Gibbons Law Alert

Gibbons Law Alert

Tagged: New York

New York Appellate Court Allows Top Floors of Upper West Side Condo Building to Remain

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Posted in Development/Redevelopment

On April 7, 2021

The New York City development community was alarmed by a trial court decision in February of last year that would have required removal of the top floors of a 55-story condominium building under construction at 200 Amsterdam Avenue on the Upper West Side of Manhattan. On appeal, the Appellate Division, First Department, issued a decision in early March reversing the trial court, which means that, absent any further appeal, the building can be completed and the condominium units offered for sale. The case, In the Matter of Committee for Environmentally Sound Development v. Amsterdam Avenue Redevelopment Associates LLC, 2021 NY Slip Op. 01228 (“Amsterdam Avenue”), serves as a high-profile, high-stakes reminder of the importance of two well-settled principles of New York zoning law: Administrative agencies like planning and zoning boards, which are charged with administering technical regulations with which they have substantial experience and technical expertise, are entitled to substantial deference and cannot disregard past precedent without good reason, such as differences in facts or changed circumstances; A party seeking to overturn a permit or approval must avail itself of all opportunities to seek a stay that halts construction or risk having its case dismissed as moot, and a developer seeking to defeat an appeal can do so by taking the risk of diligently proceeding...

NYSDEC Commissioner Directs Agency to Investigate PFAS Contamination in Consumer Products

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Posted in Environmental and Green Issues

On January 25, 2021

New York State Department of Environmental Conservation (NYSDEC) Commissioner, Basil Seggos, announced last week that he is directing the Department to conduct a new investigation of potential per- and polyfluoroalkyl substances (“PFAS”) contamination in consumer products. PFAS have been designated as chemicals of emerging concern by the U.S. Environmental Protection Agency (EPA). Specifically, Commissioner Seggos has directed the Department to “take a hard look at new science shared by the U.S. Environmental Protection Agency about potential PFAS contamination in consumer products, including insecticides, pesticides, and other crop protectant products packaged in fluorinated high-density polyethylene (‘HDPE’) containers.” Earlier this month, the EPA had issued a press release that stated, “the agency has determined that fluorinated HDPE containers that are used to store and transport a mosquito control pesticide product contain PFAS compounds that are leaching into the pesticide product.” The EPA press release that triggered the Commissioner’s directive announced the EPA’s investigation into companies that use fluorinated containers and companies that provide container fluorination services, in an effort to identify potential sources of contamination. The directive from Commissioner Seggos is the latest in a line of actions taken by New York to address PFAS contamination, including a statewide investigation of potential sources of PFAS and the establishment of drinking water maximum contaminant levels for two PFAS...

USDOJ Legal Memo Clarifies Department’s Policy on Using Federal Judgment Fund to Settle Superfund Cases

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Posted in Environmental and Green Issues

On September 18, 2020

A U.S. Department of Justice legal memo, obtained under the Freedom of Information Act by Bloomberg Law, has clarified and restated the Department’s strict policy against using the federal Judgment Fund to settle Superfund cases in which the federal government is a Potentially Responsible Party (PRP). The memo states that the federal government can settle its liability by payments from the Fund only if the settlement is “final” – that is, there are no contingencies or future payments due. Many Superfund settlements do not meet that standard, since they typically include reopeners, “pay-as-you-go” arrangements, or provisions for additional funding if the remedy proves more expensive than originally estimated. As Gibbons Director David J. Freeman told Bloomberg Law, “It’s not a favorable development for the program, or for making progress on settlements in general, for the government to be taking such a hard line on this.” This policy will likely result in making it more difficult to achieve settlements at sites where the federal government is a PRP.

