive orders related to the coronavirus pandemic. Remote notarization is extended to September 4, 2020. Notary Publics are reminded of the rules stated in Executive Order 202.7 which we wrote about HERE.