You can pass a house rule that covers mask-wearing and social distancing, in either a specific or a generalized way. You might want to ask your attorney for guidance on the phrasing. Afterwards, anyone who fails to comply is violating a house rule and is subject to whatever penalties your Proprietary Lease allows for breaking house rules.

A difficulty our attorney warned us about in the past: authority to impose fines must originate in the Proprietary Lease. So your board may not be able to impose a fine even for egregious violations of house rules.

Hi pierogiz - Co-op apartments are a special type of of lessor/lessee arrangement that works like this. From a business organization perspective, a cooperative apartment building is owned by a unique form of not-for-profit corporation. This corporation owns the land (in most cases) and the building(s) outright.

When you "purchase" a co-op apartment you are actually buying shares of stock in the co-op corporation. At your closing you should have received a formal printed stock certificate showing how many shares you own and a copy of the corporation's Offering Plan. These are two key documents. If you took out a mortgage, the originator is given the stock certificate as collateral for the loan.

In exchange for owning the shares of stock apportioned to your unit, the co-op corporation grants you a Proprietary Lease. This is a special kind of lease that is similar to the lease you would sign if you simply rented your unit from a landlord.

Someone who owns a co-op apartment is both a shareholder in the corporation and at the same time is a leasee of the corporation. The terms "lessee" and "renter" are often interchanged, so you might be referred to as a renter.

To determine if you are a co-op owner or simply renting your apartment, think back to when you first signed a lot of paperwork and received the keys. Was it at a formal closing? Did you take out a mortgage? Did you pay one large sum at the closing or do you pay monthly rent to your landlord? Were you given an original or photocopy of a stock certificate? Do you remember receiving a copy of a thick document titled Offering Plan.

If your answer to these questions is "yes", you are most likely a co-op owner. If all you did was sign a lease and handed over a security deposit you are most likely a renter.

Once you determine what you are, the rest of your questions will fall into place.

Good luck!
--- Steve

Hi,

On the D.O.F. website
https://a836-acris.nyc.gov/DS/DocumentSearch/BBL

Using block: 1177 and lot 1, for your address, it shows some units listed as a co-op, while others as apartment. ???

While renters do not have the same rights as owners,
maintenance issues should absolutely be addressed and resolved.

The Business Corporation Law states Co-Ops are required to hold annuals meetings and have a board of directors.

As a renter, you don not have any rights to vote, however if the management company is not responding to your maintenance needs, you would at least be and to reach out to the board

(602)
"A meeting of shareholders shall be held annually for the election of directors and the transaction of other business on a date fixed by or under the by-laws.  A failure to hold the annual meeting on the date so fixed or to elect a sufficient number of directors to conduct the business of the corporation shall not work a forfeiture or give cause for dissolution of the corporation"

You might try and contact the department of finance for assistance or call 311. I have found Marcel Dixon to be very helpful.

Marcel Dixon
NYC Department of Finance│External Affairs
212-602-7050

DixonM@finance.nyc.gov

I definitely rent my apartment, however, I think the landlord doesn’t have a functioning coop board at the building as everyone is a renter... how do I. Find out which apartment is still under rent control in the building and actually physically go and speak to those tenants to see if they are under rent control

N.Y. Attorney General

https://formsnym.ag.ny.gov/OAGOnlineSubmissionForm/faces/OAGREFHome;jsessionid=y44nathAXmNrxUAjlP9uVF7ZZE0QceOF9WS6_mUsdQQG6bJAjs0z!2126564131

Hope this helps....

https://www.habitatmag.com/Publication-Content/Co-op-Condo-Buyers/2008/2008-December/Renters-Rights-in-Co-op-and-Condo-Apartment-Buildings

Question: Does your renters have a Medical Marijuana card? If yes your board can not say anything nor charge you for odors. Building has a # of odors Like cooking, smoking and painting and construction.
Medical Marijuana (Vaping does not smell ) nor does vaping smoking cigarets I know this for a fact.
Sounds like someone doesn't like your renter. Before you fight this check if they have a medical card. The board can not charge for something that is legal. Good luck and let us know what happens.

In addition to PC #1's good suggestions, I would recommend you check your co-op's House Rules for a no-smoking clause. One might have been added recently, although as a shareholder you should have been notified at the time.

