Governor Cuomo recently announced his proposed State Budget for 2020-21 and it is making the many of us working with the elderly or disabled very nervous. The proposed budget states that $2.5 billion must be cut from the Medicaid program. Although the proposed budget does not specify which aspects of the Medicaid program will be cut, it does set up a Medicaid Redesign Team (“MRT”) designed to consider the aspects of the Medicaid program that should be changed or eliminated. These recommendations are expected to come out in mid-March.
Although no one knows for sure what these recommendations will be, we have some good guesses as to what is on the chopping block. The first item under the microscope is the Consumer Directed Personal Assistance Program (“CDPAP”). The CDPAP program allows consumers to recruit, hire, and direct their own home care workers, rather than using caregivers from agencies. In many cases, the most appropriate and suitable care can best be provided by a relative or other chosen caregiver rather than an agency.
The second item is the Spousal Refusal. The Spousal Refusal is utilized by many couples applying for long-term care benefits for an ailing spouse – either at home or in a facility. This essential eligibility strategy ensures that the “well” spouse can protect needed resources and income to pay living expenses. The elimination of this strategy would be devastating to many throughout the state as it would mean that both spouses would need to be impoverished to get on the program.
Various NYS bar associations are advocating for these needed programs. We at CBMS continue to vigilantly watch the changes to the Medicaid program and we urge our friends, colleagues and clients to be proactive about their own Medicaid planning. We are always here to address any questions and concerns.
CBMS is proud to announce that associate attorney David de Barros has been promoted to Partner, effective as of Jan 1, 2020.
CBMS Partner Robert Barnett recently presented a lecture through Lorman discussing how to utilize passive activity losses including recent tax legislation and cases.
With so many new tax rules, it is important to be informed before the upcoming tax season Lorman has graciously offered this 93-minute lecture to our friends and colleagues at a 50% courtesy discount. The course is eligible for 1.5 CPE credits in Connecticut, New Jersey and 9 other states.
Click the link below if you would like to access it as either an OnDemand Webinar, an audio file and reference manual delivered on USB flashdrive, or MP3 download of the webinar along with reference manual.
CBMS is pleased to report the success of our 5th annual Interchurch Center Conference. This year, titled ‘”Reenvisioning Mission and Ministry: Creative Strategies for the Church of Tomorrow” had amazing speeches from all of our speakers, beginning with our Keynote address: How We Gather’s Casper ter Kuile. Casper is the co-founder of Sacred Design Lab, a research and design consultancy working to create a culture of belonging and becoming. His engaging speech gave audience members opportunities to reflect and converse with each other, but also to ask thought-provoking questions and learn about the parallels of gathering in different circumstances.
Bill Woolsey, founder of the FiveTwo Network, and Melissa Spas, Director of Education and Engagement of the Lake Institute on Philanthropy and Giving, rounded out the rest of the speakers with their own respective talks on Christianity’s place in leadership, and the ways beyond monetarily that we can contribute philanthropically.
The conference was wrapped up with two panels, first a diverse panel of pastors from various backgrounds and denominations speaking of their various experiences as leaders of the faith in New York. The Reverends Cleotha Robertson, Andrew Durbidge, William Critzman, and Lenny Duncan delivered touching anecdotes about the different struggles that come with leading a congregation, being LGBT, not having enough money to renovate appropriately, and more. Ultimately their different backgrounds demonstrate the individual perspectives that they bring to the table in order to solve the problems that they all face.
Finally, the Council of Church Advisors, a not-for-profit group that was a main sponsor for the Conference held a panel with its members discussing how to spearhead solutions from different professional avenues. They are a diverse group of individuals from different professions that have joined together to help address and fix the ailments presented to most modern congregations, and from a multi-faceted approach work with leaders of said congregations.
We hope all who attended enjoyed themselves and took something valuable away from the conference. Here’s to another successful conference next year!
CBMS Attorney Secures Plea Deal that Removes Pro Bono Client from Tennessee’s Death Row After 18 Years
Capell Barnett Matalon & Schoenfeld LLP attorney Elizabeth Cate recently successfully negotiated a favorable plea agreement for a CBMS pro bono client who was facing the death penalty for the second time on capital murder charges in Memphis, Tennessee. As the ABA Death Penalty Project noted “a term-of-years plea deal for a reduced charge on a remand capital case is extremely rare.” Ms. Cate and her co-counsel also uncovered new evidence that will provide the client, Andrew Thomas, with a basis to challenge his federal convictions and life sentence on charges stemming from the same 1997 armed robbery for which he faced charges in Tennessee state court.
