Happy Friday. I hope and trust this e-mail continues to find you and your families healthy, safe, and looking forward to the weekend.
Thursday evening, Governor Andrew Cuomo issued his twenty-ninth Executive Order during this state of emergency. As with all previous Executive Orders, Executive Order 202.28 modifies or suspends certain New York statutes, laws, codes, rules and regulations, as well as sets forth certain directives, all of which are designed to address matters related to the COVID-19 crisis. Executive Order 202.28 is effective from May 7, 2020 through June 6, 2020.
Executive Order 202.28 continues the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order up to, and including, Executive Order 202.14, for thirty days until June 6, 2020. Critically, and perhaps a sign that the state of emergency may be easing up, Executive Order 202.28 also restores to their full force and effect certain New York statutes, regulations and codes that had been modified or suspended under prior Executive Orders. A copy of Executive Order 202.28 can be found here.
Extension of Eviction/Foreclosure Moratorium through August 19, 2020
- One issue that has gotten a significant amount of attention during the COVID-19 crisis has been the challenge New Yorkers are facing in paying rent or making mortgage payments. A number of federal, state and local elected officials, as well as several advocacy groups, have called for a variety of relief for renters and homeowners, including the suspension of rent and mortgage payments during this emergency. Governor Cuomo previously sought to address this issue in Executive Order 202.08, in which he directed that there would be no enforcement of either an eviction of any tenant residential or commercial, or a foreclosure of any residential or commercial property until June 20, 2020.
- Pursuant to Executive Order 202.28, this eviction/foreclosure moratorium has been extended through August 19, 2020. As per Executive Order 202.28’s directive, there can be no initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage, for nonpayment of such 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 for a period of sixty days beginning on June 20, 2020. The directive, however, does not suspend any obligation to make a rental payment or mortgage payment when due.
Memorialization of School Closure Announcement
- Governor Andrew Cuomo closed all New York State schools pursuant to Executive Order 202.4. This closure order had been amended as well as extended under certain other Executive Orders, the most recent having been Executive Order 202.18 which extended the closure until May 15, 2020. At his May 1, 2020 briefing, Governor Cuomo announced the closure of all New York Schools through the balance of the academic school year. Executive Order 202.28 contains the directive memorializing such closure and requires school districts to continue plans for alternative instructional options, distribution and availability of meals, and child care, with an emphasis on serving children of essential workers.
- Critically, there is no indication yet of whether New York public or private schools will return to on-campus learning for the fall, or more pressing, what will happen with sleepaway and day camps in the summer.
SUPENDED OR MODIFIED LAWS
As with all prior executive orders, Executive Order 202.28 also suspends or modifies certain laws, codes, rules and regulations to aid in New York’s efforts to combat the COVID-19 crisis this time through June 7, 2020. The laws modified or suspended under Executive Order 202.28 grant additional relief to renters, provide clarification to the absentee voting procedures in the upcoming June 23rd elections and suspend certain time limits under New York criminal procedure laws. Executive Order 202.28, by modifying or suspending the applicable laws, codes, rules and regulations, to the extent necessary:
Use of Security Deposit as Rent/Permit Rental Security Insurance Alternative
- Provides that landlords and tenants or licensees of residential properties may, upon the consent of the tenant or licensee, enter into a written agreement by which the security deposit and any interest accrued thereof, shall be used to pay rent that is in arrears or will become due. If the amount of the deposit represents less than a full month rent payment, this consent does not constitute a waiver of the remaining rent due and owing for that month. Execution in counterpart by email will constitute sufficient execution for consent;
- Requires that landlords provide this relief to tenants or licensees who so request it that are eligible for unemployment insurance or benefits under state or federal law or are otherwise facing financial hardship due to the COVID-19 pandemic;
- Maintains that it is at the tenant or licensee’s option to enter into such an agreement and landlords shall not harass, threaten or engage in any harmful act to compel such agreement; and
- Provides that any security deposit used as a payment of rent shall be replenished by the tenant or licensee, to be paid at the rate of 1/12 the amount used as rent per month. The payments to replenish the security deposit shall become due and owing no less than 90 days from the date of the usage of the security deposit as rent. The tenant or licensee may, at their sole option, retain insurance that provides relief for the landlord in lieu of the monthly security deposit replenishment, which the landlord must accept such insurance as replenishment.
