Category Archives: covid alerts

New York State Public Hearing Changes Amid the Coronavirus Crisis

Governor Cuomo signed Executive Order 202.15 (E.O. 202.15) on April 9, 2020 with provisions pertaining to public hearings and certain public hearing requirements in response to the COVID-19 Pandemic. E.O. 202.15 is the latest in a string of Executive Orders intended to balance the needs of public safety and continued economic growth throughout the state.

Public Hearings To Be Held Remotely or Postponed Until June 1, 2020

E.O. 202.15 orders that any local government which has a public hearing scheduled to take place in April or May of 2020 may hold such public hearing remotely, through use of telephone conference, video conference, and/or other similar service. Otherwise, E.O. 202.15 requires that public hearing to be postponed until June 1, 2020. This order comes at a time where more and more municipalities are transitioning to such virtual or remote platforms to conduct public meetings. During this transition, Cuddy & Feder LLP continues to provide continued, quality legal service by staying up-to-date on the technology used as well as the implications these platform changes have on the legal aspects pertaining to the land use entitlement process.

Effects on Environmental Review

E.O. 202.15 also suspends the requirement for public hearings required by certain state statutes and regulations provided that public participation requirements can be met by accepting public comments electronically or by mail. Of note is the E.O. 202.15’s suspension of the requirement for public hearings under the New York State Environmental Conservation Law (ECL) Article 8. While ECL Article 8 is the enabling statute governing the regulations commonly referred to as the State Environmental Quality Review Act or SEQRA (6 NYCRR 617), E.O. 202.15 does not explicitly suspend public hearings required under the SEQRA regulations. Public hearings required by the SEQRA regulations should be held remotely when possible or postponed until June 1, 2020.

Updated: Executive Orders on Remote Notarization Will Facilitate Wills, Trusts and Other Needed Documents

Updated September 14, 2020

Among many things, the COVID-19 pandemic has brought to the fore the need to have important personal documents in place and updated, such as wills, trusts and health care proxies. At the same time, social distancing protocols have made in-person notarization of such documents difficult, if not impossible. For these reasons, New York State Governor Andrew Cuomo has issued a series of executive orders temporarily allowing remote notarization.

New York Remote Notarization

Gov. Cuomo issued Executive Order No. 202.7 on March 19, 2020, and the Guidance to Notaries Concerning Executive Order 202.7 on March 31, 2020, concerning remote notarization. The Executive Order authorized remote notarization through April 18, 2020, by a New York Notary Public. This Order was extended through May 7, 2020, by Executive Order 202.14 and then extended further to June 6, 2020 by Executive Order 202.28. The Order was again extended through July 6, 2020 by Executive Order 202.38 and again to August 5, 2020 by Executive Order 202.48. More recently, Executive Order 202.55 extended remote notarization until September 4, 2020 and then to October 4, 2020 by Executive Order 202.60. The Notary Public can use Audio-Video Technology to effectively notarize a document as an alternative to the in-person requirement for an individual in New York. Once the document is notarized, the individual must electronically transmit or fax the executed document to the Notary Public that same day. Unlike Connecticut’s similar law, New York does not require the transaction to be recorded.

Execution of Will, Lifetime Trust, Power of Attorney Statutory Gift Rider, Health Care Proxy, and Form of Disposition of Remains

Executive Order No. 202.14, issued on April 7, 2020, provides for remote witnessing using Audio-Video Technology. The Witnesses can use Audio-Video Technology to effectively witness a document as an alternative to the in-person requirement. Once the document is witnessed, the individual must electronically transmit or fax the executed signature page to the Witnesses that same day. This rule was in place through May 7, 2020 but then extended further to June 6, 2020 by Executive Order 202.28. The Order was again extended through July 6, 2020 by Executive Order 202.38 and again to August 5, 2020 by Executive Order 202.48. More recently, Executive Order 202.55 extended remote execution until September 4, 2020 and then to October 4, 2020 by Executive Order 202.60.

Guardianship

Executive Order No. 202.14 also provides that a parent, legal guardian, legal custodian, or primary caretaker who works or volunteers in a health care facility or who reasonably believes that they may otherwise be exposed to COVID-19 can designate a standby guardian to care for his or her child in the event of death or incapacity.

