Coopersmith and Coopersmith

As Labor Day approaches, many New Yorkers are contemplating a return to the City driven in part by the (now delayed) plan for reopening New York City public schools. This latest client alert will address what commercial tenants need to incorporate in their reopening plans as well as the status of New York’s ongoing eviction moratorium.

Planning for Reopening

As businesses contemplate increased use of office space, it is necessary to familiarize and implement New York State’s Office-Based Work Guidelines for Employers and Employees.  The full text of the guidelines can be found HERE

Notably, tenants are responsible for screening their own employees and visitors, unless tenants and building management have agreed to an alternate arrangement to ensure screening is in effect.  In addition there is a requirement for employers to:

  • provide employees and independent contractors with acceptable face covering at no cost, as well as to have an adequate supply of replacements;
  • limit the total number of occupants at any given time to no more than 50% of the maximum occupancy for a particular area, as determined by the certificate of occupancy, as well as to maintain a distance of at least 6 feet between all individuals at all times;
  • advise workers and visitors to wear face coverings in common areas including elevators, lobbies, and when traveling around the office;  
  • provide and maintain hand hygiene stations in the office, including handwashing with soap, running warm water, and disposable paper towels, lined garbage cans, as well as an alcohol-based hand sanitizer containing 60% or more alcohol for areas where handwashing is not feasible; and
  • regularly clean and disinfect the office, and more frequently clean and disinfect high risk areas used by many individuals

On the continuing eviction moratorium

On August 20th, Governor Cuomo extended the commercial eviction moratorium through September 20th.  This means that landlords cannot initiate a proceeding or enforce an eviction against commercial tenants for the nonpayment of rent. Text of the executive order can be found HERE.  For residential evictions, Chief Administrative Judge Lawrence K. Marks has issued a memorandum that all eviction proceedings remain suspended, and no residential warrants of evictions may be executed before October 1st.  Text of the memorandum can be found HERE.  (The careful reader will note Governor Cuomo’s executive order supersedes the memorandum for commercial evictions) This is notwithstanding the forthcoming notice from the Center for Disease Control and Prevention, a draft available HERE, which seeks to extend the moratorium on evictions through December 31, 2020 for individuals earning less than $99,000.00 per year or couples earning less than $198,000.00.

Importantly, the eviction moratorium does not affect the accrual of rent obligations.  Though enforcement through judicial action is limited, commercial tenants are advised to examine their exit strategies if they are unable to pay their rent and explore lease modifications or surrenders with their landlords as well as sublease and assignment options.  This is especially important if there is a limited or “good guy” guaranty that was executed by an individual in connection with the commercial lease.  While New York City enacted NYC Council Int. No. 1932-A, a law designed to limit the liability under personal guarantees, the legislation faces steep constitutional challenges as we detailed in a prior client alert, and absent further action will not apply to defaults which occur after October 1, 2020. 

If you would like to discuss your specific circumstances and how they may be impacted by the foregoing, please feel free to contact us HERE or by calling us at (212) 625-8505.      

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