Remote depositions have long served an important purpose. In the pre-pandemic era, for example, they allowed us to depose witnesses in distant locations without the need for travel. But it was during the pandemic that remote depositions became something we could not live without. Our cases did not come to a complete standstill; discovery proceeded as many lawyers embarked on a crash course in litigation via advanced technology. I, like many others, came to realize that remote depositions can be accomplished even in more complicated circumstances involving multiple lawyers and many exhibits.

The New York Commercial Division Rules were recently amended to reflect the reality that remote depositions are now a permanent part of the litigation landscape. Rule 37, which quietly took effect on December 15, 2021 as the holidays approached and the omicron surge took hold, sets out the parameters for remote depositions in commercial cases.

The rule states that the court may, upon the consent of the parties or a showing of good cause, order that depositions take place remotely. Factors relevant to a showing of good cause include but are not limited to:

  • The safety of the parties and the witness, including whether they and counsel can safely convene in a single location, which shall be given priority over all other considerations;
  • The distance between the parties and the witness and the time and costs associated with travel to an in-person deposition location;
  • Whether the witness is a party to the litigation; and
  • The likely importance of the witness’ testimony to the case.

Sub-section (c) of the rule encourages parties to adopt a form setting forth protocol for the conduct of remote depositions that is annexed as Appendix G. These protocols are designed to ensure that parties meet the rule’s requirement that remote depositions replicate in-person depositions to the extent practical and eliminate prejudice to the parties. They include but are not limited to the following provisions:

  • All participants must be clearly visible, their statements must be audible, and each should use best efforts to eliminate noise and distraction.
  • Counsel shall not communicate privately with the deponent during the deposition, including through electronic means. If counsel needs to consult with the witness to determine whether privilege should be asserted, he or she may do so only after the witness states on the record that he or she needs to consult with counsel for that purpose.
  • The parties shall specify a protocol for sharing and viewing exhibits.

Rule 37 also provides that the parties shall not mount a challenge based on the fact that the court reporter and the witness are in different locations, or because the court reporter is not authorized to administer an oath in the state where the deponent resides. Additionally, it states that an attorney’s failure, as the result of technical difficulties, to make objections or give instructions not to answer shall not be deemed a waiver so long as remedied as soon as practicable.

In the end, whether or not you are a fan of remote depositions, it is important to become familiar with Rule 37 if you practice in the Commercial Division. It is not merely an emergency rule that will expire in the future when the pandemic is behind us. It is the first iteration of a rule that governs a newer method for conducting discovery, which will become increasingly common as more tech-saavy lawyers take up the mantle as lead counsel in commercial matters.

If you have any questions about remote depositions, please contact Jessica Baquet at jbaquet@jaspanllp.com.

The Governor signed a bill on January 25, 2021 (the “Bill”), “to back New York’s construction workers in their fight against wage theft and help those seeking justice to navigate their claims against such crimes.”[1]  The Bill takes effect on January 4, 2022, “and shall apply to construction contracts entered into, renewed, modified or amended on or after such date.”[2]

“The purpose of this bill is to amend the existing wage theft law to increase the likelihood that exploited workers in the construction industry will be able to secure payment and collect unpaid wages and benefits for work that has already been performed.”[3]  The Bill provides that:

“a contractor making or taking a construction contract shall assume liability for any debt resulting from making a wage claim, owed to a wage claimant or third party on the wage claimant’s behalf, incurred by a subcontractor at any tier acting under, by, or for the contractor for the wage claimant’s performance of labor; provides for wage theft prevention and enforcement.”[4]

Before the enactment of this Bill, a construction worker could file “a private lawsuit against his/her direct employer to collect any unpaid wages, including overtime and fringe benefits.”[5] Notwithstanding, despite a worker’s ability to file a lawsuit against its direct employer, often that employer was judgment proof.[6]  This Bill now “amends existing wage theft law to require general contractors to assume joint and several liability for any debt resulting from making a wage claim, owed to a wage claimant or third party on the wage claimant’s behalf.”[7]

The hope of this Bill is that by holding the general contractor liable for all subcontractors that it chooses to utilize on a jobsite, the general contractor will monitor its subcontractors more carefully to ensure that they are properly paying their employees.  Essentially, the Bill is intended to create an “incentive for the construction industry to better self-police itself in turn, this will hopefully lead to a decreased burden on State and City Agencies, including the Department of Labor and Workers’ Compensation Board, in terms of enforcement resources.”[8]

The Bill permits general contractors the “authority to oversee the books of subcontractors in order to better ensure that workers are being paid all owed wages.”[9]  In particular, General Business Law was amended, and section 756-f was added which provides, in pertinent part, that:

“Upon request of a contractor, or a contractor’s subcontractor, to any subcontractor which performs any portion of work within the scope of the contractor’s construction contract with an owner, such subcontractor shall provide certified payroll records which, at a minimum, contain all lawfully required information required for all employees providing labor on the project. Such payroll records shall contain sufficient information to apprise the contractor or subcontractor of such subcontractor’s payment status in paying wages and making any applicable fringe or other benefit payments or contributions to a third party on its employee’s behalf.”[10]

“[A] contractor may withhold payment to a subcontractor or lower tier subcontractor for failure to provide certain payroll records.”[11]

What is the impact of this Bill? Essentially, it has now made the general contractor liable in the event that its subcontractor does not properly pay their workers. In order to mitigate the general contractor’s liability, the Bill allows the general contractor to oversee the books and records of the subcontractor to ensure that they are properly paying their employees and to withhold payments to a subcontractor if the subcontractor fails to provide certain payroll records.

It is important for contractors (and subcontractors) to ensure that the contractors they retain are properly paying their workers. If such subcontractor fails to properly pay their workers, the general contractor will be liable. Accordingly, it is imperative that general contractors review the subcontractors’ payrolls and make sure that the workers are properly being paid.

Jaspan Schlesinger LLP can help you navigate these issues and other construction law related matters. If you need assistance, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Charles W. Segal at csegal@jaspanllp.com.

[1] Senate Acts To Penalize, Prevent Wage Theft, Press Release, June 2, 2021.

[2] 2021 NY A.B. A3550. § 4.

