Beginning June 20, 2020, courts will accept new eviction matters – statewide eviction moratorium expires (Executive Order 202.28).

To facilitate this, the Chief Administrative Judge released a memorandum setting the procedures for residential and commercial eviction proceedings in New York State.

Now, commencement documents in eviction proceedings must be filed with the court by NYSCEF or mail. Further, until further order, petitions in commercial and residential eviction proceedings based on nonpayment of rent or on other grounds must include the following:

1. Form petitioner’s attorney affirmation or petitioner’s affidavit (for self-represented petitioners), indicating that counsel / petitioner has reviewed the various state and federal restrictions and qualifications on eviction proceeding and believes in good faith that the proceeding is consistent with those restrictions and qualifications; and
2. Form notice to respondent-tenants (in both English and Spanish), informing them they may be eligible for an extension of time to respond to the petition in light of legal directives related to the COVID-10 pandemic, and directing them to a telephone number and/or website link for further information.

As a reminder, eviction proceedings based on non-payment of rent by a tenant who is eligible for unemployment insurance or benefits under federal or state law or is otherwise facing financial hardship due to COVID-19 are prohibited until August 20, 2020 per Executive Order 202.28. In addition to the above forms, NYC currently has directives requiring good faith affidavits to be filed with the petition. You can read more about it HERE. Stay tuned should the Civil Court of New York City update their directives in light of the Chief Administrative Judge’s memorandum.

The memorandum further stays the hearing of the eviction matter until the Executive Orders suspending statutory time periods for legal matters expire. However, eviction matters commenced on or before March 16, 2020 in which all parties are represented by counsel shall be eligible for calendaring for virtual settlement conferences.

Also, the New York State Courts Electronic Filing System (NYSCEF) will accept New York City Housing Court matters later this summer.

Beginning June 20, 2020, any petitioner seeking to commence a summary proceeding for nonpayment of rent shall file with the petition an affidavit by a person with knowledge of the facts, stating the following:

• Petitioner has made a good faith effort to ascertain whether the respondent is a person eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic;
• Respondent is not such a person; and
• Facts upon which the petitioner / individual signing the affidavit based such conclusion. See DRP 209.

Similarly, any individual seeking to obtain a default judgment for the respondent’s failure to answer in a summary proceeding based on the non-payment of rent must attach to the application, an affidavit with the above information. See DRP 210.

Lastly, the affidavit is also required to enforce a warrant of eviction that was awarded prior to March 20, 2020 based upon the nonpayment of rent. To enforce the warrant, the petitioner must seek leave of court to enforce the warrant and such motion must include the affidavit. See DRP 211.

The above directives were published in light of Executive Order 202.28 which extended the eviction moratorium to August 20, 2020 for eviction proceedings or enforcement based on nonpayment of rent or foreclosure of a mortgage, owned or rented, “by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic.”

The above directives apply to both residential and commercial properties and proceedings in all five boroughs and are all effective June 20, 2020, however, it is advised that the above affidavit also be prepared for eviction proceedings in Nassau and Suffolk County as Executive Order 202.28 applies statewide.

While Executive Order 202.28 and the Courts are well-intentioned, gathering the information required to complete the affidavit may be problematic for landlords. Often, a tenant who has not paid rent, has not reached out to the landlord to renegotiate their rent during the coronavirus pandemic, and is being evicted is unlikely to cooperate with a landlord’s attempt to get information. Nonetheless, landlords are advised to consult counsel in order to ensure that they follow the correct court procedures as one small mistake in filing may cause further delay, or even dismissal, of their court proceedings.

On June 15, 2020, the United States Supreme Court issued a decision in three companion cases (Bostock v. Clayton County; Altitude Express, Inc. v. Zarda; R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC) holding that Title VII of the Civil Rights Act of 1964 protects homosexual and transgender employees from discrimination/harassment in the workplace.

In all three (3) cases, the employer terminated the employee's employment after it was revealed that the employee was homosexual or transgender. Each employee brought suit under Title VII claiming that they were fired because of their "sex" (Title VII prohibits discrimination based on race, color, religion, sex and national origin). The Supreme Court held that "sex", pursuant to Title VII, includes sexual orientation and transgender as protected classes because, as the Court reasoned, "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

The Court provided the following example to illustrate its position: An employer has two employees, a female and a male, both of whom are attracted to men. If the employer fires the  male employee for no reason other than the fact he is attracted to men, the employer discriminates against him because the employer is tolerating the same trait or behavior from the female employee. The employer, the Supreme Court held, has thus terminated the employee "because of sex" in violation of Title VII.

This decision is particularly noteworthy because Justice Gorsuch and Chief Justice Roberts, typically known as  "conservative" justices, were in the majority (Justice Gorsuch authored the Decision). This signifies the courts continued emphasis on interpreting laws to protect employees from discrimination in the workplace. Employers should, thus, take even more proactive steps (including but not limited to policies and training) to mitigate the risks of discrimination lawsuits.

The Real Estate market has reopened and investors are everywhere. We review the legal requirements to take on investors and review calculations to make sure you are making the right decisions.

Governor Cuomo has signed Executive Order 202.38, a copy of which can be found HERE. For non-legal practitioners, the big ticket items in this Executive Order deal with Phase 2 reopenings. Businesses can check for temperature and refuse entry. Restaurants and bars can serve food outdoors. Sidewalks and closed streets can be used by businesses to serve food and drink. Houses of worship can allow non-essential gatherings at less than 25% capacity. Of course all of this good news is still subject to businesses following social distancing, cleaning protocols and a reopening plan, which we outlined in our blog last week titled Are you Ready to Reopen Your Business? Here is Your 5-Step Plan.