The New York City Department of Buildings announced that starting Wednesday, July 8, 2020, it would resume issuing violations and penalties of $5,000.00 per violation with the potential for a Stop Work Order for sites which do not comply with the New York State Phase One Reopening procedures. Continued non-compliance will result if penalties of up to $10,000 for each offense and are more likely to receive a Stop Work Order. This change was previously announced, and comes from the existing policy, began June 8, 2020, when non-essential, non-emergency work was permitted to resume in New York City. Until July 8, 2020, the Department’s write-ups were strictly advisory.

The Department also specifically highlighted that it would issue a Stop Work order if the Safety Plan and State Affirmation of compliance with reopening requirements were not conspicuously displayed or if the site lacks a property handwash/hygiene station. Specifics of what is required can be found in the Construction Master Guidance, the “Dos and Don’ts”, and the What to Know documents.

Finally, while you must ensure the health of your own construction site personnel, Department inspectors are required to continuously self-monitor for COVID symptoms and must be permitted access to a site. Preventing their access will result in a Stop Work Order.


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

On Monday, June 8, 2020, unrestricted construction resumed in New York City. Even projects considered non-essential or otherwise exempted can restart. However, this does not mean that a project can simply forge ahead without thought or consideration. The State of New York , the New York City Department of Buildings, the Occupational Safety and Health Administration, and the Centers for Disease Control all have various requirements and guidelines for site safety in order to help prevent the spread of COVID-19 on construction sites.

Prior to reopening, all businesses operating in New York State must complete and submit the Business Affirmation form confirming that the business owner has read the updated guidelines and will comply.

What exactly is and is not permissible is not always clear. With that in mind, the NYC DOB will focus on education and counseling in the first 30 days of Phase One reopening. The DOB will still issue violations, but they will carry no penalty – however, further non-compliance may result in Stop Work orders and summonses with penalties up to $5,000.00 per violation. The DOB inspections will determine compliance with State guidance, including:

  • Compliance with social distancing protocols. Six feet of distance should be observed between all personnel, unless safety or work functions require shorter distance.
  • Anyone on site, including workers, other construction professionals, and approved visitors, who are less than six feet apart must wear face coverings. Maintaining this practice at all times is highly encouraged.
  • Readily available hygiene and hand washing stations.
  • COVID-19 safety measures signage visible to workers, reminding everyone to adhere to all safety protocols while on site, including proper hand hygiene, physical distancing rules, appropriate use of personal protective equipment, and cleaning and disinfecting protocols.
  • Tightly confined spaces (e.g., elevators, hoists) occupied by only one individual at a time, unless all occupants are wearing a face covering and the space is kept under 50% maximum capacity.
    • 50% capacity signage must be posted within the cab and at each landing.
  • A site safety monitor must be designated. The role’s responsibilities include continuous compliance with all aspects of the site safety plan.
  • Safety plan(s) are conspicuously posted on site and include a copy of the submitted State affirmation.
  • Properly completed and updated cleaning and disinfection logs.
  • A communication plan for employees, visitors, and clients is on site.
  • Correctly completed and updated logs of every person who may have had close contact with others on site to ensure effective contact tracing.

Additional resources can also be found here:

OHSA COVID-19 Control and Prevention

OSHA ALERT – COVID-19 Guidance for the Construction Workforce

CDC Interim Guidance for Businesses and Employers

NYC DOB Bulletin 2020-10

NYC DOB Phase One Frequently Asked Questions

 


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

 

On May 31, 2020, following Governor Andrew Cuomo’s issuance of Executive Order 202.35 on Friday, May 26, 2020, New York’s Empire State Development (“ESD”) updated its guidelines for construction projects across the state.

Construction is a Phase One industry, and while certain parts of the State have already entered Phase One of recovery/reopening, New York City and much of the southern portion of the State has not yet met the criteria to begin reopening beyond “essential” construction activities. The ESD’s updated guidelines do not change the definition of “essential,” but now permit certain on-site staging activities in anticipation of a broader construction reopening. Last week, Governor Cuomo anticipated June 8, 2020 for a full, statewide construction reopening.

Personnel are permitted on-site for the following staging and preparation activities:

  • Clean, sanitize, and/or disinfect common and work areas;
  • Test run hoists, elevators, cranes, and other equipment;
  • Establish new and multiple entrances/exists to control the movement of personnel and allow for health screening, including temperature taking;
  • Install hand hygiene/wash stations or retrofit existing ones with touchless faucets and dispensers;
  • Install health screening stations or devices at entrances;
  • Affix social distancing, hygiene, and cleaning/disinfection signage, including posters, markers, and directional arrows;
  • Deliver and stockpile personal protective equipment (e.g. face coverings, face shields, gloves); and
  • Order, unload, and rough set materials that specialty contractors or subcontractors need to perform work (e.g. structural supports, piping, conduits, drywall).