Co-ops and condos must abide by a Warranty of Habitability. This is law which states in effect that in multi-unit buildings, it is the responsibility of the landlord (or co-op board or HOA) to insure each unit is habitable. You should check the Warranty of Habitability for Westchester to understand exactly what it says.

Second-hand smoke of any sort is the major habitability complaint. It sounds like in the building you visited, everyone was cool with the marijuana smoke so no one complained. In the building housing your sublet unit, some shareholders are not so understanding. But they will most likely prevail if this becomes a legal matter.

I don't think you or your sublet are being targeted. The fact your sublet smoked a second time after being warned affects his credibility. If a unit owner once again smells MJ smoke, it is not too difficult for them to arrange with a board member to visit the unit owner's apartment while the MJ odors are present. The board also has the right to enter your sublet's apartment at the same moment in time to sniff for tell-tail traces of MJ smoke.

The best thing you can do is warn your sublet against smoking anything. Period. Then be proactive. Notify the board that if they receive another complaint, you would like a board member to immediately visit your unit to see if any aromas are present. Incense and other aromatics will only decrease credibility further.

Please be aware that I am not an attorney, and what I wrote above is worth what you paid for them.

Hi Alima and Jerome - I am very sorry for the grief and discriminatory remarks you were subjected to by the condo board president. Have you brought these and your other complaints to the attention of your landlord, who I assume owns the condominium? If not, this is where you should start.

You have to realize that as the tenant of the actual owner of the condo you have very little influence over the actions and decisions of the condo's board. The issues you described need to be dealt with by your landlord. You have certain tenant's rights under the law, but you would need to consult with an attorney to understand what they are and how you would enforce and/or protect them.

Most important, I think you misunderstand the nature of this discussion group. It is comprised mainly of co-op and condo board members who answer questions and give advice to other board members based on knowledge and experience. You need to realize that there is no one on here who has any legal power or authority to resolve anything. The best we can do is offer suggestions, but they have no legal standing and are worth what you pay for them.

I'm mentioning this because in your message closing you thanked us for our attention in resolving the issues. We can't. Most of what you describe can only be resolved first by discussion with the board. If that doesn't work, you may have to go to court and you may have to hire an attorney. There's no one on here who can represent you or do any legal work on your behalf.

Good luck,
--- Steve

Hello Maria,

You most certainly can list your co-op. The realtor will take pictures, some are doing virtual video tours.

You appear to be stuck on the idea of listing when the pandemic winds down but It is winding down Maria... So why wait?

It seems like you want you board to bend the rules but you and your tenant don't want to show good faith by doing due diligence and list your co-op. Has you tenant made any effort to look online or go to a resistor?

I think your tenant is very lucky to have such a caring and compassionate lessor. I am sure she is equally concerned about you.

You mentioned possibly contacting an attorney. With your current situation, do you think spending thousands of dollars for an attorney is the wisest move?

I just spoke to my tenant........she said the Co-op can't evict her because of the nys law. She also said she doesn't feel comfortable with anyone coming into her apartment to take pictures or virtual tour for me to sell the coop. What am I to do?

Maria - Contributor NYC makes excellent points about your tenant, and you and your husband's relationship with her. For an angel, she's not very giving with her halo.

At this point, you should be working *with* your board to make sure she vacates at the earliest possible moment. At best you'll have to hire an attorney and start an eviction proceeding. At worst, this will get you on the outs with your board, and good luck with selling your apartment

She no longer deserves your loyalty and consideration. Good luck with whatever you decide.

No that's not true. My tenant and I are on the same page. We both want the extended lease. We both agree that the board should have a little more compassion during these time.

Hello Maria,

Now I am confused... While I am totally sympathetic to your situation, there isn't much you can do except end up going to war with your Co-Op board.

Your tenant will eventually be gone and you will be left with an empty co-op, monthly maintenance and attorney fees.

Maria, you can stand your ground but a lease is a legally enforceable agreement and there are emotional and financial consequences that you will be facing for your actions.

Is your tenant a family member or th or actual owner?

I just can't understand how you can put yourself in a position that will require legal intervention for your tenant. I understand she is an "Angel" but there are other ways you can help her.

Rather than challenging your board and spending thousands for legal action, you can offer to pay her 1st months rent and security deposit. That might be a great incentive for her to put on PPE and allow a realtor into the unit to take a re pictures and list your Co-Op .