[3] 2021 NY S.B. S2766C at “Purpose or General Idea of Bill”. The purpose of the Bill is found in the New York State Senate Bill S2766C, which was substituted by New York State Assembly Bill A3350 on June 2, 2021.

[4] 2021 NY A.B. A3550.

[5] 2021 NY S.B. S2766C at “Justification”. The justification of the Bill is found in the New York State Senate Bill S2766C, which was substituted by New York State Assembly Bill A3350 on June 2, 2021.

[6] Senate Acts To Penalize, Prevent Wage Theft, Press Release, June 2, 2021.

[7] Id.

[8] 2021 NY S.B. S2766C at “Justification”.

[9] Senate Acts To Penalize, Prevent Wage Theft, Press Release, June 2, 2021.

[10] General Business Law §756-f.

[11] 2021 NY S.B. S2766C at “Summary of Provisions”. “Failure to timely comply with a request for information as provided herein shall be a basis for a contractor to withhold payments owed to a subcontractor at any tier.” General Business Law §756-f.

 

 

The Governor signed a bill on October 25, 2021, amending General Business Law § 771[1] to require contractors and subcontractors to disclose the existence of property and casualty insurance (the “Bill”). The Bill takes effect on April 23, 2022.

General Business Law §771(i), will require that:

Before a contractor or subcontractor begins work on a home, such writing shall disclose to the homeowner the existence of a property and/or casualty insurance policy that covers the scope of such contractor or subcontractor’s employment should an insurance claim be filed resulting from losses arising from the work at such property. Such disclosure shall also include the contact information of the insurance company providing such property and/or casualty insurance, including a phone number and address.[2]

According to the Legislative History[3], this Bill is intended to “protect homeowners from damage that may be the result of work done by a contractor and/or sub-contractor by requiring contractors and sub-contractors to disclose in writing the existence of property and/or casualty insurance along with the contact information of the insurance company before doing any work on the property.”[4] Most cities, towns and villages in New York typically require that a contractor file proof of insurance before obtaining a building permit. However, that requirement relates to naming the city or town or village as an additional insured. In addition, the City of New York specifically requires that no exclusions in the insurance may apply to it.  Cities, towns or villages in New York with consumer protection departments often require that contractors register with the department and show proof of carrying a certain minimum level of insurance or post cash security against claims by consumers. However, this Bill is designed to prevent a contractor/sub-contractor from failing to provide their property and/or casualty insurance information or from misrepresenting the level of insurance they have to the homeowners before doing the work.[5]  The justification for this Bill is to ensure that when a property owner suffers damage to their property as a result of work performed by a contractor/subcontractor, the owner should have a clear understanding as to how to file a claim against the contractor/sub-contractor’s insurance carrier.

It is important for both contractors and homeowners to make sure that the proper insurance is provided at the inception of the project. Jaspan Schlesinger LLP can help you reviewing the necessary insurance requirements.

If you need assistance, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Charles W. Segal at csegal@jaspanllp.com.

[1] 2021 NY A.B. A2202.

[2] General Business Law § 771(i).

[3] The purpose and justification of this bill can be found in the Senate Bill, S4060, which was substituted by New York State Assembly Bill A2202 on June 9, 2021.

[4] 2021 NY S.B. 4060 at “Purpose or General Idea of Bill”.

[5] Id. at “Justification”.

On Friday, December 10, 2021, the New York State Department of Health Commissioner issued the “Commissioner’s Determination on Indoor Masking Pursuant to 10 NYCRR 2.60” (the “Determination”) setting forth new indoor masking guidelines in the State of New York. The Determination provides “findings of necessity” in support of that mandate, including among other things statements that  the “winter surge of the Delta variant” and the concern that the Omicron variant “appears to be spreading” support issuing strict indoor masking measures during the holiday season to “ensure that there is protection in all indoor settings through either vaccination status or mask-wearing.” (The 12/10/21 Determination at “Findings of necessity.”) Governor Hochul announced the indoor masking mandate would become effective Monday, December 13, 2021, remaining in effect until January 15, 2022.This post focuses on the guidelines set forth concerning  “All Public Places Not Otherwise Covered by This Determination.” (The 12/10/21 Determination.) However, a summary of the key provisions of the other indoor mask requirement is set forth in the footnote below.[1]

The Mandate to All Public Places Not Otherwise Covered by This Determination.

The Determination establishes strict indoor masking guidelines for the State of New York, regardless of vaccine status, providing in relevant part that “…all persons, over age two and able to medically tolerate a face covering/mask, regardless of vaccination status, shall wear an appropriate face covering while in any indoor public place.”  (The 12/10/21 Determination at 7.a.) The Determination further provides that “indoor public place” shall mean “any indoor space that is not a private residence.” (The 12/10/21 Determination at 7.c.) The exception to this rule is “any indoor public area that requires proof of vaccination as a condition of entry.” (The 12/10/21 Determination at 7.b (underline emphasis added).) In other words, the Determination provides that all persons ages 5 and above provide proof of vaccination prior to entering an indoor business or venue or all persons in that business or venue must be masked at all times (less specifically enumerated instances) regardless of vaccination status.

What Is an Indoor Public Place and What is Required in the Public Business/Venue?

The Determination’s corresponding Frequently Asked Questions (“FAQs”) addendum explains the intended scope of the “indoor public place” requirements. Specifically, the definition is intended to include “typically frequently” public and private venues such as “indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers, grocery stores, pharmacies, houses of worship and common areas in residential buildings.” (See Frequently Asked Questions at “Information for Businesses and Venues.”)

The FAQs further explain that an indoor business or venue may choose to comply with the mandates set forth in the Determination by either requiring that all persons who enter the indoor venue are fully vaccinated or by requiring that all persons inside such a venue are fully masked, regardless of vaccination status; however, “[a] business and venue cannot do a ‘combination’ requirement.” (See Frequently Asked Questions at “What Exactly are the Requirements?”)  Further, the requirement applies to patrons and employees. In other words, if a business or venue does not require that all patrons show proof of vaccine status before entering, every employee in the business or venue must adhere to the mask mandate at all times while indoors and vice versa.

What Proof is Required by the Determination?