Under the plea agreement, reached on the morning that opening arguments in Mr. Thomas’s re-trial were scheduled to begin, Mr. Thomas entered an “Alford plea” to one charge of Murder in the Second Degree and in return, the Shelby County District Attorney’s Office agreed to a sentence of 25 years. An “Alford plea” is a guilty plea under which the defendant does not admit that he is guilty of the crime charged, but admits that, if he went to trial, the evidence presented by the prosecution would likely result in his conviction. Under local rules, Mr. Thomas will receive credit for the 22 years he has already served in custody, making him eligible for release from state custody within the next three years.
Ms. Cate began working on Mr. Thomas’s federal and state habeas corpus petitions in 2013 while at her prior firm, which acquired the case through a referral from the ABA Death Penalty Project. In 2017, she and her team successfully vacated Mr. Thomas’s state conviction and death sentence for felony murder charges in the Sixth Circuit Court of Appeals. A panel of the Sixth Circuit found that Mr. Thomas’s conviction and death sentence should be reversed because the state prosecutor had a duty to disclose to Mr. Thomas’s trial counsel a $750 payment that law enforcement made to Mr. Thomas’s ex-wife after her testimony against him at his 1998 federal trial on armed robbery and weapons possession charges relating to the 1997 armed robbery. Mr. Thomas’s ex-wife also testified at his state trial for capital murder charges three years later stemming from the delayed death of the armored car guard shot during the robbery. Mr. Thomas’s lawyers in both of his trials were never told about the payment. The Sixth Circuit found that “the prosecutor had a duty to disclose this payment rather than allow the witness to commit perjury by denying its existence” and that failing to disclose this evidence was “particularly egregious.”
A re-trial in Shelby County criminal court was scheduled for July 2019. Ms. Cate, along with appointed Memphis counsel Claiborne Ferguson and Mike Working, were prepared to challenge the state’s claims that he shot the guard in the robbery and that the guard’s eventual death over two years after the shooting was a direct result of the gunshot wound inflicted during the robbery. After four days of jury selection, and extensive negotiations with the Shelby County DA’s Office, the prosecutor agreed to the deal that Ms. Cate and local counsel proposed – an Alford plea to Murder in the Second Degree with a 25-year sentence.
Partner Joseph Milano, representing the Metropolitan New York Synod of the Evangelical Lutheran Church in America (“Synod”), defended the Synod in a case against Eltingville Lutheran Church (“Eltingville”), one of their nearly 200 interdependent member churches. After a nearly two year ecclesiastic process, the Synod Council determined that Eltingville could no longer fulfill the purposes for which it was formed and took charge and control of Eltingville’s property pursuant to Church doctrine and polity and New York law. Eltingville sought to have the New York State Supreme Court nullify the decision of the Synod Council and prohibit the Synod from imposing synodical administration at Eltingville. The Synod moved to dismiss Eltingville’s complaint, arguing that the Supreme Court lacked jurisdiction over this internal church dispute because the decision of the Synod Council was a nonjusticiable religious dispute. The Supreme Court granted the Synod’s motion. Eltingville appealed to the Appellate Division, Second Department, which affirmed the decision of the lower court, stating that the “First Amendment forbids civil courts from interfering in . . . religious disputes” and that by “uniting with a denominational body, a local congregation consents to be bound by the ecclesiastical determinations of the denominational government, subject only to such appeals as” that denomination itself provides.
Mr. Milano represents many denominations and has successfully litigated numerous cases related to governance of religious organizations.
A link to the full article below:
June 25, 2019
Housing Stability and Tenant Protection Act of 2019
A.8281/S.6458 (C.36 of the Laws of 2019)
Adopted June 14, 2019
On Friday, June 14, 2019 Albany lawmakers approved, and Governor Cuomo signed, legislation entitled The Housing Stability and Tenant Protection Act of 2019. A technical correction by way of a Chapter Amendment passed the Legislature on June 20, 2019 and was signed by the Governor on June 25, 2019. This legislation will significantly change New York State’s rent laws.
In prior years, the rent regulation law was up for examination and renewal, based on whether a housing crisis still existed, every 4-8 years. Now the rules have no expiration date. Additionally, other municipalities outside of New York City and its neighboring counties of Rockland, Westchester and Nassau may also opt-in to the provisions of stabilization.
A.8433/S.6615 – Part Q (C.39 of the Laws of 2019)
Effective Date: June 14, 2019
The Chapter Amendment provides a series of technical corrections and edits to the adopted bill. The Rent Regulations sections of the bill (Part Q) are retroactive to the same date as Chapter 36 of the Laws of 2019.