Judges Expand Matters to be Addressed in New York State’s Virtual Courts

As the country adapts to life during the COVID-19 pandemic, so do the New York State trial courts.

New York State courts have been addressing emergency, or “essential,” matters virtually, allowing counsel and the parties to appear before the Court either by phone or videoconference. Beginning Monday, April 13, New York State trial courts will begin handling certain pending “non-essential” actions and proceedings via the virtual court system as well.

While the courts will, for the time being, still prohibit filing of new “non-essential” cases, individual judges will review their existing caseloads and decide which cases should be conferenced and which can be moved toward a resolution. Judges are also permitted to schedule conferences at the request of attorneys, and are now available during normal court hours to address discovery and other concerns. These conferences will continue to be held remotely.

Additionally, judges may now decide fully submitted motions, which will hopefully serve to both reduce backlogs and facilitate speedier resolution of the likely high volume of motion practice that will commence once the prohibition on new “non-essential” filings is lifted.

We will continue to provide updates on access to the court system during this unparalleled period in our history.

Updated: Connecticut Authorizes Remote Document Execution During COVID-19

Updated June 25, 2020

In response to the COVID-19 pandemic, Connecticut Governor Ned Lamont issued Executive Order No. 7K on March 23, 2020 concerning remote notarization. This Order was then amended by Executive Order 7Q on March 30, 2020. The new Executive Order provided in part that remote notarization is authorized through June 23, 2020 by either a Connecticut Notary Public or a Connecticut Commissioner of the Superior Court. Executive Order 7ZZ issued on June 16, 2020 extended remote notarization “for the duration of the public health and civil preparedness emergency.” The Notary Public or Commissioner can use Communication Technology to effectively notarize a document as an alternative to the in-person requirement for an individual in Connecticut. Once the document is notarized, the individual must electronically transmit or fax the executed document to the Notary Public/Commissioner that same day. A main difference in the Connecticut law from New York State’s similar law, is that the transaction must be recorded and the Notary Public/Commissioner must keep the recording for 10 years.

Will Execution

Executive Order No. 7Q also provided that an attorney admitted to practice in Connecticut may remotely administer a self-proving affidavit at the end of a Will. This Order also allowed for remote witnessing using Communication Technology if the Will signing is supervised by a Commissioner who certifies that the Commissioner has done so. This rule is in place through June 23, 2020. However, Executive Order 7ZZ extended this rule “for the duration of the public health and civil preparedness emergency.”

Witnessing Requirements for Estate Planning Documents Other Than a Will

Executive Order No. 7Q waived all witness requirements on any document that also requires notarization. This waiver does not apply to a Will. This waiver is also in place through June 23, 2020. However, Executive Order 7ZZ extended this waiver “for the duration of the public health and civil preparedness emergency.”

Gift Tax Returns

The Connecticut Department of Revenue Services has extended the filing and payment deadline for 2019 gift tax returns (Form CT-706/709) from April 15, 2020 to July 15, 2020 just as the IRS did for Federal Gift Tax Returns (Form 709).

Municipal Building Inspectors are Essential Under NY Covid-19 Executive Orders

Cuddy & Feder LLP continues to closely monitor state and federal responses to the outbreak of COVID-19 pertaining to the land use, zoning, development, and telecommunications fields. The New York State Department of State, Division of Building Standards and Codes “Guidance for Code Enforcement Personnel Relating to the Governor’s Executive Orders During the COVID-19 Public Health Emergency was released April 4, 2020 (Guidance for Code Enforcement Personnel). The Guidance for Code Enforcement Personnel summarizes and clarifies several provisions from New York’s COVID-19 Executive Orders (E.O.) that relate to building and code enforcement.

Below are a few key points highlighted in the Guidance for Code Enforcement Personnel:

Code Enforcement Officers are “essential”

E.O. 202.4 tasks municipalities with determining which personnel are “essential” and therefore exempt from personnel restrictions. The Department of State confirms that code enforcement personnel “should be deemed essential.” This determination is based on the Empire State Development Corporation’s guidance which includes “building code enforcement” as an essential service and the provisions of E.O. 202.11 whereby code enforcement officers are authorized to enforce E.O. restrictions on occupancy and operations as violations of the Uniform Code or other local building codes. This effectively mandates code enforcement officers to continue operating during this public health emergency, though the Department of State recommends the use of electronic or other remote means, were feasible, to reduce in-person contact.