The FAQs explain that persons age twelve (12) and above must be fully vaccinated (defined as 14 days post a one-dose vaccine or 14 days past the second dose of a two-dose Pfizer or Moderna COVID-19 vaccine) prior to entering a business or venue. Children ages 5-11 must show proof of at least one dose of the COVID-19 vaccine prior to entering a business or venue. (See Frequently Asked Questions at “Business/Venue Proof of Vaccination Requirement.”)

Such proof may be established by the Excelsior Pass, SMART Health Cards issued by states other than New York, a New York State COVID Safe app full-course vaccination, a CDC Vaccination Card, or other official immunization record will satisfy the Requirement. (See Frequently Asked Questions at “Business/Venue Proof of Vaccine Requirement.”)

How Do the Mandates Affect Office Spaces?

The FAQs explain that any office space that does not require proof of vaccination as a condition of entry must follow the masking policy, stating: “If the office does not require proof of vaccination as a condition of entry, everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room.” (See Frequently Asked Questions at “Information for Businesses and Venues” (underline emphasis added).)  The FAQs add that such guidance constitutes “Department of Health guidance related to face coverings” as set forth in the NY HERO ACT. (See Frequently Asked Questions at “Information for Businesses and Venues.”)

How Do the Mandates Affect Private Gatherings Such as Weddings and Restaurants?

According to the FAQs, private events held indoors at a business or venue are included in the new mandate. In other words, “the business entity/venue must require masking or proof of vaccination as a condition of entry” to a wedding or similar private event held at a private business or venue. (See Frequently Asked Questions at “What about private events held at a public indoor space, such as a wedding hosted at a restaurant or venue?”)

Additionally, food services businesses operating with both indoor and outdoor, enclosed, or semi-enclosed spaces with more than two sides covered must comply with these mandates in both the indoor and outdoor spaces. However, food services operating exclusively in open, unenclosed spaces, e.g., without a roof or two or fewer sides covered, are strongly recommended but not required to follow the mask mandate. (See Frequently Asked Questions at id.)

What About Salons/Personal Care Service Business?

The FAQs state that the proof of vaccine mandate applies to personal care service settings. If a salon does not require proof of vaccine to enter, then persons receiving facials, face hair trimming, etc. “may briefly remove their masks while receiving such services” but are otherwise required to wear masks at all times. The brief removal exemptions would not apply to any services such as hair cuts that do not require mask removal. (See Frequently Asked Questions at “How does the new policy work for salons and other personal care businesses…?”) For a full review of the scenarios contemplated, see generally Frequently Asked Questions.

Preparing for the New Mandate

In light of the new mandate people living in and visiting New York should consider taking the following steps:

  • Fully vaccinated persons and employees alike in New York should bring a mask and proof of vaccine when leaving their residence to go to indoor businesses or venues to ensure entry into such establishments.
  • Owners/Managers of indoor businesses or ventures must immediately determine how they will comply with the mandate while it is in effect.
  • Persons hosting weddings and gatherings at indoor businesses or ventures while the mandate is in effect should reach out immediately to the owners/managers of those establishments to determine the policies adopted and the effect, if any, such policies will have on guests’ ability to attend the event.
  • Unvaccinated persons in New York age five and over will likely experience difficulties frequenting restaurants and service salons and/or attending school functions and meetings while this mandate is in effect.
  • Families with unvaccinated children ages five and above planning on visiting New York should consider the effect the mandate will have on their travel plans.

s[1] Healthcare Settings: “…all personnel, regardless of vaccination status … shall wear an appropriate face mask” and “all visitors over age two and able to medically tolerate a face covering/mask shall be required to wear a face covering/mask in health care facilities, regardless of vaccination status, subject to applicable CDC exceptions….” (The 12/10/21 Determination at 1.)

Adult care facilities (ACFs) regulated by the Department: “all ACF personnel, regardless of vaccination status, shall wear an appropriate face mask if providing direct medical care” and other staff shall wear “at a minimum, a cloth face covering … in such settings” both “in accordance with any applicable CDC exceptions….” (The 12/10/21 Determination at 2.)

P-12 school settings: “[U]niversal masking of teachers, staff, students, and visitors to P-12 schools over age two and able to medically tolerate a face covering/mask and regardless of vaccinations status … subject to applicable CDC-recommended exceptions.” (The 12/10/21 Determination at 3.a.) This requirement “is extended to any gathering on school grounds which addresses or implements educational matters where students are or may reasonably be expected to be present.” (The 12/10/21 Determination at 3.b.) If “officials presiding over” such public meetings “are unable to guarantee compliance with such masking requirements, they are advised to implement full virtual access to public meetings” as set forth in the New York State Open Meetings Law dated September 2021. (The 12/10/21 Determination at 3.b.) Finally, the P-12 school setting mask mandate “does not provide for the implementation of ‘mask breaks’ during the school day, nor does it provide for an exception to the masking requirement on the basis of minimal social distancing in classrooms.” (The 12/10/21 Determination at 3.c.)

Correctional facilities and detention centers: “[A]ll incarcerated/detained Persons and staff shall wear an appropriate face covering/mask when social distancing cannot be maintained” and all “visitors over age two and able to medically tolerate a face covering/mask shall wear an appropriate face covering/mask in accordance with applicable CDC exceptions….” (The 12/10/21 Determination at 4.a.-b.)

Homeless Shelters/Emergency Shelters/Day Shelters and Meal Service Providers: “[A]ll clients visitors, staff, and volunteers over age two and able to medically tolerate a face covering/mask shall wear an appropriate face covering/mask, regardless of vaccination status, when social distancing cannot be maintained….” (The 12/10/21 Determination at 5.)

Public Transportation Conveyances and at Transportation Hubs: While indoors on public transportation and at hubs, “all persons , over age two and able to medically tolerate a face covering/mask, regardless of vaccination status shall wear an appropriate face covering mask….” (The 12/10/21 Determination at 6.a.)

 

 

The Governor signed a bill on January 6, 2021, amending State Finance Law § 139-f(a)[i] to remove the statutory definition of “substantial completion”, in relation to payments on public construction contracts (the “Bill”). The Bill took effect on December 15, 2020.  In particular, the Bill removed the definition of substantial completion and now allows public agencies to retain their own definitions of substantial completion. Substantial completion of the work on a public contract acts as a trigger for permitting a contractor to request a reduction in the typical retention on a construction project and to submit its final payment requisition for payment of the remaining amount due on its contract.