Additionally, every business, even those already operating as essential under the ESD’s guidelines, must prepare a Safety Plan in line with the template found here. While this Safety Plan does not need to be filed with any state or local agency, it must be kept on premises in case of Department of Health or local health/safety authority inspection.

 


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

As the COVID-19 (Coronavirus) pandemic continues to have devastating effects on our nation’s economy, particularly for small businesses and restaurants struggling to make ends meet and stay afloat, relief has become available for certain personal guarantors of NYC commercial leases.  On May 26, 2020, Mayor Bill de Blasio signed into law Section 22-1005 of the NYC Administrative Code, which prohibits the enforcement of personal liability provisions in commercial leases involving COVID-19 impacted tenants.

Pursuant to Section 22-1005, a personal liability provision in a commercial lease providing for one or more individuals who are not the tenant under the lease to be wholly or partially personally liable for payment of rent, utility expenses, taxes owed, or fees and charges related to routine building maintenance, upon the occurrence of a default or other event under the agreement, shall not be enforceable against such individuals if the following two conditions are satisfied:

(1) The tenant satisfies the conditions of subparagraph (a), (b) or (c):

(a) The tenant was required to cease serving patrons food or beverage for on-premises consumption or to cease operation under executive order number 202.3 (closed all on-premises activities at restaurants and bars) issued by the governor on March 16, 2020; or

(b) The tenant was a non-essential retail establishment subject to in-person limitations under guidance issued by the New York state department of economic development pursuant to executive order number 202.6 (reduced in-person workforce at any work locations by 50%) issued by the governor on March 18, 2020; or

(c) The tenant was required to close to members of the public under executive order number 202.7 (closed all barbershops, hair salons, tattoo or piercing parlors and related personal care services) issued by the governor on March 19, 2020.

(2) The default or other event causing such individuals to become wholly or partially personally liable for such obligation occurred between March 7, 2020 and September 30, 2020, inclusive.[1]

Accordingly, the passage of this new section of the NYC Administrative Code allows individuals who are guarantors for COVID-19 impacted businesses including, but not limited to, restaurants and bars, gyms, retail stores, and barbershops to breathe a sigh of relief, at least for now,[2] during these uncertain times.

[1] We have not as of yet seen any guidance addressing whether a default existing before March 7, 2020 and continuing thereafter would satisfy the condition set forth in this paragraph.

[2] Constitutional challenges to Section 22-1005 are likely to arise, particularly concerning whether such an exercise of the State’s police power is reasonable and appropriate.


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

From the start of the unprecedented closure of the New York State Courts to new, “non-essential” filings until yesterday, commercial tenants had no remedy against a landlord seeking to terminate a lease as a result of a covenants or payment default.  The so-called Yellowstone Injunction, named after a 1968 Court of Appeals case, has protected tenants served with a notice of termination for over 50 years by preserving the status quo and staying any cure period, thereby giving tenants an opportunity to litigate the propriety of any alleged default before the lease was terminated.  Because once terminated a lease cannot be revived, tenants relied on this widely used and often granted injunction to preserve their interest in the leased premises.

Administrative Order 78/20 (AO/78/20), however, which remains in effect and which bars the submission of any “non-essential” new filings, was silent as to whether Yellowstone applications were considered “essential.”  As such, tenants effectively were precluded from seeking Yellowstone relief.  This is in stark contrast to Executive Order 202.8, which bars eviction proceedings, but did not bar lease terminations.  In essence, tenants were therefore forced to sit and watch their lease terminate, and hope that once the Courts open up, they would be able to seek relief from a terminated lease, despite longstanding caselaw to the contrary.

Yesterday, however, the Supreme Court, New York County, permitted the filing of an application for a Yellowstone Injunction. In Philippe MP LLC v. Sahara Dreams, LLC (no index number assigned), the Plaintiff, a restaurant in Defendant/landlord’s hotel, requested “essential” filing status for its application for a Yellowstone Injunction.  Specifically, the restaurant argued that as a result of the various Executive Orders prohibiting restaurants from offering table service, it was forced to lay off employees and cease operations.  As a result, the restaurant argued that the “casualty” clause in its lease was triggered, its rent was abated, and thus the amount the landlord sought in its notice to cure was defective rending the notice itself a nullity.

In its affidavit seeking “essential” filing status, the restaurant cited both its inability to operate, and also the potential hypocrisy created by the ban on evictions, without a corresponding moratorium of lease terminations.  The Hon. Lynn R. Kotler agreed, and deemed the filing essential.  As of the date and time of this publication, the request for a temporary restraining order has not been decided either way, but, at a minimum, the tenant was able to get into the Courthouse.  We will continue to monitor the progress of this case and update this article accordingly.


As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.