Legal Citations for Restricted Occupancy and Operations

The guidance specifies the information that should be included within any legal citations (appearance ticket, notice of violation, etc.) issued for violation of an E.O. and provides an example of such citation. The necessary information includes:

notification of the exact nature of the violation; and
proof to the Court that the violation is a violation of an E.O., that the violation is deemed to be a violation of the Uniform Code, and therefore the violating party is subject to the penalties proscribed in the Executive Law.

Essential Construction

The Guidance for Code Enforcement Personnel refers to the provisions of E.O. 202.13 which modifies E.O. 202.6 by indicating that only “certain construction” (rather than merely “construction” as stated in E.O. 202.6) is “essential.” The guidance refers to the Empire State Development Corporation materials for information on what construction is “essential” (i.e. roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters).

Suspension of Code Provisions for Certain Emergency Measures

The Guidance for Code Enforcement Personnel advises that E.O. 202.5 suspends state and local codes, regulations, and laws “to the extent necessary to allow, upon approval by the Commissioner of Heath or the Commissioner of Office for People with Developmental Disabilities, as applicable, the temporary changes to physical plant, bed capacities, and services provided; the construction of temporary hospitals locations and extensions; the increase in and/or exceeding of certified capacity limits; and the establishment of temporary hospital locations.”

COVID-19 Emergency Measures for Retirement Accounts

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was signed into law on March 27, 2020. Among other measures designed to ease the financial burden of the COVID-19 pandemic, this new law changes the way you can access funds from your retirement account.

Background

To understand how this new Act may impact you, we need to first review the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) which was passed on December 20, 2019, and changed the required minimum distribution (RMD) rules for people with IRAs. Under the SECURE Act, if someone reached the age of 70½ in 2019 or earlier, then that person must take the first RMD by April 1, 2020. If a person reaches age 70 ½ in 2020 or later, that person must take the first RMD by April 1 of the year after reaching age 72. In addition to this group of people, other people may be taking RMDs from inherited IRAs. People only need to take an RMD from a 401(k) if they are no longer working or if they are working, but the 401(k) plan is from a previous employer.

Required Minimum Distributions from retirement plans and accounts (like an IRA or 401(k))

Under Section 2203 of the recently passed CARES Act, there is a temporary waiver of RMD rules for this year. Under the Act, anyone who was required to take an RMD in 2020 is no longer required to take the RMD. If a person still wants to take the RMD, however, they may take it.

Withdrawals from retirement funds

In addition to the RMD provisions under the CARES Act, Section 2202 contains rules regarding withdrawals from retirement funds and loans from qualified plans. These rules only apply to individuals diagnosed with SARS or COVID-19, individuals with a spouse or dependent diagnosed with SARS or COVID-19, or individuals who experiences adverse financial consequences because of quarantine, furlough, layoff, reduced work hours, or inability to work due to child care because of SARS or COVID-19.

Such individuals can withdraw up to $100,000 and not be subject to the 10% early withdrawal penalty. Repayment can be made over a three-year period beginning on the date of withdrawal, and the distribution may be taxed over three years instead of entirely in 2020.

Loans from qualified employer plans (like a 401(k))

For those who may wish to take a loan from an employer plan, the maximum amount has been increased from $50,000 to $100,000. Loans can now be taken up to 100 percent of the participant’s vested account balance instead of 50 percent. There is a window of 180 days from enactment of Act to take the loan, and any loan repayments due before December 31, 2020, can be delayed up to one year. These changes apply to any 401(k) plan regardless of whether or not in pay status.

COVID-19: What you Need to Know About Medicaid and Medicare Updates

The COVID-19 pandemic is unprecedented in its scope and challenges. Among those at the highest risk are the elderly and disabled, many of whom have underlying conditions, which make them more susceptible to the effects of infection.