State Finance Law § 139-f previously defined when a public project was substantially completed and when a contractor was permitted to submit its final payment requisition. Substantial completion was previously defined as “mean[ing] the state in the progress of the project when the work required by the contract with the public owner is sufficiently complete in accordance with the contract so that the public owner may occupy or utilize the work for its intended use; provided further, that ‘substantial completion’ shall apply to the entire project or a portion of the entire project if the contract with the public owner provides for occupancy or use of a portion of the project”[ii].

The reason for this change to State Finance Law § 139-f was that the definition of substantial completion applied to various types of contracts and industries. The Legislature determined that there should be a more flexible term, depending on a particular contract or industry.  The Bill “allow[s] for public contracts to be the defining authority on what constitutes substantial completion, by referring to substantial completion, as it appears within the terms of the contract.”[iii]

State Finance Law § 139-f also amended the timing for a contractor to complete certain tasks set forth in the public owner’s “punch” list of work to be completed from seven calendar days to five business days.  This change “provide[s] essentially the same amount of time without contract deadlines falling on holidays or the weekends.”[iv]

When issuing or negotiating a public improvement contract, it is important that the contract define when substantial completion occurs. Jaspan Schlesinger LLP can help you in issuing or negotiating public improvement contracts.

If you need assistance, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Charles W. Segal at csegal@jaspanllp.com.

[i] 2021 NY S.B. S880. State Senator Neil D. Breslin (44th Senate District).

[ii] 2020 NY CLS St Fin § 139-f

[iii] 2021 NY S.B. S880 at “Justification”.

[iv] Id.

The past year has seen a great deal of news pertaining to eviction moratoriums. Federal level, state level, residential, commercial, expired, extended – frankly it has been difficult to keep straight what law is in place at any given time. This blog offers a brief overview of the laws and lawsuits that have molded federal and state eviction moratoriums, and the current status of New York law with respect thereto.

The Federal Eviction Moratorium

In 2020, lawmakers enacted the very first nationwide eviction moratorium as part of a federal stimulus package. The moratorium was set to expire on July 25, 2020. After its expiration, with COVID cases still on the rise, the Centers for Disease Control and Prevention (“CDC”) issued a national eviction moratorium, which went into effect in September 2020 and lasted throughout the first half of 2021. In July, when that moratorium expired, the CDC issued a new one that applied only to regions of the country with high COVID transmission rates.

The CDC moratoriums have undergone a number of legal challenges, a notable instance of which reached the United States District Court for the District of Columbia. The federal government argued that the moratorium was an exercise of “legislative powers” granted to Congress and delegated to the CDC. In opposition, the plaintiffs (which included landlords along with the Georgia and Alabama chapters of the Association of Realtors) contended that the CDC had well-exceeded those powers. Although the landlords won on summary judgment, the Court stayed enforcement of that order pending the government’s appeal. When the Court later denied the plaintiffs’ emergency application to vacate the stay, the plaintiffs appealed to the Supreme Court. The Supreme Court denied the motion to vacate, and the stay remained in place.

At the end of July, with the then-existing stay set to expire, the CDC issued yet another moratorium, prompting the plaintiffs’ return to court. In doing so, they challenged the new moratorium and again challenged the stay of the District Court’s order. The District Court denied the motion, holding that the stay of enforcement applied to the newly enacted moratorium.

Upon appeal to the Supreme Court, however, the landlords finally prevailed. Specifically, in August 2021, the Supreme Court vacated the stay of enforcement and held that the moratorium was unlawful because the CDC exceeded its statutory authority. Accordingly, any eviction moratorium in place since then has been at the state level, as discussed below, rather than at the federal level.

The New York Eviction Moratorium

New York’s moratorium on eviction proceedings began in March 2020, when the pandemic first began to rear its ugly head. That month, Chief Administrative Judge Marks announced that all proceedings for residential evictions were suspended. However, the state moratorium did not become law until December 2020, when former governor Andrew Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“CEEFPA”). That act banned eviction and foreclosure proceedings against residential tenants who filed a declaration that they were experiencing financial hardship due to COVID or that at least one member of the household was “high-risk” for contracting COVID and, therefore, that moving would pose a significant health risk.

Protection for certain commercial tenants came in March 2021, when the state created a commercial eviction moratorium for small businesses that (1) had 50 or fewer employees; (2) were residents of new York; (3) were independently owned and operated; and (4) were not dominant in their field. It likewise created a foreclosure moratorium for small businesses with one additional requirement – that they have 10 or fewer commercial units in total.

Needless to say, the state moratoriums have not gone unchallenged. A group of five landlords and one association filed suit in federal court alleging that the moratorium violates property owners’ rights to due process and free speech. Initially, the plaintiffs were unsuccessful as the district court found, among other things, that the law did not implicate procedural due process. However, the plaintiffs fared better on an emergency appeal to the U.S. Supreme Court[1] and, on August 12, 2021, the Supreme Court enjoined the moratorium in part, finding certain provisions thereof insufficient with respect to due process protections. (Chrysafis et al. v. Lawrence K. Marks, Docket No. 21-civ-2516).

Importantly, however, the particular statute at issue in those cases was set to expire at the close of August. Accordingly, state lawmakers took to the drawing board and, on September 1, 2021, Governor Kathy Hochul signed into law a four-month extension of the moratorium (into January 2022). Unlike its predecessor, this latest moratorium applies to, among others, businesses with 100 or fewer employees (as opposed to 50 or fewer, under the old law).

However, it also includes a mechanism (allegedly addressed to due process concerns) pursuant to which landlords and foreclosing lenders may challenge the tenant’s hardship declaration. For those instances where the hardship declaration is challenged, the landlord or lender can move for a hearing as to whether the hardship claim is invalid. Moreover, even where the hardship claim is deemed valid, the court will direct the tenant to apply for federal or local rental assistance, presuming the tenant is eligible and has not yet applied.