SUMMARY OF CHANGES TO RENT STABILIZATION LAW
Please note, in parentheses is the relevant sub-section of A.8281/S.6458 for reference.
Changes to stabilization:
– Sunset Provision: Eliminates the sunset provision of the Emergency Tenant Protection Act (ETPA) and makes rent regulation permanent (Part A).
– Extension of the ETPA state-wide as an opt-in program by individual counties meeting the criteria of a housing emergency, as defined by a vacancy rate of less than 5% (Part G).
– High-rent vacancy and High income/high rent (luxury) deregulation are eliminated (Part D).
– “Owner use” provision limited to a single unit for a “immediate and compelling necessity” and lowers the tenure provision from 20 years to 15. Additionally, tenant is due damages and reasonable attorneys’ fee for fraudulent statements (Part I).
– Non-profit status: Units rented by non-profits for homeless must remain in stabilization (Part J).
– Overcharges – extends the overcharge look back from four to six years, allows for the examination of all available rental history, no “safe harbor” for proactively providing refunds (Part F).
– $10 fee is increased to $20 per unit to offset the cost of administering the ETPA (Part K).
– DHCR is subject to greater accountability through an annual public reporting requirement (Part L). According to the Chapter Amendment, it must promulgate its rules and regulations and have its centralized electronic retention system operational by June 14, 2020.
Changes that impact 421a/Affordable New York
– As amended by the Chapter Amendment, A.8433/S.6615, there are no changes to the 421a or Affordable New York programs’ stabilization status.
– However, those changes outlined in Part M that affect all rental units would apply, and if an owner sought a co-op or condo conversion, those changes as outlined in Part N would apply as well.
– Elimination of the vacancy allowance.
Status of De-Regulated Units prior to the 2019 Act
- The Chapter Amendment adds clarifying language that units lawfully deregulated prior to the adoption of The Housing Stability & Tenant Protection Act of 2019, Chapter 36 of the Laws of 2019 are not being re-regulated.
Changes that impact the ability to raise rents to cover expenses or improvements:
– 20% vacancy allowance and longevity bonus are eliminated (Part B) and prohibits a rent guidelines board (RGB) from instituting vacancy allowances (Part C)
– Preferential rents cannot be increased to the legal rent at renewal unless such rents are set pursuant to a regulatory agreement with a local government agency and uses project based rental assistance (HUD Funding) where the rents are set by a federal, state or local governmental agency (Part E)
– Rent controlled apartments now limit the maximum collectible rent increase to a five-year average of RGB increases and eliminates the fuel pass through (Part H)
– Individual Apartment Improvements (IAIs) are significantly curtailed along with increased oversight by DHCR (Part K):
o Improvements limited to $15,000 cap that can be expended on no more than three separate IAIs within a 15-year period.
o Licensed contractors must be used and there can be no common ownership between the landlord and the contractor or vendor.
o Increases shall be 1/168 for buildings with 35 or less units or 1/180 for buildings with more than 35 units, for a period of 30 years.
o Surcharges are eligible for increases but such increases must also be removed at the end of 30 years.
o Mandates DHCR to create a notification and documentation procedure and the electronic retention of such.
o The Chapter Amendment requires that forms for tenant consent of IAIs are provided in English and the top 6 other languages spoken in the state.
o The Chapter Amendment clarifies that new caps on rent increases for IAIs will go into effect at the next lease renewal for affected tenants.
– Major Capital Improvements (MCIs) are significantly curtailed along with increased oversight by DHCR (Part K):
o Increases shall be capped at 2% for a period of 30 years, amortized at a 12-year period for buildings with 35 or less units or 12.5 years for buildings with more than 35 units.
o For any previously granted MCIs between June 16, 2012 and June 14, 2019, increases will be capped at 2% instead of 6%. The Chapter Amendment clarifies that new caps on rent increases for MCIs will go into effect at the next lease renewal for affected tenants.
o Surcharges are eligible for increases but increases must cease at the end of 30 years.
o Licensed contractors must be used and there can be no common ownership between the landlord and the contractor or vendor.
o DHCR must set a schedule of reasonable costs for MCIS, included a ceiling for what can be recovered, and prohibits group work done in an individual unit that is otherwise not an improvement to an entire building.
o The law prohibits MCI in buildings with fewer than 35% of units that are stabilized.
o The law specifically prohibits MCIs if the landlord is receiving federal grants or insurance proceeds for the repair. However, insurance and Federal recovery aid can take multiple years to process, leaving MCIs as the bridge to recover a portion of the costs. Insurance and recovery aid often do not cover the full cost of repairs following a natural disaster.
o DHCR must inspect and audit for the review of 25% of the filed MCI applications.
o Tenants have a 60-day comment/review period.
o DHCR must provide reasons for approval or denial of a MCI application.