New York Issues Guidance on Use of Sick Leave and Paid Family Leave for COVID-19

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Posted in Family Leave

On May 20, 2020

As discussed previously, New York recently passed a COVID-19 sick leave law that provides job protection and paid leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (“COVID-19 quarantine leave” or “quarantine leave”). New York State has since published guidance (“Guidance”) and FAQs relating to the COVID-19 sick leave law (“FAQs”), which discuss, among other things, how employees may be compensated under the new law, through a combination of benefits that include COVID-19 sick leave, New York’s Paid Family Leave (PFL), and short-term disability (DBL) benefits while in quarantine. Under the COVID-19 sick leave law, as clarified by the Guidance and FAQs: An employee who works for a small employer – one with ten or fewer employees as of January 1, 2020 (with a net income of less than $1 million in the prior tax year) – and is subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, department of health, local board of health, or any other government entity authorized to issue such an order due to COVID-19 (“quarantine order”) is entitled to unpaid sick leave until the termination of the quarantine order. The employee may also be eligible to receive compensation for the duration...

Relaxation of Notary Rules Allows Remote Notarization in New Jersey and New York

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Posted in Real Estate

On April 16, 2020

With some banks and municipal offices closed to walk-ins, non-essential employees working from home, and social distancing requirements in place, the ordinarily mundane task of having documents notarized has become much more challenging. The very act of taking an acknowledgment requires that the notary personally interact with the signatory, verify identity, and witness document execution. This, of course, is wholly inconsistent with the COVID-19 world in which we find ourselves. Although electronic (rather than pen and ink) notarization has become more common in many jurisdictions, few states permit online or webcam notarization where the person signing a document is not in the physical presence of the notary. As a result of COVID-19, the rules have been relaxed in New Jersey and New York in order to permit video notarization in some instances. New Jersey New Jersey is utilizing a legislative process to amend the Notaries Public Act of 1979 (the “Act”). A bill designated as A-3903 was signed into law on April 14, 2020, as P.L. 2020, ch. 26. It takes effect immediately and will remain in effect for the duration of the COVID-19 emergency as declared by the Governor in Executive Order 103. It provides that a notary appointed pursuant to the provisions of the Act or an officer authorized to take oaths, affirmations,...

U.S. EPA and New York ESD Provide Updated Guidance Regarding Environmental Work Permitted for During COVID-19 Pandemic

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Posted in Development/Redevelopment / Environmental and Green Issues

On April 16, 2020

Within the past several days, both the U.S. Environmental Protection Agency (EPA) and the New York Empire State Development Corporation (ESD) have provided updated guidance clarifying the standards for deciding what types of work may proceed at hazardous waste sites during the COVID-19 pandemic. EPA Interim Guidance on Site Field Work Due to Impacts of COVID-19 EPA’s April 10, 2020 interim guidance supplements the previously-issued March 19, 2020 guidance from the Office of Land and Emergency Management. It applies to response actions at cleanup and emergency response sites where EPA is the lead agency or has direct oversight or responsibility for the work, including response action work that may be conducted by states, tribes, other federal agencies, and potentially responsible parties (PRPs). At these sites, EPA will continue to make decisions on a case-by-case basis regarding ongoing site activities, with top priority given to protecting the health and safety of the public and maintaining the health and safety of EPA personnel and other on-site cleanup partners. The guidance also directs Regions to consider other important priorities, such as whether local officials have made specific requests to suspend work, whether on-site workers have tested positive or shown symptoms of COVID-19, and whether social distancing at specific sites is possible. In making decisions to reduce or suspend...

New York City and State Close Down All “Non-Essential” Construction

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Posted in Environmental and Green Issues

On April 2, 2020

As noted in our blog published on March 24, Governor Andrew Cuomo’s March 20, 2020 Executive Order 202.8 directed all “non-essential” businesses to implement remote work policies for 100% of their workforces, effective March 22 through April 19, 2020. The Empire State Development Corporation (ESDC) issued initial guidance on March 24, 2020, whereby it interpreted the Order to allow, as a category of “essential business,” “construction,” “including skilled trades such as electricians and plumbers,” and “for essential infrastructure or for emergency repairs and safety purposes.” ESDC updated and clarified its guidance on March 27, stating that “[a]ll non-essential construction must be shut down, except for emergency construction” and certain types of “essential construction.” Per the updated guidance, “emergency construction” includes “a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site.” “Essential construction” includes “roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing and homeless shelters.” Even at emergency or essential construction sites, social distancing must be able to be maintained, or the site must shut down. Violations are punishable by fines of up to $10,000. On March 30, the New York City Office of Environmental Remediation (OER) and...