Unhappy with what they viewed as a workaround for the Supreme Court’s injunction,

the plaintiffs took to court and challenged the newly enacted law. However, the Second Circuit examined only the then-expired law (as it was the law in existence when the claim was filed) and found the plaintiffs’ due process challenge moot in light of the “change of legal framework.” The Court also recommended that the plaintiffs amend their complaint to address the newly enacted legislation.

Conclusion

In sum, while the federal eviction moratorium has been lifted, a New York-specific moratorium remains in place (at least for now). However, this latest New York moratorium offers landlords a procedural mechanism to challenge claims of hardship. For more on the new eviction moratorium statute and your rights with respect thereto, contact Daniel Shapiro at dshapiro@jaspanllp.com or Rachel Morgenstern at rmorgenstern@jaspanllp.com.

[1] The plaintiffs first sought emergency appeal from the Second Circuit, but were denied.

Over the course of the last few weeks, New York’s vaccine mandates have been the subject of much debate, not only in the sociopolitical arena but also inside of various courtrooms throughout the State.  Currently, New York State is seeking to impose a vaccine mandate on those working within the State’s health care sector (the “NYS Health Care Mandate”), whereas New York City has implemented a vaccine mandate targeting all school district employees and a swath of school contractors (the “NYC School Mandate”), which took effect on October 1, 2021.[1]  Both of these Mandates have been challenged in Court by subsets of impacted employees who are opposed to getting the vaccine.  One of the issues that has been front and center in these lawsuits is whether industry-wide vaccine mandates such as these must include an exemption for workers who establish that their sincerely held religious beliefs prohibit vaccination (i.e. a religious exemption).[2]

As it stands, neither the NYS Health Care Mandate nor the NYC School Mandate City’s provides for a “religious exemption.” The question is whether they pass legal muster absent such an exemption. For now, based on what has transpired in the courts over the past two weeks, the answer is a resounding “yes.”

The Lawsuits Against NYS and NYC

On September 9, 2021, a group of New York City unions representing various school district employees and contractors sued the City in the New York County State Supreme Court (the “City Case”).  Those petitioners sought to enjoin the City, and its governing agencies, from implementing the NYC School Mandate.  The Mandate was originally scheduled to take effect on September 27, 2021 by which time all of the targeted City district employees and contractors needed to be able to furnish proof that they had received at least one (1) dose of the vaccine.  Of significant note, at the time the suit was filed, the City Mandate did not provide for any type of exemptions, religious or medical. Those omissions went to the core of the petitioners’ claims that the Mandate violated their rights under federal and state law.

Four days later, on September 13th, a group of 17 medical professionals employed by New York State brought an action in the Federal Court of the Northern District of New York alleging that the NYS Health Care Mandate violated their rights under state and federal law because it effectively barred their employers from approving any form of religious exemption (the “State Case”).[3]

The core argument put forward by the plaintiffs/petitioners in these cases was that, without a religious exemption, the mandates violated their rights under Title VII of the Civil Rights Act of 1964 and their Freedom of Expression rights under the First Amendment to the US Constitution.[4]

In both cases, the plaintiffs/petitioners were granted temporary restraining orders staying the enforcement of the Mandates pending hearings on the underlying applications for preliminary injunctive relief.  However, as a result of the temporary restraining order issued in the City Case (which the presiding Justice Laurence Love issued on the basis that the NYC School Mandate initially had no reference to the possibility of any medical or religious exemption), the City immediately modified and restated its Mandate to include the following language: “Nothing in this Order shall be construed to prohibit any reasonable accommodation otherwise required by law.”    As a result of this added language, Justice Love dismissed the City Case which he now deemed moot.  Notwithstanding, the NDNY Court in the State Case has yet to decide whether to vacate or convert its TRO to a preliminary injunction, which it announced it would do before the TRO expires on October 12th.

What is clear from a review of the parties’ submissions in both cases coupled with the decision and order of Justice Love dismissing the City Case is that well-settled precedent cannot be reconciled with the religious objectors’ argument that a vaccine mandate must provide for a religious exemption in order to be valid.   If anything, these cases demonstrate that as long as a vaccine mandate provides for the “possibility” of a religious exemption, it should not be overturned on the basis that it wrongfully curtails the employees’ constitutional, federal or state rights on religious grounds.

The First Amendment Issue

Regarding the question of whether excluding a religious exemption from these vaccine mandates runs afoul of the First Amendment, long-standing precedent provides us with the answer. For instance, century-old US Supreme Court precedent provides that a State may exercise its police powers by imposing a vaccine mandate.  Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905).  On the subject of religious liberties, the US Supreme Court has also long recognized that the right to practice one’s religion freely “does not include liberty to expose the community…to communicable disease” (Prince v. Massachusetts, 321 U.S. 158, 166-67 & n. 12) and has more recently identified “compulsory vaccination laws” as being religious-neutral laws that do not require religious exemptions under the First Amendment.  Employment Div., Dep’t of Human Res. Of Ore. v. Smith, 494 U.S. 872, 889 (1990).  If these holdings were not persuasive enough, the 2015 the Second Circuit case of Phillips v. City of New York, 775 F.3d 538, 543 puts the First Amendment issue to rest, at least in that jurisdiction.  In that case, the plaintiffs were challenging the State’s requirement that all children be vaccinated in order to attend public schools.  The law was upheld.  And, as is most relevant here, while the Court acknowledged that the law contained a religious and medical exemption, it nonetheless determined that such exemptions went well beyond what the Constitution requires, stating that “New York could constitutionally require that all children be vaccinated in order to attend public school” without such a religious exemption.  The Court also recognized that the mandate’s limitation on the exercise of religion “[was] not the object…but merely the incidental effect of a generally applicable and otherwise valid provision…the First Amendment has not been offended.”  Smith, 494 U.S. at 878.

Presumably, this same logic and analysis would hold up with any other industry-targeted vaccine mandate since the general intent of these mandates is to maintain the health and safety of the workforce (and public at large); it is not to undermine the religious beliefs of those who oppose the vaccine.  Given that, an appropriately tailored vaccine mandate should withstand challenges from employees on First Amendment grounds since any impact it may have on their religious liberties is to be considered an “incidental” effect of an otherwise religious neutral law.

