New Eviction Law Extends Residential Eviction Moratorium to May 1, 2021

On December 28, 2020, Governor Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“Act”). Essentially, the Act provides tenants with an opportunity to submit a Hardship Declaration, which stays most evictions until May 1, 2021. The second part of the Act which provides for mortgage foreclosure relief is discussed in a separate blog HERE.

The Details:

• Essentially, once a tenant provides a Hardship Declaration, the eviction is stayed until May 1, 2020.
• The Act applies to residential nonpayment AND holdover eviction proceedings.
• The Act does not apply to tenants of seasonal rentals with a primary residence to return to and tenants who infringe on other tenants' use and enjoyment of the premises or pose a substantial safety hazard to others, but only upon the landlord proving same.
• To qualify, a tenant must provide the Hardship Declaration and must declare that they are suffering a financial hardship, such as:
• Significant loss of income
• Increase in necessary out-of-pocket expenses due to COVID-19
• Childcare responsibilities or care for the elderly, disabled, or sick family member
• Moving expenses and difficult relocating
• Other circumstances negatively affecting the ability to find meaningful employment
• Vacating the premises and moving into new permanent housing poses a significant health risk
• Sample hardship declarations will be available on the Office of Court Administration website.
• New Eviction Proceedings - upon a Tenant's submission to the landlord of the Hardship Declaration, the landlord is prohibited from commencing any eviction proceeding until May 1, 2021. The landlord can commence an eviction proceeding if the landlord files the following:

• Affidavit of service of the Hardship Declaration in English and tenant’s primary language.
• Affidavit of Service of predicate notices pursuant to RPAPL and the lease; and 
• Affidavit of the Petitioner/Petitioner’s agent attesting to the following:
• Petitioner or his agent did not receive a Hardship Declaration from the Tenant 
• The tenant returned the Hardship Declaration but the tenant is “persistently and unreasonably engaging in behavior that substantially infringes on the use & 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, the court shall stay the eviction for at least 10 days for the tenant to complete the declaration. 
• Pending Eviction Proceedings - proceedings commenced before 12/28/20 and commenced within 30 days of 12/28/20 are stayed for at least 60 days, or to such later date set by the Court. If the tenant submits the Hardship Declaration, the eviction proceedings are stayed until May 1, 2021. 
• Post Warrant of Eviction - in any eviction 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.

What is most important to both tenants and landlords is that while the law stops most evictions in NYS until May 1, 2021, it does not affect the tenants' obligation to pay rent. No payments are canceled. 

Unfortunately, despite the law's intentions, it is still lacking. Inevitably, tenants will continue to incur insurmountable debt and small landlords will eventually find themselves in the middle of the looming foreclosure tsunami. 

What do you think?

No NYS Residential Foreclosures Until May – New Law

On 12/28/2020, the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 became law. 

This law effectively stops all residential foreclosures in NYS until May 1, 2021, but it does nothing about the borrower's obligation to repay their loan.  

 

Do you think that makes sense?

Isn’t that just delaying the inevitable foreclosure crisis?

Shouldn't something be done about the loan too? 

 

Here is how the law works – a homeowner needs to submit a hardship declaration to their lender and magic, no more foreclosure until May.

 

The Details:

o   Either the court or lender (depending on foreclosure status) must provide the borrower with a statement explaining the law.

o   To qualify, a borrower must be suffering a financial hardship including, such as

§  A significant loss of household income;

§  Increase in necessary expenses;

§  Childcare responsibilities;

§  Moving expenses; and/or

§  Other circumstances negatively affecting the borrower’s ability to find meaningful employment.

o   Sample hardship declarations will be available on the Office of Court Administration website.

o   New Foreclosures – If the borrower does not provide the declaration, the lender is required to file all sorts of documents to commence a foreclosure proceeding, including:

§  Affidavit of Service of the Hardship Declaration in English and in the borrower’s primary language.

§  Affidavit of Service of RPAPL 1303 and 1304 notices; and

§  Affidavit of the Petitioner/Petitioner’s agent attesting that the Petitioner or his agent did not receive a Hardship Declaration from the Borrower.

o   Existing Foreclosures – Paused (stayed) for at least 60 days to provide the borrower time to complete and submit the hardship declaration.

o   This also stops foreclosure sales if the case already was decided by the court in a judgment.

 

Make no mistake, this new law does NOT excuse borrowers from paying the mortgage. 

So, what is the point? 

