NYC May Need To Rethink Property Transfer Program

By David Holtzman/ Law360

Law360 (September 13, 2023, 8:45 PM EDT) — A City of New York program that transfers distressed or tax-delinquent apartment buildings to nonprofit agencies for redevelopment may be on shaky ground amid a recent U.S. Supreme Court ruling and a lawsuit from property owners over the city’s failure to compensate them for lost equity.

The program, intended as a means for the city to renovate run-down properties without owning them directly, came under new scrutiny in the wake of the high court’s decision earlier this year in Tyler v. Hennepin County. The court said a state must give a property owner the chance to recover equity when their home is taken for nonpayment of taxes.

The high court’s ruling also brought fresh attention to the New York lawsuit, filed in 2019 in Manhattan federal court by three owners whose properties were taken through the city’s Third Party Transfer program.

The owners said they lost substantial equity when the city transferred ownership of their buildings to nonprofits Bridge Street Development Corporation and Neighborhood Restore. The city did not make a proper effort to notify them or give them a chance to address tax and building violations before taking the
properties, according to the lawsuit.

The program is also flawed because it has taken some properties that weren’t even run-down and owed a minimal amount in unpaid taxes or utility bills, the complaint said.

If a building on a given block is targeted for inclusion in the program, the city also targets other structures on that block that are tax-delinquent, whether or not they meet a statutory definition of “distressed.” The city defined a “distressed” property as one that has a tax lien of at least 15% of its value, and either five or more hazardous violations of the housing maintenance code or a lien of more than $1,000 for repairing “dangerous or unlawful conditions.”

New York Mayor Eric Adams and the city’s law office did not respond on Wednesday to a request for comment on the lawsuit or how the city might reform the transfer program.

A working group co-chaired by the city’s then-commissioner of the Department of Housing Preservation and Development, which manages the transfer program with the city’s finance department, recommended several changes in November 2021, including better communication with affected property owners. The group also said the city should consider tax delinquency and a building’s condition equally when weighing whether to take a property from its owner.

As a candidate for mayor, Adams criticized the program for discriminating against property owners of color, but he has said nothing about it since taking office in 2022, according to Matthew Berman, co-counsel for the three plaintiffs. Most of the properties taken through the program since it began in 1996
have been in 11 neighborhoods in the Bronx, Brooklyn and the Harlem section of Manhattan, according to a 2019 New York City Council report.

“I look forward to continuing reform discussions started in recent years, to ensure the next version of [Third Party Transfer] incentivizes owners to keep properties safe, habitable and healthy, to stay up to date on municipal bills, and to seek help immediately when they run into problems,” Pierina Sanchez, who represents one of the affected neighborhoods in the Bronx as the city councilor for District 14, told Law360 on Wednesday.

Sanchez chairs the council’s committee on housing and buildings.

In the Tyler case, the Supreme Court said the state of Minnesota gave no opportunity for a homeowner to recover the excess value in their property beyond their tax debt.

New York City has claimed its program is different for a number of reasons. In its 2019 report, the council noted that after the city issues a notice of foreclosure to property owners, it gives them four months to redeem their property by paying all outstanding arrears or entering into an installment plan to do so. The city has also said owners can sell their buildings before the city takes them as long as they pay the taxes that are due, Berman said.

“That doesn’t work, because you’ve only got a four-month window to act in,” he said. “It’s not so easy to sell a house in four months. It’s like a fire sale, and you’re going to lose a huge chunk of the value by being forced to sell under distressed circumstances.”

The three homeowners involved in the lawsuit also claimed they were not even notified of their options. McConnell Dorce, who owned a 3,200-square-foot multifamily building in the East New York neighborhood, said in the complaint he received no notice of the 2015 foreclosure action or a court’s judgment against him in 2017. He said he learned his building had been transferred when Neighborhood Restore posted a notice for tenants in 2018.

The other two owners were shareholders in housing cooperatives at two four-story buildings in Brooklyn; they also claimed they had no notice of the foreclosures. Bridge Street, the new owner, informed them after the transfer process that they had been converted from owners to renters, according to the
complaint.

In a separate case, a New York state appeals court in the Second Judicial Department in May overturned a lower court’s finding that the city had not given building owners a chance to pay their taxes prior to foreclosure. The city had provided the four-month window for the owners to respond, the court said,
although it took the opportunity to question aspects of the Third Party Transfer program.

“The loss of property ownership without compensation under the TPT program ‘is a widespread occurrence,’ often affecting ‘properties that are owned by minorities,'” according to the three-judge panel’s opinion. The panel encouraged the city council to address the issue of owners’ losing the equity in
their properties.