Nursing homes and assisted living facilities are high risk environments because of the enclosed space. And unfortunately, inadequate testing has resulted in staff entering the facilities not being aware of any possible infection.

As a response to these challenges, some changes to Medicaid and Medicare have been made:

Medicaid

Cuts to home-based services – In New York, the Medicaid Redesign Team approved recommendations that may result in severe cutbacks in home-based services. It is too early to tell of the effects of these recommendations, as some may conflict with federal mandates.

Medicare

Restrictions on hospital stay, visitors – On March 13, 2020, the President declared the coronavirus outbreak a national emergency. The Center for Medicare and Medicaid Services (CMS) temporarily eliminated the minimum three-day inpatient hospital stay for persons going into a skilled nursing facility. Additionally, CMS issued guidance prohibiting all non-essential visits to nursing homes, which means that loved ones cannot visit their family members in nursing homes at this time.
Telehealth services – On March 17, 2020, the Health and Human Services Office of the Inspector General issued a policy statement to enable Medicare beneficiaries to use telehealth services for common office visits, mental health counseling, and preventive health screenings. As Medicare beneficiaries are at a higher risk for COVID-19, these people can now consult with doctors from the safety of their homes.
Cost-sharing waiver – On March 18, 2020, the President signed the Families First Coronavirus Response Act. This legislation waives all Medicare beneficiary cost-sharing for COVID-19 testing and any related doctor’s office visit.

In this ever-changing environment, we will continue to keep you updated and are available to advise you as questions arise.

Best Practices for New York State Real Estate Closings During COVID-19

In light of recent events surrounding the outbreak of COVID-19, Cuddy & Feder LLP has been closely monitoring developments in the real estate industry. Since New York State has mandated that all non-essential businesses reduce in-person work forces by 100%, our attorneys have been conducting loan and real estate closings remotely, eliminating the risk of exposure to our community that would be posed by a traditional in-person closing.

The following are a few tips and recommendations for conducting remote loan and real estate closings:

Escrow Closings. With a little advance planning and some coordination, most loan and real estate closings may be conducted remotely with one or more parties agreeing to hold original (or electronically) signed documents in escrow until the closing of the transaction. Ideally, the parties to the transaction should sign at least two originals of the closing documents and then scan the signature pages to the interested parties for their review to ensure that all documents were properly signed. To the extent originals are needed (e.g., promissory note, mortgage or deed), those originals may be sent directly to the residence of the bank attorney or the title closer, as applicable. Funds may be sent via wire transfers. Once all parties confirm they are ready to close, the documents and funds can be released from escrow.
Notaries. NY Executive Order 202.7 temporarily suspended the rule requiring physical appearance before a notary public and authorizes notarization via audio-video technology, which makes it easier to conduct closings in escrow.
Recording. Many county clerk offices are authorized by law to accept electronic copies of deeds and other recordable documents and are continuing to accept documents transmitted electronically for recording at this time.
Title Insurance. Given that many county clerks are accepting documents transmitted electronically for recording, title insurance companies are continuing to issue title policies during this time. A free Policy Authentication endorsement is available, which provides that title insurance coverage will not be denied on the grounds that the policy and endorsements were issued electronically.

For those closings that absolutely must occur in person, please be sure to follow the CDC and NYS Health Department guidelines for ensuring health and safety during this time. Please also be sure to check our website for updates related to the effects of COVID-19 on the real estate industry.

The State of New York Civil Litigation During COVID-19

In the wake of the measures necessitated by the COVID-19 outbreak, new questions arise every day as to how to maintain continuity of essential services. While the provision of health care remains the key priority, there will be a continuing need for people to have access to the courts. To that end, the court system has been carefully striking a balance between the need to safeguard the health of personnel and the general public and ensuring that there is continued access to justice. The solutions implemented by state and federal courts reflect that balance, allowing for parties to be heard on time-sensitive and emergency matters, while relaxing deadlines and restricting filings for matters that do not need to be reviewed on an emergency basis.