Awwhttps://www.habitatmag.com/Publication-Content/Co-op-Condo-Buyers/2020/2020-May/Uptick-in-Apartments-For-Sale-Offers-Market-Ray-of-Hope

To be blunt, it makes no difference what your tenant wants. She has no standing in any of this, and worse, she's putting up roadblocks that will make your and your husband's life much more miserable. The two of you can agree all you want. I don't see it swaying your board.

As far as what *you* want, you made it clear in your original posting that the board will not extend your lease and they have no reason to reconsider. So either you can start planning for the future by making sure your tenant vacates when the existing lease expires, or you can wake up the day after in a big heap 'o problems.

If magical thinking worked, coronavirus would be gone by now. Like a miracle.

I am sorry for your troubles Maria,

Seems as if your tenant is being very combative and doesn't care that she will be causing you a lot of trouble and grief and possibly the loss of your co-op once she does leaves.

Good luck with whichever recourse you decide to take.

https://ny.curbed.com/2020/4/2/21204328/nyc-real-estate-coronavirus-home-showing


https://www.habitatmag.com/Publication-Content/Co-op-Condo-Buyers/2020/2020-April/Yes-Remote-Closings-Are-Possible.-Here-s-How

Hello Maria,

Now I am confused... While I am totally sympathetic to your situation, there isn't much you can do except end up going to war with your Co-Op board.

Your tenant will eventually be gone and you will be left with an empty co-op, monthly maintenance and attorney fees.

Maria, you can stand your ground but a lease is a legally enforceable agreement and there are emotional and financial consequences that you will be facing for your actions.

Is your tenant a family member or the actual owner?

I just can't understand how you can put yourself in a position that will require legal intervention for your tenant. I understand she is an "Angel" but there are other ways you can help her.

Rather than challenging your board and spending thousands for legal action, you can offer to pay her 1st months rent and security deposit. That might be a great incentive for her to put on PPE and allow a realtor into the unit to take a re pictures and list your Co-Op .

Awwhttps://www.habitatmag.com/Publication-Content/Co-op-Condo-Buyers/2020/2020-May/Uptick-in-Apartments-For-Sale-Offers-Market-Ray-of-Hope

https://www.habitatmag.com/Publication-Content/Co-op-Condo-Buyers/2020/2020-May/Uptick-in-Apartments-For-Sale-Offers-Market-Ray-of-Hope

Hope this helps.

https://www.habitatmag.com/Archive2/355-May-2018/The-Mystery-of-the-Missing-Abatement

I would contact your NYC Council person and ask them to contact the DOF on your behalf. They'll want all the information you've provided here.

I had some success with this method, so give it a try and good luck.

Thank you for the article and Marty, thank you. I am now in the process of writing out a letter with documents to my city council.

Hi. By way of disclosure, I am a board member, and my response is from a board member's perspective.

I completely understand your angst because I encounter it with my shareholders. Please try to understand that the rules limiting sublet durations are not enacted by simple majority votes of the board, but are most likely enshrined in your proprietary lease. Overriding a clause in the proprietary lease would be like overriding a clause in the Constitution. It takes much more than a simple majority.

Then there is the issue of precedent. Even if the board *were* able to vote to change the term limit, making an exception for you would leave them wide open to having to make exceptions for anyone who asked. No board wants to be in that precarious position or give up that much governing authority.

I'm sure your tenant is a perfectly wonderful individual, but as often the case, one person's angel is another's devil. That's the reason documents like the Constitution and Proprietary Lease exist - to remove subjective influences from the need for objective decisions.

There really is no one individual or department you can contact. Almost all board decisions, especially those that are backed by the governing documents, are fully protected by a concept known as the Business Judgment Rule (BJR). The BJR states that any reasonable decision made in good faith by a co-op BOD is assumed to be in compliance with a board's fiduciary obligation and cannot be challenged. Enforcing a three year sublet limit clearly falls within that definition.

I assume your tenant knew about the hard three year limit when she signed the lease, and the expiration is not coming as a surprise. Co-op boards are bound by their governing documents, and as much as I am sure your board would like to accommodate your request, they do not have any flexibility. Your board does not sound heartless in the least, but simply acting in the way all conscientious directors are supposed to.

Marty, PC#1, and some of the other regular contributors may have other thoughts and ideas about this, so it may not be over. You have a very uphill battle, and I would recommend your tenant assume she will have to vacate in August.