In the Dorce case, Manhattan U.S. District Judge John Koeltl denied the city’s motion to dismiss in June 2022, finding the three property owners had a basis for most of their claims. Since then, the parties have been engaged in discovery, Berman said.

McConnell Dorce et al. are represented by Matthew L. Berman, Robert J. Valli Jr. and Sara Wyn Kane of Valli Kane & Vagnini LLP, Keith H. Wofford of White & Case LLP, and Alexander Simkin, Phillip G. Kraft, Leon Kotlyar and Gregg L. Weiner of Ropes & Gray LLP.

The City of New York is represented by Michael S. Adler, Daniel K. Crandall, Margaret A. Devoe, Andrea B. Feller and Kent M. Langloss of the New York City Law Department.

BSDC Kings Covenant Development Fund Company Inc. and Neighborhood Restore Housing Development Fund Corp. are represented by Brian J. Markowitz of Tarter Krinsky & Drogin LLP.

The case is McConnell Dorce et al. v. City of New York et al., case number 1:19-cv-02216, in the U.S. District Court for the Southern District of New York.

–Editing by Philip Shea.

Read the article at Law360 here.

US appeals court adopts lower bar for proving workplace bias claims

By Daniel Wiessner/ Reuters

Aug 21 (Reuters) – A U.S. appeals court has thrown out its unique decades-old precedent that made it more difficult for workers to prove discrimination claims.

The en banc 5th U.S. Circuit Court of Appeals on Friday revived a lawsuit claiming Dallas County, Texas, required female jail guards, but not men, to work at least one day each weekend, overruling its longstanding precedent that federal anti-discrimination law only prohibits bias in “ultimate employment decisions” such as hiring, promotions and setting pay.

That precedent imposed a more strict standard than Title VII of the Civil Rights of Act 1964 itself, which applies to any “terms, conditions, or privileges of employment,” the New Orleans-based court said.

“It is no wonder … that no other court of appeals applies so narrow a concept,” Circuit Judge Don Willett wrote for the 5th Circuit.

Jay Ellwanger, a lawyer for the plaintiffs, said the ruling makes clear that Title VII prohibits all workplace discrimination.

Read the full article from Reuters here.

Female Delta Pilot Advances Sexual Harassment, Reprisal Claims

By Patrick Dorrian/ Bloomberg Law

Delta Air Lines Inc. must face a female pilot’s claims of workplace sexual harassment and that she was retaliated against for complaining about gender bias and harassment, including by being forced to undergo retreatment for alcohol abuse.

The ruling by the US District Court for the District of Minnesota rejected Delta’s contention that the retreatment requirement and other job actions cited by the pilot weren’t adverse for purposes of proving job retaliation, but instead were “beneficial opportunities” permitted by its collective bargaining agreement with her union. Binding case law “indicates otherwise,” the court said.

According to Andrea Ratfield, Delta’s adverse employment actions also included threatening her with termination and suspension, and manipulating her use of leave so it could demote her from captain to first officer. She started drinking to deal with trauma stemming from an incident in which she was raped while attending an aviation event in September 2017, which she reported to her supervisor, Ratfield says.

Ratfield says the sexual harassment she’s experienced in her Delta tenure includes being groped, her training manager asking her on a date, a supervisor calling her “princess,” and lewd hand gestures and comments. A supervisor also allegedly bragged to others that he had seen Ratfield’s breasts while she was breastfeeding, Judge Katherine Menendez said.

Those allegations sufficiently state a hostile work environment claim under the Minnesota Human Rights Act, the judge said. The alleged acts of harassment may be “of the type brushed off by courts in different eras,” but they “comprise the sort of workplace behavior today that reasonable people” likely wouldn’t tolerate, Menendez said.

At least two of the incidents alleged by Ratfield occurred within the time period for suing, the court said.

Her retaliation claims are plausible in light of the alleged close timing—two weeks—between when she reported unfair and discriminatory treatment and when Delta refused to accept secondary test results she received that contradicted an allegedly false positive test that triggered the retreatment requirement, Menendez said.

Ratfield also alleges the retreatment facility was told that she rubbed people at Delta the wrong way and that supervisors further tried to sabotage her retreatment and effort to regain her license to fly by sharing her false positive test with the facility, the judge said.

The court dismissed Ratfield’s gender discrimination claims, including her allegations that Delta accepted secondary test results from male pilots under similar circumstances, but not from her.