Suspension of Fees and Penalties for Late Rent
- Provides that no landlord, lessor, sub-lessor or grantor shall demand or be entitled to any payment, fee or charge for late payment of rent occurring during the time period from March 20, 2020, through August 20, 2020.
- Requires that to the any absentee application mailed by a board of elections due to a temporary illness based on the COVID-19 public health emergency may be drafted and printed in such a way to limit the selection of elections to which the absentee ballot application is only applicable to any primary or special election occurring on June 23, 2020, provided further that for all absentee ballot applications already mailed or completed that purported to select a ballot for the general election or to request a permanent absentee ballot shall in all cases only be valid to provide an absentee ballot for any primary or special election occurring on June 23, 2020. All Boards of Elections must provide instructions to voters and post prominently on the website, instructions for completing the application in conformity with this directive.
Criminal Procedure Law
- Suspends the prohibition of the use of electronic appearances for certain pleas;
- Provides that (a) all parties’ appearances at the hearing, including that of the defendant, may be by means of an electronic appearance; and (b) the Court may, for good cause shown, withhold the identity, obscure or withhold the image of, and/or disguise the voice of any witness testifying at the hearing pursuant to a motion under Criminal Procedure Law (“CPL”) §245.70 — provided that the Court is afforded a means to judge the demeanor of a witness;
- Requires that a court must satisfy itself that good cause has been shown within one hundred and forty-four hours from May 8, 2020 that a defendant should continue to be held on a felony complaint due to the inability to empanel a grand jury due to COVID-19, which may constitute such good cause pursuant to Criminal Procedure Law §180.80(3); and
- Requires that a court must satisfy itself that good cause has been shown that a defendant should continue to be held on a felony complaint beyond forty-five days due to the inability to empanel a grand jury due to COVID-19, which may constitute such good cause pursuant to subdivision b of such section provided that such defendant has been provided a preliminary hearing as provided in CPL §180.80.
RESTORATION OF LAWS, REGULATIONS AND CODES
Executive Order 202.28 discontinues the suspension and modification of certain laws and regulations that had occurred in previously issued Executive Orders. Pursuant to Executive Order 202.28, the following statutes, codes and regulations are in full force and effect as of May 8, 2020, subject to certain noted exceptions:
- Mental Hygiene Law §§41.34; 29.11; and 29.15;
- Public Health Law §§3002, 3002-a, 3003, and 3004-a to the extent it would have allowed the Health Commissioner to make determination without approval by a regional or state EMS board; and
- Education Law §§6527(2); 6530(32), 6545 and 6909(1).
- 10 NYCRR 405.9, except to the limited extent that it would allow a practitioner to practice in a facility where they are not credentialed or have privileges, which shall continue to be suspended;
- 10 NYCRR 400.9; 10 NYCRR 400.11, 10 NYCRR 405; 10 NYCRR 403.3; 10 NYCRR 403.5;
- 10 NYCRR 800.3, except to the extent that subparagraphs (d) and (u) could otherwise limit the scope of care by paramedics to prohibit the provision of medical service or extended service to COVID-19 or suspected COVID-19 patients;
- 10 NYCRR 400.12; 10 NYCRR 415.11; 10 NYCRR 415.15; 10 NYCRR 415.26;
- 14 NYCRR 620; 14 NYCRR 633.12; 14 NYCRR 636-1; 14 NYCRR 686.3; and 14 NYCRR 517;
- 8 NYCRR 29.2(a)(3); and
- 10 NYCRR 58-1.11; 10 NYCRR 405.10; 10 NYCRR 415.22.
- All codes related to construction, energy conservation, or other building code, and all state and local laws, ordinances, and regulations which would have otherwise been superseded, upon approval by the Commissioner of the Office of People With Developmental Disabilities, as applicable only for temporary changes to physical plant, bed capacities, and services provided; for facilities under the OPWDD Commissioner’s jurisdiction, as applicable only for temporary changes to physical plant, bed capacities, and services provided; for facilities under the Commissioner’s jurisdiction.