NYS Department of State adopted a rule amending 19 NYCRR 1219 and adding 19 NYCRR 1229 to require newly constructed buildings and buildings undergoing a substantial renovation to include diaper changing stations if buildings have publicly accessible toilets.

Effective January 1, 2019, such buildings must meet requirements which include having at least one diaper changing station accessible to any gender available on each floor level with a public restroom. The new rules also address requirements as to accessibility, construction, installation, maintenance and signage of the diaper changing tables.

Failure to comply may result in criminal sanctions pursuant to Executive Law §382(2).

For more details, read the full text of the 19 NYCRR 1219 and 19 NYCRR 1229.

On January 15, 2019, the Appellate Division, First Department, reversed the Supreme Court in New York State Land Title Associations, Inc. v. The New York State Department of Financial Services (page 69).

To remind the reader, the New York County Supreme Court had previously annulled the Insurance Regulation which regulated title closer fees, ancillary charges, premiums and most importantly, soliciting business.

Now, the annulment is reversed (as if it never happened), except with respect to section 228.5(a)(1)-(3) [ancillary search fees] and (d)(1)-(2) [closer fees].

So, no more sports tickets, golf outings, holiday parties, open houses, and wining and dining to solicit title insurance business.

Now, to the entertaining part. What about all of the ancillary fees that were being charged by title insurance companies, above the regulatory caps, in between the annulment date and the reversal date? If a decision is reversed was it ever annulled? If it was never annulled were the caps on ancillary fees always applicable and were consumers overcharged. These are tough questions that Department of Financial Services should answer soon. Stay tuned and perhaps we will be hearing from the Court of Appeals to put finality to the legality of Insurance Regulation 208.

On January 18, 2019, the IRS issued the safe harbor for rental real estate to be treated as a trade or business for purposes of IRC 199A's Qualified Business Income 20% deduction.

Real etate professionals, who operate "a rental real estate enterprise... [which is] an interest in real property held for the production of rents and may consist of an interest in multiple properties," should study the safe harbor closely as it can make a huge difference in your pocketbook. Interestingly, while multiple properties may qualify as the same enterprise, "[c]ommercial and residential real estate may not be part of the same enterprise."

According to the IRS, the safe harbor requires:

(A) Separate books and records are maintained to reflect income and expenses for each rental real estate enterprise;
(B) For taxable years beginning prior to January 1, 2023, 250 or more hours of rental services are performed (as described in this revenue procedure) per year with respect to the rental enterprise. For taxable years beginning after December 31, 2022, in any three of the five consecutive taxable
years that end with the taxable year (or in each year for an enterprise held for less than five years), 250 or more hours of rental services are performed (as described in this revenue procedure) per year with respect to the rental real estate enterprise; and
(C) The taxpayer maintains contemporaneous records, including time reports, logs, or similar documents, regarding the following: (i) hours of all services performed; (ii) description of all services performed; (iii) dates on which such services were performed; and (iv) who performed the services. Such records are to be made available for inspection at the request of the IRS. The contemporaneous records requirement will not apply to taxable years beginning prior to January 1, 2019

To claim the safe harbor, "include a statement attached to the return on which it claims the section 199A deduction or passes through section 199A information that the requirements in Section 3.03 of this revenue procedure have been satisfied."

Some employers want to know if they can chose to take the penalty and forego the NY required sexual harassment prevention training, policy and complaint form. Here is a cost benefit analysis explanation that you should read before making such a terrible decision.

The trial will be painful for the employer to say the least. 

The New York Real Estate Journal featured Andrew Lieb, Esq. in the Year in Review 2018.

Click here to learn about the best decision that Andrew Lieb made in 2018. 

Game-changing developments are expected to occur in 2019 with respect to therapy dogs (i.e., service dogs and emotional support dogs) and real estate professionals must monitor these developments as they occur to stay on top of their game and avoid facing a lawsuit.

As some background, on April 18, 2018, Governor Cuomo signed S7319 into law. This statute charged "the commissioner of agriculture and markets shall convene a working group to examine the need for statewide standards for therapy dogs." Then, in October 2018, the working group published "A Report from the New York State Therapy Dog Working Group".

The Report is clear to note that "[therapy dogs are not defined in other laws under the Americans With Disabilities Act, Federal Housing Authority, NYS Human Rights Law, or New York City Human Rights Law" and that the current definition found at Article 7 of the Agriculture and Markets Law should be expanded to include "private homes" to its current definition of "any dog that is trained to aid the emotional and physical health of patients in hospitals, nursing homes, retirement homes and other settings and is actually used for such purpose, or any dog during the period such dog is being trained or bred for such purpose, and does not qualify under federal or state law or regulations as a service dog." As such, the definition would be relevant to suit under the New York State Human Rights Law (i.e., discrimination in housing) - Real Estate Brokers, Property Managers and Landlords take notice.

The Report calls for "standards regarding training, evaluation, certification, and identification of therapy dogs... especially in relation to service dogs and emotional support dogs." It is expected that further statutes will follow to enact the recommendations of the Report. It's important for real estate professionals to monitor these statutes as they go from bill to law rather than to learn about their rules from receiving a Summons and Complaint. Remember, the best real estate professionals are on the cutting-edge on changes to the law. Leveraging those changes makes you money. 

In a decision dated Nov. 6, 2018, the United States Supreme Court broadened the scope of the Age Discrimination in Employment Act of 1967 (ADEA) to cover state and local governments regardless of number of employees. Public employers must now be advised that they may be liable under the ADEA, regardless of number of employees, and face additional exposure for claims of age discrimination.

Read the full article by Mordy Yankovich, Esq. published in The Suffolk Lawyer here. 

The dichotomy between a litigation and a transactional practice is stark. Simply, transactional counsel needs to adhere to the game of hot potato — don’t get stuck as the recipient of a notice when the music stops. Instead, counsel must assert a preservation right whenever counsel receives a notice that asserts contrary rights by the other party. Then, counsel should consult with litigation counsel to collaborate on how to best achieve the client’s goal through a hybrid of leveraging litigation and negotiating terms.

Click here to read the full article published in The Suffolk Lawyer. 

A lawsuit is not what you see on TV. On TV, a lawsuit is won by an attorney marching into court with a grand display of showmanship and a cunning tongue. The TV judge hearing the case makes a spot decision and it’s all over and decided before the final commercial break. In reality, a civil litigation takes years and is much more of a chess match than a swordfight. As opposed to this courtroom drama, a real case is typically decided on paper submissions that may be heard months after they are first provided to the court. Additionally, the decision is often made on a technical procedural rule, not on the merits or substance of the litigation.

You see, being right isn’t everything in real litigation. Instead, a real lawsuit is all about knowing how to play the game. The following is a summary of the stages of a litigation, but this chess match isn’t linear and each of the stages can appear out of order and can even reoccur again and again. So, civil litigants need a skilled advocate who is a master of the game if they want a shot at victory. Here is your game board:

• Must love technology and use it always, must be comfortable in a paperless office with cloud based systems

• Demonstrated proficiency in legal writing and oral advocacy;

• Dedicated, organized and detail-orientated;

• Ability to leverage substance rather than emotion;

• Experience drafting contracts.

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