--- Steve

I am a board member like Steven 424. I am in complete agreement with Steven's detailed explanation and rationale.

We feel for shareholders in these situations, but our legal obligations give us no leeway.

I'm sorry for your troubles, but the 3 year sublet must be honored.

I agree with Steven424 & Marty. But there is a very deadly virus and people can not move around as if things are normal. Have your sublet start looking around and maybe get an agent. She has 4 months to find something. Best of luck you are one of the lucky people to have a gem of a renter. Stay safe.

Hi, actually my tenant is an Angel. She is clean, quiet, does not have parties and works all the time........ask the superintendant. I totally agree with you with the bylaws, But we are in the middle of a crisis.....this month is the month my tenant and I would be looking for an apartment or buyer. Have you heard...realtors can not do showings. Public health experts urge everyone to stop doing all but essential outside tasks in order to flatten the curve of infections. My husband and I are afraid to go outside!!!!!!. It doesn't have to be a year renewal...it could be 6 months.............STATE laws have been suspended and put on hold to assist the state in disaster. I think a Board of a coop could do the same. A month to month lease is insane.........COVD-19 is out there for a while......You board members think your God.....You can deviate from rules because of the COVD-19. My husband and I are in our 60's...........if this happened to you.......I think you would think differently.......Also.......the Board is not letting anyone in the building unless you live there.......so how can I do a showing or market the place? Governor Cuomo says "We should work together" I hope you don't think I'm shouting........I am just frustrated....my niece is a nurse and she has seen so many die in front of her........I'm just asking for a little more time ..............until me and my tenant feel comfortable going out. Shame on that President of that Board..............I think I might write to Gov. Cuomo....he says stay inside..........social distancing.......whenever possible

Sorry, I meant to write that Board member thinks she is God.........not you guys........I don't even know you. She has enforced other thinks at the building that owners or tenants disliked.....because she is old and crabby.

It's really just saying........We care and we want to help.........

I just want to add that in our coop, the Board changed the sublet rules several times over the years, whether length or reasons for sublets. By majority vote.
There were no governing documents preventing policy changes.

I fear that if I can't sell it during this pandemic, then i will be delinquent in paying my maintenance because of financial hardship. I have a bad feeling that the Management is trying to regain possession of the unit. When the pandemic begins to taper, I will be able to market it....but by then I won't be able to pay the maintenance bill of the coop which is $1,029.00 a month. Why won't they put a temporary halt on this bylaw or rule. I don't know how I will weather this storm. My husband is in his 60's and going to work, worrying about getting the virus. I'm at home worried about my husband and afraid to go out.......I feel like I am being cornered by the Coop Board and Management company and now I have this extra stress.

Hi Maria - We definitely hear you and feel deeply for the predicament you and your tenant are in. Co-op boards are not sovereign governmental bodies and do not have the... errr.... leeway the executive and legislative branches of government do.

Boards can be sued or worse if they knowingly violate the co-op governing documents. The fact we are all in a situation where accomodations are being made due to COVID-19, we may not have all the answers. Perhaps you and your tenant should consult with an attorney who specialized in co-op and real estate law. There may be some temporary allowances being made which benefit your tenant the attorney would know about.

Another remote possibility is to propose to the board that in August your tenant become a "tenant at will" which means there is no lease and they can be asked to leave with 30 days notice. At the very least your tenant would need to perform a very diligent search for a new place and keep detailed records to show she is at least trying to find a new place.

Ultimately your tenant can refuse to leave. This would put you in a very uncomfortable position of being in direct confrontation with your board. It can have all sorts of repercussions, up to and including the cancellation of your proprietary lease and you losing your apartment in an eviction proceeding (remote possibility). It's the nuclear option, and you must consult with an attorney before starting down that path. It might just buy you enough time to mount a challenge to the crabby old board member and get her voted out at the next election.

And in the spirit of full disclosure, I'm old (70 years) and can be pretty crabby (ask Connie S who went on a rant about her Asian neighbors) [chuckling]

Again, good luck!

Thank you so much for responding......but I can't do that to my tenant. She has always paid on time and is a teacher in her 30's who is very respectable to us. I don't think I would want to go the attorney way, because then when I sell......they (the Board ) will give me a hard time....you know .....they will delay the interview and application date. She is a real scrooge. She has done that already to people. When she became president the pool had to be closed at 7:00 instead of 9:00....and there's other stuff too...But getting back to the 3 yr subject if you hear of any TEMPORARY ALLOWANCE will you let me know? I would appreciate that. Do you know of any good coop attorneys on Long island............just in case I want to pick their brain.

