Coronavirus Pandemic NYC - Frequently Asked Questions From NYC Landlords
As we all stand united in the face of the unprecedented challenges posed by the coronavirus (COVID-19), we want to assure you of Kucker Marino Winiarsky & Bittens’s commitment to serving our clients with the unwavering support you have come to expect from our firm. To keep you informed, we have added this question and answer page that addresses topics of interest on key developments in areas of the law critical to you at this time.
Q: Is Housing Court still open?
Housing Court is only open to hear “essential” matters, loosely defined as: newly filed post-eviction motion, a newly filed illegal lockout or a newly filed issue relating to lack of heat, hot water, gas and mold. As a result of this, there are thousands of housing court proceedings that are just being held in abeyance without any resolution in their respective regard. These matters are all being adjourned to May 2020.
Q: What types of proceedings are permitted to be filed in New York City Civil Court/Housing Court during the moratorium currently in effect?
According to the Administrative Order of the Chief Administrative Judge of the New York Unified Court System, dated March 22, 2020 (http://nycourts.gov/whatsnew/pdf/AO-78-2020.pdf), New York City Civil Housing Court will accept no filing unless the filing relates to an application addressing: (i) landlord lockouts (including reductions in essential services); (ii) serious code violations; (iii) serious repair orders; or (iv) post-eviction relief.
Q: Although housing court is only hearing “essential” matters, what should I do if a tenant is not paying rent or is violating a non-monetary obligation of his/her tenancy?
We are advising landlords to, at least, continue serving statutory predicate notices (notice to cure/notice of termination/rent demands) so that, once the moratorium is lifted, landlords are in the best position to move forward expeditiously.
Q: During the time in which Court has suspended functions due to COVID -19, can commercial businesses still be served Default Notices, Rent Demands, Holdover Predicate Notices, or Petitions?
Given the fact that many businesses have either been forced to close or have voluntarily closed to prevent the spread of Covid-19, it may be difficult to effectuate service of process on commercial tenants. Unless you have a strong belief that the business is open and a process server will be able to serve personally, alternative means of service may not constitute sufficient service during these times. Notwithstanding, five-day notices of non-payment, as opposed to an actual rent demand, should be sent every month by certified mail without exception.
Q: What type of actions are permitted to be filed in New York State Supreme Court during the moratorium currently in effect?
According to the Administrative Order of the Chief Administrative Judge of the New York Unified Court System, dated March 22, 2020 (http://nycourts.gov/whatsnew/pdf/AO-78-2020.pdf) Supreme Court will accept no filing unless the filing relates to: (i) Mental Hygiene Law applications and hearings addressing patient retention or release; (ii) Mental Hygiene Law hearings addressing the involuntary administration of medication and other medical care; (iii) newly filed Mental Hygiene Law applications for an assisted outpatient treatment plan; (iv) emergency applications in guardianship matters; (v) temporary orders of protection (including, but not limited to, matters involving domestic violence); (vi) emergency applications related to the Coronavirus (COVID-19); (vii) emergency Election Law applications; and (viii) extreme risk protection orders.
Q: Are statutes of limitations being tolled?
New York Governor Andrew Cuomo signed Executive Order 202.8, dated March 20, 2020, extending the expiration of statutes of limitations through April 19, 2020 (https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.8.pdf).
Q: Is the Loft Board open and are Loft Law deadlines still in effect?
At this time the Loft Board is open. Additionally, the Loft Board staff is taking the position that the Governor’s executive order staying procedural deadlines does not apply to the Loft Law. As such, owners of building subject to the Loft Law must continue to comply with all Loft Law requirements and statutory target dates for legalization. Please contact Jason Frosch ([email protected]) to discuss strategies for protecting your building from a finding of non-compliance due to delays caused by the pandemic.
Q: Is DHCR extending deadlines on pending administrative matters?
According to an Advisory Opinion issued on March 24, 2020, all Agency matters that are not final as of March 13, 2020, are extended, for the purposes of filing submissions, by thirty (30) days. This includes:
- Any time provided by ORA notice, bulletin, or regulation to respond to or file any application or administrative proceeding.
- Any time to otherwise file what would have been, as of the effective date of this opinion, a timely petition for administrative review (PAR) from an order of an ORA rent administrator.
- Any time provided to respond to an individualized TPU investigation into a single apartment review will be extended, unless TPU otherwise expressly requests a response after the issuance of this Advisory opinion.
- All Agency hearings, conferences, and continuances of those hearings and conferences are postponed. Parties will be advised of a subsequent rescheduled date which may include alternative means to hold those hearings and conferences.
- Public requests for documents under the Freedom of Information Law (FOIL) may continue to be filed online at gov. All records access requests, by owners, tenants, and authorized representatives, may continue to be filed through email at [email protected] but not in person.
DHCR advises monitoring their website for any updates. https://hcr.ny.gov/
Q: Are DHCR building/unit inspections being rescheduled?
At this time, DHCR has not provided directive on currently scheduled building and/or unit inspections. It is advised that you contact the inspector listed on your “Notice of Inspection” by phone for further information.
Q: What is a landlord’s obligation to advise other tenants in a building in which a tenant tested positive for COVID-19?
It’s our position that landlords do not have an affirmative legal obligation to advise tenants about another tenant testing positive for COVID-19. In this regard, advising a group of people (in this case, a group of tenants) of another person’s (in this case another tenant) positive diagnosis may violate HIPPA laws. Landlords should discuss these matters, on a case by case basis, with their insurance carriers to determine what exposure they may have in the event that a tenant in their building tests positive for COVID-19.
Q: How should we be handling restaurant Lease commencement dates considering in NYS Governor Cuomo as of March 16th has mandated that restaurants and bars will be allowed to continue take-out service only?
We encourage businesses to continue to sign Leases; there may be some Tenants attorney advising their clients to have clauses that allow for subsidized rents during the next few weeks/months since service to the general public is not permitted. It is important that any period of reduced rent be carefully described in the lease as to amount and duration.
Q: Due to the pandemic many people are now working at home and now Landlords and managing agents have started to see an increase in noise complaints. How should a landlord balance the needs of the tenants who are working from home against the needs of the tenants who may have enjoyed relative silence during the day because the other tenants were at work?
As Paul Simon sang “One man’s ceiling is another man’s floor.” Quality of life issues, such as excessive noise, are always a difficult issue for landlords. We recommend trying to de-escalate the situation and to negotiate a solution that accommodates the tenants’ need to work from home, while protecting the other tenants from unreasonable amounts of noise. Remind the tenants that everyone needs to try hard to be accommodating to the needs of others and that this too will pass. The more we can work together, the better off we will be to face the serious challenges ahead of us