Isn’t it misleading borrowers into digging an even bigger financial hole?

What do you think? 

NYC Council Eliminates "At Will" Employment for the Fast Food Industry

The New York City Council recently passed two (2) bills which, once enacted, will end "at will" employment (employees can be fired for any reason with or without cause) for employees in the NYC fast food industry. Rather, employers in the fast food industry may only lawfully terminate employees for "Just Cause" or for "Bona Fide Economic Reasons" as explained below:

1)  "Just Cause": New York City Council Bill,  Int. No. 1415-A  prohibits fast food industry employers in NYC from terminating an employee's employment, who has been employed longer than thirty (30) days, or reduce their weekly hours by more than 15% without "Just Cause" which is defined as: "failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the fast food employer’s legitimate business interests." 

Factors used to determine whether an employee was terminated for Just Cause include: whether the employee violated the employer's policy, the employee's knowledge of the applicable rule/policy, training provided to the employee, whether an adequate investigation was conducted and whether progressive discipline was reasonably applied. Notably, absent egregious conduct by the employee, a termination will not considered to be for Just Cause unless the employer has a pre-established written policy on progressive discipline and can demonstrate that it is reasonable and was properly applied with respect to the terminated employee (employers may not rely upon discipline issued more than a year before the termination). Employers must provide the employee, within five (5) days of termination, with a written explanation of all the reasons for termination of employment.

2) "Bona Fide Economic Reasons": New York City Council Bill, Int. No. 1396-A permits fast food industry employers to terminate an employee or reduce their weekly hours by more than 15% for "Bona Fide Economic Reasons" which is defined as "the full or partial closing of operations or technological or organizational changes to the business in response to the reduction in volume of production, sales or profit." An employer's decision to terminate an employee based on Bona Fide Economic Reasons must be supported by the employer's business records. If the employer does possess a Bona Fide Economic Reason for terminating employees, employees must be terminated "in reverse order of seniority." In addition, an employer may not hire a new employee or increase a current employee's hours unless the employer first makes a reasonable effort to reinstate any employees terminated for economic reasons within the prior twelve (12) month period. 

Aggrieved employees may bring a civil action for discharges in violation of these bills or, after January 1, 2022, may bring an arbitration proceeding. Employers bare the burden of proving that the termination was for Just Cause or for Bona Fide Economic Reasons. If the employer fails to meet its burden, the employee may be reinstated, awarded backpay, reasonable attorneys fees and punitive damages. The employer may also be assessed civil penalties. 

It is imperative that fast food industry employers consult with counsel and create/modify applicable polices to ensure they are in compliance with these new bills prior to the effective date (180 days after enacted). 

Employment Sexual Harassment - Case of Interest - Exceeding Petty Slights or Trivial Inconveniences

Back on October 11, 2019, the NYS Human Rights Law was modified with a new standard for actionable employment sex discrimination. The new standard was intended to align NYS more closely with the NYC Human Rights Law. 

The new standard is that conduct that exceeds "petty slights or trivial inconveniences" is actionable. 

As to what that means, the NYC law was interpreted by the Second Circuit Court of Appeals (Federal Court) in Mihalik v. Credit Agricole Cheuvreux North America, Inc., which is the leading case. 

Now, we have a leading case interpreting the NYS law as well by a State Court. 

On December 15, 2020, the NYS Appellate Division decided Franco v Hyatt Corp. and found the following allegations to constitute conduct that exceeds petty slights or trivial inconveniences:

1. Supervisor made repeated sexual advances towards him, including reaching out to touch his face and holding his hand in an elevator while they were alone.
2. Supervisor also initiated conversations that made him uncomfortable, telling him she had a "crush" on him, telling him she was single and twice inviting him to her home to repair "a hole" in her apartment. 
3. Supervisor said she had a tattoo, adding that "You have to undress me to see it." 
4. After victim rebuffed advances, supervisor brought him to the Human Resources manager's office to complain about his work product and that she solicited complaints about him from other coworkers.

Interestingly, this case involved a female harasser of a male subordinate. 

When we train the NYS / NYC Mandatory Sexual Harassment Prevention Course to companies around the country, at sexualharassmenttrainingny.com, we always get push back to the concept that sexual harassment can be female on male. This case is a good reminder that everyone is protected from harassment at work. 

 

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Town Insists "Whites-Only" church isn't illegal - Or is it? We discuss new legislation that can either get you sued or drive your success.

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