Litigating and Transacting Business During the Covid-19 State of Emergency.

Dear Friends, Clients, and Colleagues: 

As the near-global state of emergency arising from Covid-19 continues, people on Long Island, throughout New York State, and around the world are staying home, slowing down, and hitting “pause” while short-term plans and long-term contingencies are developed.  We are fortunate to live in a society with sufficient technology and other resources to allow businesses and the courts to mitigate the disruption.  Indeed, as people and companies pivot to meet emerging challenges, new opportunities have opened up for many.  

Across the board, all reasonable courtesies will be extended, and short-term delays can be expected.  Priority will be given to matters relating to emergency response and essential services.  However, litigation and transactions are continuing, notwithstanding the state of emergency, and will continue even in the event of extended “social isolation.”

Both state and federal courts already rely primarily upon electronic filing, and there are existing procedures in many instances to accommodate remote appearances (and even remote testimony, where necessary).  Circumstances will vary depending upon the cases and the individual judges assigned to each case. Both court systems are filled with talented individuals who take pride in their profession, understand the importance of what they do, and can be relied upon to ensure the continued stability and operation of the justice system.   Discovery will be subject to practical difficulties while businesses and local governments are operating with restrictions and limitations, and civil jury trials will likely be delayed over at least the next couple months.  However, cases will continue to move towards resolutions, and those seeking to make new filings will have access to the courts (with most deadlines tolled or extended). 

Transactions will continue.  New York State’s Technology Law has long recognized the validity of electronic signatures. (See NYS Technology Law 301, et seq.).  Indeed, there are many entities in the essential services sectors that are rapidly transacting significant business in response to the current circumstances.  Notably, New York State Executive Order 202.7 allowed for remote notary services, further facilitating remote operations. Where documents must be recorded or filed with government entities, there will be short-term practical delays.  Currently, the Suffolk County Clerk is only accepting documents for recording by mail, and the County Nassau County Clerk’s office is fully closed but will presumably shift to a mail-only or electronic system at the earliest opportunity.  

Briefly, for those interested, Article 2B of the New York State Executive Law gives the governor authority to declare a state of emergency for periods of up to six months, subject to extension.  When the Governor declares a state of emergency, it triggers an obligation for the affected local governments, within fifteen days, to report to the State and, unless determined unnecessary, begin developing a local recovery and redevelopment plan.  During a state of emergency, the Governor can suspend any state or local laws in intervals of thirty days, and take other appropriate responsive measures, subject to federal and state constitutional restrains. 

Similarly, local governments (Counties, Towns, Cities, and Villages) can also declare their own local emergencies in intervals of thirty (30) days.  These local emergency orders can include curfews; restrictions or prohibitions on the use and occupancy of buildings, or on traffic or public gatherings; and establishing emergency medical facilities.  A local government may also suspend its own local laws in five day intervals.   

Thus far, in a series of executive orders, Governor Cuomo has 

• Directed all businesses to halt any ”in person workforce,” except that businesses may continue through “telecommuting or work from home procedures that they can safely utilize,” and “essential” businesses are not subject to the restriction (with a procedure for businesses that do not fall squarely into the essential category to apply to be recognized as “essential”) (Executive Orders 202.7 and 202.8). 
• Tolled all statutes of limitations and court filing deadlines, as well as drivers license and motor vehicle registration expirations, until April 19, 2020 (Executive Order 202.8).  
• Authorized remote notary services for persons “personally known to the Notary” or who can “present valid photo ID to the Notary during the video conference,” provided the person is present in New York State, and sends the notary a fax or .pdf copy the same day (and, where original ink-signatures are needed, the original may be delivered to the notary and notarized as of the date of initial signing within thirty days). (Executive Order 202.7)
• Directed state-regulated banks to grant 90-day hardship forbearances, and to temporarily cease charging ATM, overdraft, and late fees. (Executive Order 202.9). 
• Temporarily authorized all licensed U.S. physicians to practice in New York State, regardless of their states of licensure. (Executive Order 202.5).
• Directed local governments to: (1) allow all non-essential personnel to work from home and otherwise restricting non-essential local government personnel to 50% office access; and (2) seeks approval from the State Health Department prior to issuing their own emergency declarations. (Executive Orders 202.4 and 202.5)
• Closed all schools until at least April 1, 2020, with all local school districts directed to develop “alternative instructional options” in anticipation of a longer full or partial shut-down. (Executive Order 202.4). 
• Suspended or modified various regulations so as to streamline the development of emergency treatment and testing facilities, to allow for Covid-19 testing and swan collection by qualified non-physician and non-nurse staff, and to allow for more expansive tele-medicine. (Executive Orders 202 and 202.1)
• Authorized the State, its agencies, and others to enter into emergency contracts. (Executive Order 202). 