Environmental Obligations for Businesses in New York During the Coronavirus Pandemic

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Posted in Environmental and Green Issues

On March 24, 2020

The pandemic caused by the novel coronavirus, or COVID-19, has slowed business—and activity in general in many areas of the United States—to a crawl. New York State is one of the places hit hardest by this pandemic. Indeed, at the time of this writing, New York has the highest number of confirmed COVID-19 cases in the country. Unfortunately, the spread of the virus shows no signs of relenting. Nonetheless, manufacturing, the real estate industry, and other regulated businesses continue to face environmental reporting obligations, regulatory deadlines, and potential penalties for non-compliance. Businesses and other property owners are dealing with remediation deadlines, as well as operation and maintenance obligations of environmental controls. Businesses are also rightly concerned about reporting requirements under various permits, including under such federal permitting programs as the Resource Conservation and Recovery Act and others. Meeting these obligations has become significantly complicated by the pandemic and the ancillary issues it has brought on, such as the illness of key personnel, inaccessible facilities, and other impediments. On March 20, 2020, Governor Andrew Cuomo signed Executive Order 202.8, which directs that all “non-essential” businesses implement remote work policies for 100 percent of their respective workforces, effective March 22 through April 19, 2020. The Executive Order further states that businesses that provide “essential services or functions...

Gibbons Director David J. Freeman to Serve as Co-Chair for NYS-NYC Bar Program

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 4, 2019

Gibbons Director David J. Freeman will serve as Program Co-Chair of an upcoming New York State Bar/New York City Bar conference on Federal and New York State brownfield and Superfund programs. The conference will take place from 10:00 a.m. to 3:00 p.m. on December 12, 2019 at the New York City Bar Association, 42 West 44th Street, New York, NY 10036. The program’s distinguished faculty includes New York State Attorney General Letitia James, Environmental Protection Agency (EPA) Region 2 Administrator Pete Lopez, and other officials from the EPA, the New York State of Department of Environmental Conservation (NYSDEC), the New York State Office of Attorney General, and the New York City Office of Environmental Remediation. The topics to be discussed will include: trends in federal Superfund enforcement, including natural resource damages claims and the impact of the Superfund Task Force recommendations; NYSDEC policies and practices in implementing the 2015 Amendments to the Brownfield Cleanup Act; the intersection between Superfund and brownfields, focusing on developments at the Gowanus Canal Superfund Site; and an analysis of case law developments in these areas. Click here for a brochure describing the program and here for a further description and registration information.

NY High Court Voids Commercial Tenant’s Traditional Safety Net – Here’s How Landlords Can Take Advantage of This Ruling

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Posted in Transactional Real Estate and Leasing

On May 16, 2019

Commercial tenants in New York have traditionally been able to secure a stay of summary dispossess proceedings brought against them and remain in occupancy pending the outcome of tenant-commenced litigation challenging the existence of a landlord-alleged default. Thanks to a recent landmark decision by New York’s highest court, this may no longer be the case if the lease contains the waiver language set forth below. When a landlord provides notice of an alleged default, tenants often seek a declaratory judgment as to the interpretation of the lease and whether a default exists, and also move for a Yellowstone injunction to toll any summary proceeding until the declaratory judgment action is completed. This effectively stays the summary dispossess proceedings. In 159 MP Corp., et al. v. Redbridge Bedford, LLC, the State of New York Court of Appeals addressed the enforceability of a commercial lease provision that prohibited the tenant from commencing a declaratory judgment action against the landlord with respect to any dispute regarding the lease. The Court rejected the tenant’s argument that the clause was void against public policy, finding the clause enforceable, based in large part on the sophistication of the parties and the “strong public policy favoring freedom to contract.” The Court also determined that, based on the enforceable lease waiver prohibiting the...

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