Those claims require Ratfield to prove she was qualified to be a pilot and thus implicate terms of her union CBA, Menendez said. They therefore are preempted by the Railway Labor Act. RLA preemption didn’t apply to Ratfield’s retaliation claims because they don’t require proof that Ratfield was qualified for her job, the judge said.

Valli Kane & Vagnini LLP, Nichols Kaster PLLP, and Ellwanger Law LLLP represent Ratfield. Dorsey & Whitney LLP represents Delta.

Read the full article from Bloomberg Law here.

The Curious Case of Pilot Andrea Ratfield

By Sarah Hammel/The Landing

It’s the summer of 2020, and Delta Air Lines CEO Ed Bastian is drafting an epic memo outlining the company’s commitment to diversity and inclusion.

Bastian promises clarity and transparency throughout the $27.5-billion company’s journey to a less white, less male leadership. He writes that he is “committed to correcting our course as we become a more just, equal and anti-racist company.”

Meanwhile, up north in Delta’s “second home” of Minneapolis, Captain Andrea Ratfield is doing some writing of her own.

It’s June 26, a Friday. At her wits’ end, Ratfield composes an email to high-ranking Delta executives, including Bastian.

A skilled pilot with an exemplary flying record, Ratfield launched her career at Delta as a flight attendant in 1999 before joining the airline’s three percent of women pilots in 2007.

In the summer of 2020, Ratfield is balancing a full life as a commercial airline pilot, activist, mother of two young boys with special needs, and trauma survivor. Making life even more challenging: In the midst of it all, she’s been routinely sexually harassed and assaulted at work. Despite reporting the incidents to her bosses, the male pilot perpetrators are never disciplined.

In her email, Ratfield reminds the executives what she’s been through—likely touching on a few examples in a laundry list that includes a male instructor pilot coming to her hotel room at 2 a.m. for “a drink” and another grabbing her breasts—and outlines again the retaliation she’s endured since reporting the abhorrent behavior.

She closes out the letter with a request that she not be forced to work any longer with the male pilots she says are retaliating against her. She names Captain Scott Monjeau, First Officer Warren Mowry and Captain Ray Baltera.

She hits send.

On July 14, Bastian goes on CNN to tout his airline’s diversity and equity plan.

Delta’s top man talks a good game. The 6’ 3” bespectacled CEO with slicked-back salt-and-pepper hair is duly somber as CNN’s presenter pushes him on the airline’s poor record of minorities in leadership positions.

Bastian admits he’s heard Black employees speak of being left out of the “broader” discussion, and says that “…minorities of all varieties, women, are all really important…[we need to] ensure that we’re doing our very best to promote opportunity and equality.”

He adds, “They’re family. They’re my family…I have a responsibility to do a better job.”

On August 11, 2020, Ed Bastian’s diversity memo blasts out to staff and media worldwide. The subject: Taking Action.

Read the full article from The Landing here.

Homeowners Say NY Courts Defy Law On Foreclosure Aid

By Marco Poggio | June 7, 2023, 4:43 PM EDT ·  

Two Brooklyn homeowners accused New York’s court administrators and justices of the state’s Supreme Court in Brooklyn of failing to implement a state law requiring courts to assess if homeowners who are facing foreclosure and cannot afford an attorney should be given free legal representation, according to court documents filed Wednesday.

The New York Civil Liberties Union has filed a proposed class action on behalf of Carl Fanfair and Gloria Antoine, two Black homeowners who are going through foreclosure after falling behind on their mortgage payments during the COVID-19 pandemic

In their class petition, Fanfair and Antoine alleged that the housing court judges dealing with their cases failed to comply with Rule 3408 of the Civil Practice Law and Rules, which requires courts to provide additional protections and foreclosure prevention opportunities to homeowners at risk of losing their homes.

Under the rule, which state legislators enacted in the midst of the 2008 foreclosure crisis, judges must, at the beginning of every residential foreclosure case, convene a settlement conference to determine whether the debtor and the creditor can come to a resolution.

If the homeowner appears at the settlement hearing without an attorney, the court should interpret it as a motion to proceed as “a poor person.” In that case, the presiding judge has an obligation to determine whether the homeowner can continue through the foreclosure process unrepresented, or if the court should appoint a lawyer.

But in housing courts in Brooklyn and around the state, courts have failed to implement the rule, the plaintiffs argued in their suit, filed against the New York State Office of Court Administration and Justices Lawrence Knipel and Cenceria P. Edwards in their official capacities.