Thanx again..........Stay safe and well!!!!

I fear that if I can't sell it during this pandemic, then i will be delinquent in paying my maintenance because of financial hardship. I have a bad feeling that the Management is trying to regain possession of the unit. When the pandemic begins to taper, I will be able to market it....but by then I won't be able to pay the maintenance bill of the coop which is $1,029.00 a month. How can I have them put a temporary halt on this bylaw or rule. I don't know how I will weather this storm. My husband is in his 60's and going to work, worrying about getting the virus. I'm at home worried about my husband and afraid to go out.......I feel like I am being cornered by the Coop Board and Management company and now I have this extra stress.

Hi Maria - I'm confused about your relationship with your co-op. In your initial message, you said that you "own a coop on Long Island, NY." I assumed you are a shareholder in your co-op corporation and that you have a proprietary lease.

In your latest message you wrote, "I have a bad feeling that the Management is trying to regain possession of the unit." That implies you rent your unit either from a shareholder or a sponsor, and they are trying to evict you for some reason. Evicting a tenant, which is an arduous process, is much easier than evicting a shareholder, and makes no sense unless enough other shareholders feel you are a real nuisance (look up "Pullman Hearing" in Google).

Finally, you have your own tenant you are trying to protect. Many co-ops do not allow a shareholder's tenant to have their own tenant.

So I'm confused. :-)

A lot of shareholders wonder why a board can't just stop collecting maintenance during an emergency like coronavirus, or superstorm Sandy, or even Sept 11. When you think about it, shareholders are the *owners* of the co-op corporation. Cutting off the major source of income to the corporation (monthly maintenance) would make it impossible for the corporation to pay its mortgage, pay its real estate and other taxes, pay its staff, purchase supplies, make repairs, etc, etc. Your co-op corporation would very quickly go bankrupt, and your apartment, probably your largest asses, would become worthless. Not a pleasant prospect, and why withholding maintenance is counterproductive.

I am the treasurer of my building and I meet with shareholders in your situation, and much worse off. What I try to do is work out a partial reduction in maintenance during the emergency, and then a repayment plan once the situation stabilizes.

You say your husband still works and I assume receives a salary or other income, and you stay home. Did you also earn an income which you recently lost? Do you receive unemployment compensation, a form of income? You rent out your unit, which was the start of this thread. Where are you living now? If things got really bad, what prevents you from moving back into the unit you own once your tenant moves out? There are a lot of contradictory statements that make it difficult to offer any meaningful suggestions.

Finally, taking the totality of what you've written so far, I have to disagree that you are being "cornered" by your coop board and management company. Everyone is under additional stress these days. Some of my shareholders have *no* income and are living off of savings and retirement accounts. Besides wanting to provide for your angel of a tenant, which is admirable but possibly not doable, what else makes your situation so dire that you're thinking of writing to Gov Cuomo and other agencies?

Just wondering why thumbs down to these great responses? I think she's back! LOL

Yep..She's back!!!

who is back? ............The answers are great! I'm writing to Cuomo and the national coop board. "because in one of the board's letters to me they wrote " I understand you might be paying for an empty unit for a while, but it's out of our hands"........why would anyone find pleasure in someones hardship.

Hello Maria,

I agree with the others. Your co-op board can make things very difficult when you try to sell, if you challenge the proprietary lease.

Since your 3 year lease is valid until August, why don't you and your tenant work with the same realtor for your respective needs. You probably can negotiate a lower commission for your sale and your tenant's rental.

Then speak to your board and show them that you are both diligently trying, under these very difficult circumstances.

Rather than ask for a 6 month extension, would they take a month by month extension with a six month maximum if necessary, under consideration.

I am not a lawyer, but from what I've read, I would have to say no. It's analogous to hanging a picture on a hallway (common area) wall or a planter outside your door. Shareholders may not make *any* addition, changes, or removals from any common area without board approval. Video cameras are particularly contentious because of privacy issues.

Your best bet would be to consult an attorney who is familiar with co-op law. The best you might be able to do is install one of the newer peephole video devices, but you may even get pushback about that.

If you approached your board about the harassment and they've done nothing about it, your only recourse may be to consult an attorney.