Title VII Issue

On the Title VII employment discrimination front, the argument tested by those who are opposed to getting the vaccine due to their sincerely held religious beliefs is that the exclusion of a religious exemption invites their employers to make adverse employment decisions (e.g. termination) based on the employee’s religious practices.   To counter this theory, in the cases summarized above, the City and State defendants argued that Title VII merely requires employers to “accommodate” religious beliefs and practices and only to the extent that doing so would not impose an “undue hardship” on the employer.  See 42 U.S.C. § 2000e(j).  It bears mentioning that courts have held that an “undue hardship” is one that results in “more than a de minimus cost to the employer.” Baker v. The Home Depot, 445 F.3d 541, 548 (2d Cir. 2006).  In any event, this “accommodation” requirement explains why the City sought to modify its Mandate to include language clarifying that it should not be interpreted to prohibit such accommodations.  However, what the court in the City Case left unanswered for now is whether a religious exemption can, in some instances, constitute a “reasonable accommodation” that an employer must provide to an employee who opposes the vaccine based on sincerely held religious beliefs.

That issue is not likely to be resolved by the NDNY Court that is overseeing the NYS Health Care Mandate case.  That is because the State defendants are arguing in that case, like the City defendants did in the City Case, that their Mandate does not expressly (or implicitly) prohibit an employer from instituting a reasonable accommodation that could be required under Title VII.  That distinction is key. That is because it is the facial prohibition of an employee’s right to a reasonable accommodation that could render a vaccine mandate unlawful under Title VII, not the lack of a religious exemption.  Put differently, and as the State defendants are arguing, Title VII does not require that an employer provide a blanket religious exemption without regard to undue hardships faced by the employer.  See e.g. Robinson v. Children’s Hospital Boston, No. 14-CV-10263, 2016 WL 1337255, at *8 (D. Mass. Apr. 5, 2016)(rejecting employees failure to accommodate claim under Title VII where religious exemption to influenza vaccination would “cause or increase safety risks or the risk of legal liability for the employer.”).

Therefore, following through on Justice Love’s order dismissing the City Case and the arguments pending before the Court in the State Case, it stands to reason that a vaccine mandate is valid, even without an express religious exemption, as long as it does not foreclose on the possibility that one could be sought by a covered employee as a reasonable accommodation under Title VII.

That being said, even with these Mandates in force, individual plaintiffs may still be able to bring suit against their employers under Title VII on grounds that they were denied a “reasonable accommodation” coming in the form of a religious exemption.  However, in such a case, the employee will have to establish that such a religious exemption is reasonable, necessary, and does not cause an undue hardship to their employer.  To add, these employees will have to prove that they do, in fact, subscribe to a religion with a belief system that is not aligned with getting the vaccine, and that they strictly abide by that religion’s other rules and dictates on a consistent basis.  That is because the sincerity of one’s religious beliefs would be put at issue and would be subject to scrutiny in any such case.  But even if an employee were able to overcome all of the foregoing hurdles, in the end it is the employer who decides what the reasonable accommodation for the employee will be, and it does not necessarily have to be the accommodation that is requested.

Conclusion

Before the COVID-19 pandemic — when we only heard of vaccine mandates in the context of schooling – the legal need to provide religious objectors with an express exemption was already waning in the courts. Now that we are in the throes of the pandemic, the compulsion for employers (either public or private) to provide their employees with “religious exemptions” to their COVID-19 vaccine mandates looks to be expunged for good.  In its place is the reverberating message ringing down from our government leaders and judiciary: Get the Vaccine!

For more information on this article, contact Daniel Shapiro at dshapiro@jaspanllp.com and for additional questions regarding whether or how to implement a COVID-19 vaccine mandate for your business, contact Jessica Baquet at jbaquet@jaspanllp.com.

[1] The NYS Health Care Mandate was promulgated pursuant to an amendment to Department of Health (“DOH”) regulations, and codified in 10 NYCRR § 2.61.

The NYC School Mandate was issued pursuant to an Order of the Commissioner of Health and Hygiene to Require Covid-19 Vaccination for Department of Education Employees, Contractors, and Others, dated August 24, 2021.

[2] By in large, religious objectors to the vaccine argue that getting inoculated cuts against their religious values based on a belief that the vaccines were partially derived from fetal cells used in for research, testing and production.

[3] The controversy was magnified by the fact that the NYS Health Care Mandate was an amendment to a prior mandate promulgated by the DOH on August 18, 2021, which did provide for a religious exemption.

 

 

In the ancient times (i.e. before email), there was little doubt about how a person evidenced their intent to be bound by a written agreement – he or she manually signed the document. This resulted in what is known as a “wet signature” (the wet part being the ink from a pen, as signing in pencil, crayon or blood had, over the years, become frowned upon in the legal community). Then along came email, and while it has been in general use for two decades or so by now, courts today are still resolving its application to the law.

In a recent case, In re Misty G. O’Connor (BK 18-11779), the US Bankruptcy Court for the Western District of New York was presented with a case requiring it to determine whether an email could be “signed” by the sender without the existence of any wet signature (either an original or a PDF or other electronic version).

In December 2016, Misty O’Connor formed a new company, Misty Shores Events, LLC, to operate a wedding venue then under construction on the misty shores of Lake Erie. On the (what turned out to be) erroneous assumption that the facility would soon be ready to begin sending newlyweds off in wedded bliss, the LLC started scheduling wedding dates and accepting deposits, including a $1,000 deposit from Craig Markham, whose daughter booked the venue for her June 16, 2018 wedding.

Unfortunately for all concerned, the venue that Misty Shores Events planned to open never saw the light of day, and, to make matters worse, failed to return any of the ten deposits it received. In March of 2018, in an effort to make amends, Ms. O’Connor sent an email to Ms. Markham, in which she wrote that she was “personally trying to pick up the pieces of my business not opening” and that she “agreed to pay each couple monthly payments until their full deposited amount is paid in full.” As the reader can likely surmise from the very existence of this blog article, Ms. O’Connor failed to return Mr. Markham’s deposit.