The following is a summary of measures taken by the various courts over the past two weeks to provide guidance as to how and when courts can be accessed:

Statutes of Limitations: New York State courts have suspended all statutes of limitations and time limits “for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof…” until April 19, 2020. (Executive Order 202.8.)
Filings: New York State courts will not be accepting for filing any papers for any civil matter, via hard copy or electronically, that is not deemed “essential” (e.g., some Mental Hygiene Law applications, orders of protection, emergency Election Law applications, applications addressing landlord lockouts, serious code violations and repair orders). (Administrative Order 78/20.)
In-Person Appearance: New York State courts are discouraging the prosecution of all civil matters that require travel or in-person appearances, encouraging parties to agree to postpone proceedings due to failure to meet discovery deadlines for up to 90 days (or, if no agreement can be reached, the court will decide to defer proceedings themselves), and removing penalties for failure to comply with discovery deadlines. (Administrative Order 71/20.)
While the provision of health care remains the key priority, there will be a continuing need for people to have access to the courts.

The court system has been carefully striking a balance between the need to safeguard the health of personnel and the general public and ensuring that there is continued access to justice.

Non-essential Matters: In New York State Supreme Civil, Surrogate’s, City, Town and Village courts, all non-essential matters are administratively adjourned until a date on or after April 30, 2020.
Appellate Matters: The New York Appellate Divisions have suspended indefinitely and until further directive of the Court all perfection, filing, and other deadlines set forth by any order or applicable rule.
Evictions and Foreclosures: Statewide, courts cannot proceed with residential evictions, court-ordered auctions and residential foreclosure proceedings, and in the 9th Judicial District (consisting of Dutchess, Orange, Putnam, Rockland & Westchester Counties), courts are also directed not to grant default judgments.
In-Person Workforce Reduction: Statewide, there is now a requirement in place (for all businesses) requiring that all non-essential businesses reduce in-person work forces by 100%. Law firms are considered essential businesses “only to the extent that their services are currently needed to support the essential functions of health care providers, utilities, state and local governments, the federal government, financial institutions, businesses that have been designated as essential; or to support criminal defendants in court proceedings or individuals in emergency family court proceedings; or to participate in proceedings concerning the imminent release or detention of individuals subject to criminal or civil detention under any applicable provision of state or federal law, or proceedings to address emergency risks to health, safety, or welfare.” (NY Executive Order 202.8.)
Notary: To facilitate the completion of necessary forms, the State has also permitted remote notarization. (NY Executive Order 202.7.)
Federal Court Access: In New York Federal Courts, access is restricted to “essential” case-related activities only. They have also suspended personal service of process in the Southern District of New York, in the Eastern District of New York, they have adjourned all jury trials scheduled to begin before April 27, 2020, pending further order of the Court, and the Court of Appeals for the Second Circuit is hearing regular argued appeals and motions calendars as scheduled, but by teleconference, and extending or tolling filing dates and other deadlines by 21 days, through May 17, 2020 (Second Circuit).

New updates are coming out daily, so be sure to review the website of any court where you may have a matter pending.

Guidelines for Non-Essential Businesses and Workforce Reduction

In response to COVID-19, Governor Andrew Cuomo, by Executive Order effective March 22, 2020, at 8:00 p.m., required that all profit and not-for-profit business reduce their workforce by 100% with the exemption of “essential businesses or entities.” This raises questions as to what is considered an “essential business” and if non-essential businesses can have any presence at their business location to undertake routine administrative tasks.

New York State Department of Economic Development (Empire State Development) has issued guidance and a “Frequently Asked Questions” document as to whether a business enterprise is subject to a workforce reduction.

The list of Essential Business can be found here.

The FAQ, found here, offers two key pieces of guidance:

A single person attending a non-essential closed business temporarily to perform a specific task is permitted, so long as they will not be in contact with other people. (Question #13). This will allow one person from your business to perform key functions such as mail review or attending to weekly maintenance issues such as server backup, security camera checks, etc.
If your firm is a vendor, supplier or provides other support to an Essential Business that is required for the Essential Business’s operation, then your business is exempt from the employment reduction provisions contained in Executive Orders 202.8. However, only those employees necessary to support the Essential Business are exempt from the employment reduction requirements of Executive Orders 202.8, and your business is still required to utilize telecommuting or work-from-home procedures to the maximum extent possible. (Question #11).