Good luck.

Like Steven, I am not an attorney, but I agree with his advice. Cameras are not allowed in the common areas.

This situation came up for us a few years ago and the shareholder was not allowed to put the camera in the hallways due to privacy issues.

If I may ask...what benefit would there be in putting a camera in the stairwell? Is that where the harassment is taking place?

Good luck.

As a lay person (I am not an attorney) who recognizes this is a minefield waiting for someone to step in the wrong place, my first and only piece of advice is to ask your board's attorney.

Good luck.

I agree with Steven - speak to your attorney before doing anything.

We just had a staff member tested for corona. He was sent home because he had a fever. We think it's the flu because some family members recently had the flu and he only had a fever, but not the cough and shortness of breath associated with corona. But, we took no chances and sent him home and told him to see his doctor immediately.

We worried about privacy issues, but our attorney said we did have the right to ask him if he was tested specifically for corona. His test returns will come back within the week. We informed our shareholders of what happened.

I'm not sure if you have the right to identify the s/h who tested positive, but I think the Board must err on the side of caution and act ethically to inform all s/h that someone has tested positive.

If the s/h were not informed, imagine the anger that would ensue once word got out (and it WOULD eventually get out) that the Board withheld info that a s/h had tested positive for corona. That Board would be finished since their credibility would be gone. People are very scared right now. The Board needs to provide as much info as possible in order to allay everyone's fears and take control of the situation.

I'm sure there are guidelines of how to protect the other s/h (self-isolation) and to clean the building properly in these situations. The attorney can hopefully help with that, but don't be surprised if there are no specifics since this such a brand new situation for everyone.

Be honest and communicate often and provide updates. We're all figuring this out as we go along.

Good morning:

Gallet Dreyer & Berkey, LLP represents many cooperative and condominium boards throughout the City. Please see below for our recent guidance on COVID-19 related issues for coop and condo Boards and managing agents (collectively, the “Landlord” or “Landlords”).

The full HTML is available at the URL: https://www.gdblaw.com/QUESTIONS-and-ANSWERS-Coop-Condo-COVID

Q: What are the Landlord’s legal obligations to protect buildings against COVID-19?

A: In general, an owner of a multiple dwelling has a duty to maintain the premises in good repair and in a reasonably safe condition. This standard of care may well be applied to the corona virus. Landlords should follow the guidelines from the CDC and local authorities which are outlined in our prior memo to limit the risk of potential claims.

For further guidance please visit the CDC and NYC online guides listed below, for which links are available on our website: https://www.gdblaw.com/QUESTIONS-and-ANSWERS-Coop-Condo-COVID

- CDC – Home Cleaning and Disinfection
- NYC Department of Health Coronavirus Disease General Disinfection Guidance for Commercial or Residential Buildings, dated March 5, 2020
(the “NYC Guidance”)

Q: What about Annual Meetings? Are In-Person Meetings Required? May it be postponed and/or held by telecommunication or other electronic means?

A: Annual meetings may be delayed, despite any fixed date in the by-laws for a meeting. The Board may either amend the by-laws, or decide to notify shareholders that the meeting will be delayed due to current health-related conditions. If a meeting is not held within 13 months of the previous annual meeting, a shareholder may petition a court to order a meeting. Such proceeding would take many months before an order was obtained, given the current status of the court system, so it is an unlikely remedy to be followed.

The Business Corporation Law allows an annual meeting to be held by reasonable means, which may include audio webcast or other broadcast of the meeting and voting may be conducted electronically via internet voting.

Each building’s by-laws should be reviewed to determine the best method for postponing the annual meeting or holding it via electronic means.

Q: What about Board meetings?

A: Boards are not required to hold in-person meetings. The Business Corporation Law, Section 708(c), allows Board meetings to be held by conference telephone, provided that Board members may participate by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time.

Q: Should the Landlord close all gym facilities?

A: Recently, Governor Cuomo announced an Executive Order that requires all gyms to be closed until further notice. The Executive Order did not distinguish between public or private gyms, or gyms of a particular size, so the Order should be read as applying to all gyms of all sizes. The Executive Order reads, in relevant part: "Any gym, fitness centers or classes, and movie theaters shall also cease operation effective at 8 pm on March 16, 2020 until further notice."

Q: What should the Landlord do in the event there is a suspected infected individual in the building?