A couple of months after sending the email, Ms. O’Connor filed for personal bankruptcy. The Chapter 7 trustee later issued a notice to Ms. O’Connor’s creditors that he had recovered assets and set a deadline for filing proofs of claim. Mr. Markham timely filed his claim for $1,000. Notwithstanding that Ms. O’Connor included the customers who paid deposits to LLC (including Mr. Markham) in her personal schedule of unsecured creditors, the trustee rejected Mr. Markham’s claim, taking the position that the return of the deposit was the obligation of the LLC (which had no assets) and not Ms. O’Connor (who did).

This brings us to the point of this blog article. The Statute of Frauds, as set forth in New York General Obligations Law, requires certain matters to be in writing in order to be enforceable, including guaranties. The relevant part of the law provides:

“Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking . . . [i]s a special promise to answer for the debt, default or miscarriage of another person.”

In particular, the law requires not only that the promise be in writing, but that it be subscribed (signed) by the party to be charged. Was Misty’s email a writing signed by her, such that she was personally bound by it? Or would the absence of her actual signature on any document prevail? In this case, the Court had little difficulty in finding that the email satisfied the Statute of Frauds.

The first issue to decide was whether the email constituted a “writing.” Back in the early days of email (namely 2000), New York adopted the Electronic Signatures and Records Act (the “Act”). Under the Act, an electronic record, such as an email, “shall have the same force and effect as those records not produced by electronic means.”  As a result, the Court held that “the email enjoys the same status of a writing in the form of a letter etched with ink on paper.”

Having quickly disposed of the “is it a writing” issue, the Court then turned to the “was it subscribed” issue. In this respect, the manner in which Ms. O’Connor concluded her email made this a particularly easy call for the Court.

Those of you who recall the days when people sent letters will be familiar with the process of manually signing your name at the end of the letter, either by itself or above your typed name. In this case, Ms. O’Connor provided the electronic equivalent of a wet signature – she typed her first name above her full name at the end of the email. This quite easily satisfied the requirements of the Act, which provides that “unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.” The Act defines an electronic signature as one “an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record.” By typing “Misty” above her full name, Ms. O’Connor cut through the fog of whether the email was subscribed by her, and the Court overruled the trustee’s objection to Mr. Markham’s claim.

There are a number of lessons that can be learned from this case. First, above all else, be very careful when booking one of your children’s most meaningful days at a location that hasn’t opened for business. Someone has to be the first event at a new venue, but it doesn’t necessarily have to be you. Second, if you’re dealing with a start up business, make sure someone with some resources has agreed, at the outset, to at least return any deposits and other sums paid if your event doesn’t happen. And third, if you’re going to go through the trouble of forming a venture for the purposes of protecting yourself from personal liability, don’t provide after the fact guarantees if you can help it.

 

 

Email is great, isn’t it? You can save paper and tons of time. But did you know that a simple click of the “send” button may bind you to a settlement?  Litigants and their counsel learned the hard way this month when the First Department reversed the lower court’s decision in Matter of Phila. Ins. Indem. Co. v. Kendall.

In Matter of Phila. Ins. Indem. Co. (Sup. Ct. N.Y. Cty., Index No. 657200/19), an individual plaintiff brought a claim under the Supplemental Underinsured Motorist (SUM) benefit provision in her employer’s automobile policy with Philadelphia Insurance Indemnity Company. The claim went to arbitration and, after a hearing, the arbitrator found in the individual’s favor to the tune of $975,000. However, neither counsel received the arbitrator’s decision. So, they continued to negotiate.

A few days later, the insurance company offered $400,000 to settle. The individual’s counsel responded, and that email ended with a salutation, followed by his name and contact information. But it was unclear whether this information was typed purposefully or generated by a prepopulated block.

Before the individual signed the settlement documents, her counsel received the arbitrator’s decision. The parties then proceeded to court. In determining that the email acceptance of the lesser amount was not enforceable, the lower court held that: (i) it was unclear whether her attorney retyped his name on his email agreement to the settlement in satisfaction of “subscription” under CPLR 2104; and (ii) the email correspondence did not contain all of the material terms of the settlement.  This blog focuses on the “subscription” issue.

What is CPLR 2104?

CPLR 2104 provides in pertinent part that “[a]n agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney . . . .”

 Why Did the First Department Reverse the Decision?

In reversing the lower court, the First Department drew an important distinction between typed signatures and prepopulated signature blocks. Specifically, they held that the “distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today.  It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent.” Matter of Phila. Ins. Indem. Co. v. Kendall, ___AD3d___, 2021 NY Slip Op 04284, *3 (2021).

This finding, the First Department held, was in line with relevant precedent, including  Forcelli v. Gelco Corp. (109 A.D.3d 244, 972 N.Y.S.2d 570 (2d Dep’t 2013)), which stands for the proposition that the retyping of a name is required for an email to be “subscribed” and therefore a binding stipulation under CPLR 2104.

By issuing this latest decision, the First Department then effectively clarified and updated this precedent to conform with the times. It found that the settlement at issue was valid because the transmission of the email, not whether the sender’s email signature was retyped above the sender’s prepopulated block containing contact information at the end of the email, was what determined that the settlement stipulation was subscribed for purposes of CPLR 2104.

The Court mentioned the concern raised by other courts (including the Second Department) about the casual nature of email, and how emails are sometimes sent by accident or with regret after transmission.  However, it left that issue for another day, since the Court was not faced with an attorney who inadvertently sent an email. (They did note that “[c]ertainly, a part of that showing will be prompt action to rectify the error, just as prompt action strengthens an assertion of inadvertent disclosure.”)

To that same end, the Court was sure to qualify its decision, stating that,“[w]hile we jettison the requirement that a party or a lawyer retype their name in email to show subscription, that does not mean that every email purporting to settle a dispute will be unassailable evidence of a binding settlement.”  Matter of Phila. Ins. Indem. Co., 2021 NY Slip Op 04284, *4.  First, an email from an attorney’s account is presumed to be authentic, but that is a rebuttable presumption.  Id.  Second, an email settlement must, like all enforceable settlements, set forth all material terms. Id.

What are the Takeaways?