The exercise of the government’s emergency powers necessarily pushes up against civil liberties and constitutional rights.   As restrictions continue there will inevitably be challenges, and the courts will hear and address those challenges. Governments look to the law for the processes being used to address these emergent conditions, and we have a system of checks and balances to ensure that they stay within the law in doing so. 

Business can continue to rely upon the law to ensure that the persons they are transacting business with are all playing by the same rules. Things will change, but they always do.  Challenges breed ingenuity and innovation, and this is no different.   Similarly, individuals can continue to rely upon the laws that protect them.  Far from a free-for-all, existing consumer and employment protections continue, and new laws are being enacted to address these unique circumstances. 

Be patient, be kind, and stay safe.  We will all get through his together.

Yours, 

Scott Kreppein

NYLJ Article - Housing Discrimination: Nagivating the Landscape for Local Govt's

I'm proud to share an article I wrote that was published today in the New York Law Journal.

Housing Discrimination: Navigating the Landscape for Local Governments

It discusses, generally, when and how local decision makers should consider the potential impact of their actions on protected classes, particularly in the housing and land use context.

I've Joined Devitt Spellman Barrett, LLP

I am pleased to announce that, as of June 3, 2019, I have joined Devitt Spellman Barrett, LLP as counsel to the firm.  

Devitt Spellman Barrett, LLP.  50 Route 111, Suite 314,
Smithtown, NY 11787.  631-724-8833.  Photo Credit: Google.

My primary area of concentration will be municipal defense and representation.  Among other things, I will be representing local governments on Long Island, including Suffolk County and many of its Towns and Villages, with respect to constitutional claims, land use matters, and tort claims.  I will also continue to represent small Long Island businesses in transactions and other commercial matters.  

I am honored to be joining such an outstanding and well respected team of attorneys.  Everyone I have interacted with from the firm thus far, from the partners to each staff member, have all been exceptionally impressive in their own way and, perhaps more importantly, extraordinarily pleasant  to work with.  Devitt Spellman Barrett, LLP, has been providing municipal and insurance defense services to clients throughout Long Island and New York State for over forty years.  I will be based in the firm's main office in Smithtown (near my home in Stonybrook), and the firm also has offices in Garden City and Albany.  

Mhany Mgmt, Inc. v. County of Nassau - Settled

Top  from left to right, Scott J. Kreppein, Nassau County Attorney Jared A. Kasschau, Deputy County Executive For Economic Development Evlyn Tsimis, Members of New York Communities for Change; Bottom from left to right: Nassau County Director of Housing and Community Development Kevin J. Crean, County Executive Laura Curran, and Frederick Brewington.  Photo Credit: New York Law Journal / Law.com.

One of the largest cases I've worked on during my career settled on March 15, 2019.  In the 2005 lawsuit, a group of non-profits challenged land use and zoning policies in the Village of Garden City and throughout the County of Nassau as violating, among other things, the Fair Housing Act.  The matter was dismissed as against Nassau County, but went to trial against Garden City.  After a finding of liability at trial as against the Village, the matter went before the Second Circuit Court of Appeals, both as to the finding against the Village, and as to the earlier dismissal against the County.  

On appeal, the trial verdict against the Village of Garden City, and affirmed the finding that, although having some "authority to override local zoning control" under specific circumstances, the federal Court of Appeals could not find that it had an affirmative"responsibly" to exercise that authority "[a]bsent further guidance from the New York Court of Appeals."  Mhany Mgmt. v. County of Nassau, 819 F.3d 581 (2016).  

However, the Court of Appeals reversed the dismissal against the County, and remanded for further consideration with respect to the "claims against Nassau County" that were stated "more generally" regarding its policies and practices with respect to affordable housing, particularly with repsect to HUD-funded programs, and whether the allegations and evidence supported claims "under 42 U.S.C. § 3604(a) (Section 804(a) of the FHA) and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d." Id. 

Following remand, my prior firm was assigned the matter as outside counsel, and I was assigned day-to-day responsibilities on the case.  After years of of discussions and discovery, including extensive evaluation of County's land use and housing policies over the last fifty years, the County and the Plaintiffs were able to reach an amicable resolution.  

The details of the settlement are discussed in the “County's Press Release," and the matter was covered by Newsday and the Long Island Business News, and referred to as a "Landmark Settlement" by the New York Law Journal and Law.com.  I am the guy on the top left of the photo above,  from the NYLJ's front page.