A: If the Landlord or a resident has a reason to believe that a resident has contracted COVID-19 or is exhibiting symptoms of the virus, we recommend that the Landlord take the following precautions:
- Keep the names of suspected infected individuals confidential from other residents until consent to release the information to them is obtained.
- Obtain written consent from the suspected individual to share their status with the other residents of the building.
- Direct the building staff when interaction with the suspected individual is required to follow the recommended protocols as described in the NYC Guide, i.e. request the suspected individual to exit the room, wear a protective face mask and properly sanitize after the visit.
- Advise all infected or quarantined persons that deliveries will be left outside the apartment door, that the delivery (or staff) person will ring the doorbell to advise of the delivery and will depart immediately without interacting with such person.

Q: What should the Landlord do in the event there is an infected individual in the building?

A: In addition to the above, regulations require that the Landlord notify the authorities of a confirmed case.

Landlords should alert all residents that there may be a confirmed case in the building, and remind them to follow the health guidelines. Landlords should explain the measures that are being taken to prevent its spread (e.g., the person is following all governmental protocols for quarantine). Personal privacy considerations must be taken into account, so Landlords should not name the infected individual or identify that person’s specific location, without obtaining that person’s written consent.

The notice to residents should specify that the unnamed resident is self-quarantining, or that he or she is under governmental order not to leave the apartment, and that safe procedures are in place for ministerial tasks such as disposing of trash or receiving mail.

If other building residents inquire who the infected resident is, to protect the resident’s right to privacy and to remove fear that such person might be publicly ridiculed or shamed, Landlords should not disclose the infected person’s name or apartment, without obtaining that person's written consent.

If a Landlord learns that the infected person is not following protocol, then appropriate authorities, like the New York State Department of Health and the CDC, should be contacted immediately.

10 NYCRR 2.12 creates an obligation to report a communicable disease to a city, country or district health officer when no physician is in attendance. When there is a physician in attendance the medical professional is required to report the disease by CDC and the Health Department.

Q: Who may be deemed “Essential Employees” for buildings to maintain resident services?

New York State’s guide for their employees, during their COVID-19 containment efforts, states that essential employees shall include “Maintenance, Safety & Security, Fire Safety, Capital Services, Emergency Management, Food Service Workers, Housekeeping staff, Cooks and Cleaning Staff.” We can argue that the same rules should apply for building employees.
The Center for Disease Control (the “CDC”) defines essential business functions, jobs, or roles as those which are required to maintain business operations. So again, building employees needed to maintain operations should be essential.

The NYS Dept. of Health advises that essential employees are those which the building deems essential for the performance of services in that individual building. Therefore, doormen, porters and supers may be “essential employees.”

Case law regarding the warranty of habitability also states that maintenance and janitorial persons perform essential functions for the building. Park W. Mgmt. Corp. v. Mitchell, 47 N.Y.2d 316, 329, 391 N.E.2d 1288, 1295 (1979).

For all of the above reasons, we believe that maintenance, security and cleanliness are considered essential functions to be coordinated for the health and safety of a building and its residents, and those performing these functions would be considered “essential employees.”

Q: What should a Landlord do if a member of the building staff tests positive for COVID-19?

A: We recommend that the Landlord should send home all staff members who worked closely with that infected individual for a 14-day period to ensure that the infection does not spread and ask that the infected staff member identify all individuals who worked in close proximity (three to six feet) with him or her in the previous 14 days, to ensure that all potentially infected staff are sent home. In the event this results in a building having an insufficient number of available staff, Landlords may be required to find temporary staff.

Landlords should also undertake a deep cleaning of the affected workspaces and common spaces. Lastly and importantly, the Landlord should advise all residents that a staff member has tested positive and the building is taking all necessary steps and precautions to minimize risk to its residents.

Q: What is the Board’s obligation to protect its staff?

A: The Board has an affirmative obligation to protect its staff as set forth by the Occupational Safety and Health Administration guidelines (“OSHA”) and provide a place of employment free from recognized hazards which may cause death and harm.