Changes that impact ALL rental units
Part M, entitled “Statewide Housing Security and Tenant Protection Act of 2019” enacts the following changes which would apply to all rental units, regardless of stabilization status:
– When signing a new lease:
o Limits security deposits to one month’s rent.
o Bans the use of “tenant blacklists.”
o Limits application fees.
– For lease renewals:
o Prohibits denying lease renewals or an unreasonable rent increase as a retaliatory measure when code complaints have been made.
o Aside from what the lease itself may state, if the owner intends to raise the rent above 5% or intends to not renew the tenancy, the owner must send notice. If the tenant has occupied the unit for less than one year, 30 days’ notice is required. For a tenant that occupies a unit for more than one year but less than two and has a lease of more than one year but less than two, 60 days’ notice is required. For tenants that have occupied a unit more than two years or a lease term or at least two years, 90 days’ notice is required.
o Requires written notice of late payments.
– When ending a lease:
o Provides a “cure” path on behalf of the tenant to fix any issues to secure the full or partial security deposit amount.
o Limits recoverable rents for early lease termination.
o Warranty of habitability is amended to include a duty to repair, thus extending the warranty to include a retaliatory eviction due to complaints on housing condition. A finding of retaliatory eviction carries severe penalties.
– Changes to landlord-tenant proceedings:
o For all apartments, rent stabilized or fair market, RPL 226-c requires notice of rent increase of more than 5% or a notice of non-renewal depending on the term of the lease and RPL 232-a requires this notice to be served by a process server service, not mail.
o For all apartments, under RPL 232-e, a Landlord has a duty to mitigate damages.
o For all apartments, RPL 238-a limits fees that can be sought in a summary proceeding except if provided by regulation or statute.
o For all apartments, RPAPL 702 definition of Rent.
o Rent demands are now 14 days, not 3.
o RPAPL 745: Where you used to be able to seek use and occupancy in court as of the date the (notice of petition and petition) NPP was served, after Tenant adjournment of more than 30 days and get dismissal of defenses and counterclaims if not paid, now it is 60 days, a Tenant request to seek counsel does not count, the order to pay is only as of the date of the order not back to when NPP served and it must now be on written notice and if not paid pursuant to the court order, remedy is not dismissal of defenses and counterclaims, but a trial subject to Court’s scheduling. No Court order if Tenant can make a colorable claim of overcharge or hazardous or immediately hazardous conditions.
o RPAPL 749: Marshall notice now 14 not 3 days. Eliminated that issuance of warrant cancels lease [impacts bankruptcy], Court now has power at any time to stay, vacate or restore. Now Tenant in a nonpayment proceeding can pay anytime before execution of warrant. Before it used to be 5 days.
o RPAPL 753: Instead of court having discretion to give only up to 6-month stay if pay use and occupancy, it is now one year and where it applied only to tenants, it now applies to occupants. Factors to consider include extreme hardship for the Tenant. Changes the time to cure defaults after trial from 10 to 30 days.
Co-Op/Condo Conversions (Part N).
– Removes eviction plans from future filings;
– Prohibits unreasonable increases for eligible seniors or disabled tenants who are unable to purchase their units.
– Conversion rate increased to purchase of 51% of all apartments solely by tenants in occupancy.
– Exclusive right to purchase for 90 days with a six-month extension.
Mobile & Manufactured Home (MMH) tenant protections, including provisions around rent-to-own contracts, rent increases, a bill of rights, and changes in use to the underlying land are covered in Part O.
This commentary is only an illustrative guide intended to direct the reader to further investigation and due diligence. It is not comprehensive and the full text must be reviewed in order to address most questions. This does not constitute legal advice nor can it be taken as a substitute for counsel with an attorney after full disclosure of all information pertinent to a client or potential client’s particular situation.
The New York State Society of CPAs recently nominated partner Robert Barnett as chair of its Estate Planning Committee for 2019 and 2020. We are extremely proud of Robert and excited for him to represent Capell Barnett Matalon & Schoenfeld while serving as a part of this prestigious organization.
CBM&S hosted the CLE seminar “Zoning Basics” in its New York office, in association with Prestige Title LLC.
Christopher Wright, counsel in the firm’s Land Use and Zoning practice, was a featured presenter.
The firm will host the CLE seminar “Zoning Basics” in its New York office, in association with Prestige Title Agency. Christopher E. Wright, of the firm’s Land Use and Zoning practice, will be a featured presenter.