According to the First Department, the Court of Appeals has not opined on whether emails can satisfy CPLR 2104.  Matter of Phila. Ins. Indem. Co., 2021 NY Slip Op 04284, *2.  Until such time it does, make sure you type (or retype) your name at the end of the settlement stipulation email even if you have a prepopulated contact block; remember that intentionally transmitting an email containing the material terms of the agreement will likely determine that the settlement was subscribed for purposes of CPLR 2104; and be sure to update the arbitrator (or the court) when you are continuing settlement negotiations while a decision is pending.

 

 

As we settle into the new “normal”, the body of case law concerning commercial rent defaults during the COVID-19 pandemic continues to grow. This blog discusses just some of those cases as they relate to commercial tenants’ reliance on impossibility of performance as a defense to paying rent under their leases because of COVID-19 related economic downturns.

One such recent decision was rendered by Hon. James P. McCormack, J.S.C. (Supreme Court, Nassau County), in C&B Realty #3, LLC v. Sunstar Salon Services, Inc., d/b/a Cactus Salon, et al. (Index No. 613285/2020) on a commercial-landlord’s motion for: (1) summary judgment on the issue of defendants’ liability for breach of the lease; and (2) summary dismissal of the defendants’ counterclaim for a judgment declaring that they were excused from their monetary obligations under the lease and guaranty based on the doctrine of impossibility of performance (among others) for the period March 2020 through the end of all restrictions on their operating capacity.

We all remember that Governor Cuomo’s Executive Order 202.7 forced non-essential businesses, such as hair salons, like C&B Realty #3’s tenant, Sunstar, to close (effective March 21, 2020).  It was not until June 2020 that the salon was authorized to re-open at a limited capacity, and with the added expense of extra cleaning and sanitizing protocols.  The salon made some partial payments after re-opening but did not pay according to the terms of the lease.  Thus, in November 2020, C&B Realty #3 (the “Landlord”) commenced its breach of contract action against the hair salon tenant and the personal guarantor of the lease based on the tenant’s default on its obligations to pay rent since March 2020.  The Landlord’s motion followed.

In its decision, Judge McCormack cited a decision from the New York Supreme Court in Cab Bedford LLC v. Equinox Bedford Ave, Inc., 2020 N.Y. Slip Op. 34296(U) (Sup. Ct., N.Y. Cty. Dec. 22, 2020) (Bluth, J.) as the most relevant case the court could find, which involved a commercial landlord suing its gym tenant for breach of the parties’ lease.  There, the gym argued, among other things, that the COVID-19 pandemic rendered it impossible for the gym to pay its rent obligations under the lease since they were shut down.  Judge Bluth disagreed, finding that the doctrine of impossibility “has no applicability here and does not raise an issue of fact.  Defendants ran an ‘upscale gym’ for many years prior to the Covid-19 pandemic and, after some painful months, are not permitted to operate (although at a limited capacity).  The subject matter of the lease was not destroyed.  At best, it was temporarily hindered. That there are more hurdles to running the business is not a basis to invoke the impossibility doctrine.” Cab, 2020 N.Y. Slip Op. 34296(U) at *5.

Judge McCormack discussed another decision reached by Judge Bluth (on a motion for summary judgment) in 35 East 75th Street Corp. v. Christian Louboutin L.L.C., 2020 N.Y. Slip Op. 34063(U) (Sup. Ct., N.Y. Cty. Dec. 9, 2020) (Bluth, J.), where she found that the subject matter of the contract, the physical location of the retail store, was still intact and the tenant (a retail store) was able to sell its products. “The issue is that it cannot sell enough to pay the rent.  That does not implicate the impossibility doctrine.” 35 E. 75th St. Corp., 2020 N.Y. Slip Op. 34063(U) at*5.  Judge Bluth also noted that the lease contained a force majeure clause that specifically provided that the tenant would not be excused from having to pay rent, therefore contemplating financial disadvantage.  Instead, it purported to extend the period of performance for whatever the delay may have been.  See id.

Still, Judge McCormack felt that the case before him was different from the cases before Judge Bluth.  The C&B lease contained the following provision: “Subject to the limitations herein set forth, the Demised Premises shall be used solely as a first class, high quality hair salon and for no other use or purpose whatsoever . . . . ”  In the court’s view, this provision meant that the tenant did not just rent the space, but they rented the space with the requirement that it only run a hair salon out of it.  Due to the Executive Order’s prohibition on operations, from March until June 2020, it was impossible for the tenant to operate its hair salon, which was the only permissible use of the space under the lease.  However, once the tenant could operate the salon at 50% capacity in June 2020, its operations were no longer impossible although they may have been extremely difficult. “The impossibility of performance doctrine does not apply to ‘extremely difficult.’” Judge McCormack granted the Landlord’s motion for summary judgment on the issue of liability except for the months of March – June 2020. As to that period, Judge McCormack ruled that there were issues of fact requiring a trial as to the tenant’s impossibility of performance defense.

Another case that comes to mind is Ten W. Thirty Third Assoc. v. A Classic Time Watch Co., Inc., where on a motion to dismiss Judge Bluth held that a decline in a tenant’s business (a watch company) “does not constitute frustration of purpose or render its performance under the contract as impossible” and the court “cannot just rip up a contract because a tenant faced financial hardship due to the pandemic”.  Ten W. Thirty Third Assoc. v. A Classic Time Watch Co., Inc., 2021 N.Y. Misc. LEXIS 1589, 2021 NY Slip Op 31137 (U) (Sup. Ct., N.Y. Cty. April 9, 2021) (Bluth, J.).

It also appears that Judge Bluth considered the impact of the pandemic on landlords in her decision, stating that:

“[t]he Court recognizes that the pandemic has decimated businesses around Manhattan and throughout the country. But that does not mean that the Court can ignore defendants’ obligations. The Court must also consider the rights of the other contracting party, which must still maintain buildings and pay taxes even though the Tenant has not paid rent for months….” Id. at *3.

These decisions, as well as others, should continue to remind landlords and tenants that the terms they negotiate as part of their lease are crucial to their legal rights and remedies.  Further, in this “new” world, landlords and tenants alike should, moving forward, consider how to mitigate their damages and account for pandemics and stay-at-home orders in their leases.  However, this will come at a price and concessions will be needed on both sides.