The following protocols are recommended by OSHA:
- Landlords should promote frequent and thorough hand washing, including by providing staff and visitors with a place to wash their hands. If soap and running water are not immediately available, provide alcohol-based hand rubs containing at least 60% alcohol.
- Landlords should explore whether they can establish policies and practices, such as [note – we are talking about doormen and porters] flexible work hours (e.g., staggered shifts), to increase the physical distance among staff and others because state and local health authorities recommend the use of social distancing strategies.
- Landlords should introduce options for conducting essential operations with a reduced workforce, including cross-training workers across different jobs in order to continue operations or deliver surge services.
- Require staff to stay home if they are exhibiting symptoms of COVID-19.
- Encourage respiratory etiquette, including covering coughs and sneezes.
- Encourage staff when entering individual homes to inquire with residents if they are exhibiting symptoms of COVID-19 and if they have traveled to high-risk areas. If the resident answers yes to either of these questions, and the visit may be postponed, it is encouraged that the staff postpone the visit. If that is impossible, the resident should remain in a different room during the visit with the door closed, if possible, wear a face mask, and the employees should immediately wash their hands for at least 20 seconds with soap and water or use an approved alcohol-based hand sanitizer.
- Implement a course of action for prompt identification and isolation of infected individuals.
- Ensure there are hand sanitizers, soap and sanitized towels readily available for all staff.
- Additionally, the Board may issue a questionnaire to staff which is compliant with ADA guidelines (link on website).

For further guidance please visit the OSHA online guide: OSHA Guidelines for Employers (link on website).

For further guidance please visit the following online guides:
CDC – Guidelines for Employers (link on website)
EEOC -Guidelines (link on website)

Q: Can staff members refuse to work with residents?

A: Staff members may refuse to take on an assignment which is considered to be an unsafe work assignment. However, if another staff member deems the situation safe, has taken the necessary steps to protect against COVID-19 and the Landlord provides the staff member with proper gloves and equipment, then that staff member may perform the assignment. In this situation, we would recommend erring on the side of caution and request that another staff member who is comfortable with the assignment perform the task.

Q: Is revealing the identity of a suspected or infected individual a violation of the ADA?

A: While Boards may have to engage in a balancing act of protecting its residents from infection and the privacy rights of suspected or infected individuals, the ADA might come into play. According to the Americans with Disability Act (the “ADA”), generally the flu and other conditions which are lasting less than six (6) months are not considered a disability. (42 U.S.C. § 12102(1)) However, complications arising from COVID-19 may lead to a disability covered under the ADA. We would recommend that because Boards must maintain their fiduciary duty to their shareholders as well as individuals’ right to privacy (as medical records are confidential information) to refrain from sharing the status of a suspected or infected individual to other residents and staff; however, the Board could and should share the information with New York State Department of Health and the CDC.

Q: Is revealing the identity of a suspected or infected staff member a violation of the ADA?

A: According to the ADA, generally the flu and other conditions which are lasting less than six (6) months are not considered a disability also applies to employees (29 C.F.R. § 1630.2(j)) and as mentioned in the above, complications arising from COVID-19 may lead to a disability covered under the ADA and employment law. Due to the unknown risks and complications related to COVID-19, we recommend the Building err on the side of caution and refrain from disclosing this confidential medical information to a limited group, including: Supervisors (to implement necessary work restrictions and accommodations), first-aid and safety personnel (if the disability requires emergency treatment), workers' compensation state offices and insurance carriers, government officials investigating ADA compliance. Employers should refrain from sharing this information with co-workers and residents.

Q: Is sharing the status of a suspected or infected individual a violation under HIPAA?

A: HIPAA is short for the Health Insurance Portability and Accountability Act. It provides patients’ security provisions and data privacy, in order to keep patients’ medical information safe. According to the U.S. Department of Health and Human Services (HHS), HIPAA’s privacy act only applies to covered entities and business associates of covered entities. Landlords are not considered such.

We hope the above is helpful for you. Please feel free to contact us if you have questions concerning the above guidance (ajb@gdblaw.com).

1. If someone is unable, i.e. on a ventilator, to sign permission to disclose COVID to neighbors they may have had contact with in an apartment building isn't there a duty to warn on the part of a condo board or management company, so that those exposed neighbors can be on watch or quarantine? What happened to duty to warn known exposure?

Ringaleavio (reminds me of my yute in Canarsie!),

I mentioned earlier when I responded in this thread that "I think the Board must err on the side of caution and act ethically to inform all s/h that someone has tested positive. But, that's just my opinion and I'm not an attorney.

But, as Steven has said, you should check with the Board's attorney before taking any action because everyone's rights must be considered.

My yute was in Queens, but great game anywhere.