“When homeowners appear unrepresented at settlement conferences, courts do not deem them to have made poor-person motions and do not determine whether they should be appointed counsel,” the petition says. “Instead, courts press ahead with the proceedings, leaving the homeowners to fend for themselves as they face the loss of their homes.”

The plaintiffs also accused the administrators’ office of flouting Rule 3408’s requirement to provide pro se homeowners notice that they have a right to an appointment-of-counsel determination, and of failing to comply with the state law’s directive to train the court-appointed referees overseeing settlement conferences under the rule.

Lucian Chalfen, a spokesman for the state courts, declined to comment on the suit’s allegations.

“Courts are putting vulnerable families at risk of exploitation and permanent displacement from their homes and communities,” Terry Ding, staff attorney at the New York Civil Liberties Union, which represents the plaintiffs, said in a statement announcing the class action. “Having an attorney can make a significant difference for homeowners facing foreclosure. With this lawsuit, we want to ensure New Yorkers have a fighting chance to save their homes.”

Read the full article from Law360 here.

Class Action Lawsuit: Courts Denying Brooklyn Homeowners Facing Foreclosure Opportunity For Legal Representation

BROOKLYN – Today, the New York Civil Liberties Union, Yolande I. Nicholson, P.C., Mehri & Skalet PLLC, and Valli Kane & Vagnini LLP, filed a class action lawsuit against the Office of Court Administration and justices of the Kings County Supreme Court for failing to implement a state law requiring courts to assess if homeowners who are facing foreclosure and cannot afford an attorney should be appointed free legal representation.

In 2017, homeowners of color in New York City were more than twice as likely to receive pre-foreclosure notices—the first step in foreclosure proceedings.

“Courts are putting vulnerable families at risk of exploitation and permanent displacement from their homes and communities,” said Terry Ding, staff attorney at the New York Civil Liberties Union. “Having an attorney can mae a significant difference for homeowners facing foreclosure. With this lawsuit, we want to ensure New Yorkers have a fighting chance to save their homes. Because New Yorkers of color have long been the targets of housing discrimination, including redlining and predatory lending practices, they are overrepresented in foreclosure cases. Enforcing legal protections for homeowners in foreclosure proceedings is a racial justice imperative.”

Read the full article from Black Star News.

VKV Partner Robert Barravecchio recognized for highest level of service by peers

Martindale-Hubbell, part of the Martindale-Avvo family, is proud to announce that the following attorneys have achieved a Martindale-Hubbell AV Preeminent Peer Review Rating, awarded to only those lawyers who have the highest ethical standards, legal knowledge, and professional ability. This rating signifies a large number of the lawyer’s peers have assessed their professional ability in a specific area of practice via a secure online survey.

Congratulations to the following for garnering the highest honor, the AV Preeminent (alphabetical by last name of attorney):

A

Mary Clift Abdalla, Attorney at Forman Watkins & Krutz
Reginald W. Abrams, Member at Law Office of Reginald Abrams, Sr., L.L.C.
James P. Alder, Attorney at Alder Law Group

B

Robert Barravecchio, Partner at Valli Kane & Vagnini, LLP
Michael S. Bender, Member at Kaye Bender Rembaum
James Thomas Bennett, Member at Bennett Law Firm, LLP
Richard Bolger, Managing Member at Bolger Law Firm
Fred Bowers, Principal at Bowers Law Office 
Jonathan Braaten, Attorney at Anderson, Creager & Wittstruck, P.C., L.L.O. 
Brian Britt, Member at Kopesky, Britt & Norton, LLC
W. Mark Broadwell, Partner at Broadwell Law

Federal jury awards woman $25.1 million in sex discrimination case against Omni Hotels and Resorts

DALLAS — A former Omni Hotels employee gained a $25.1 million jury award for wage discrimination in Dallas federal court following an eight-year-long legal battle.

“It’s overwhelming. I feel I have a little bit of self-respect back. I feel that it’s healing and I can hold my head up a little high again,” Sarah Lindsley, 48, told WFAA following a federal district jury trial.

“I was just continually blocked along the way,” Lindsley said. “I was put down as a woman. I was disrespected as a woman, as being a single mother. I just put my head down, tried to work harder, tried to prove myself for years and years.”

Lindsley worked at Omni locations in Tucson, Arizona and Corpus Christi, Texas. Although she worked her way up from a server to one of just four female food & beverage directors among Omni’s fifty-plus properties, she claimed she was “paid less than men who had the same title and did the same work,” her suit said.

The lawsuit alleged that it was part of the “’boys club’ culture that permeated Omni’s Food & Beverage Division.”

“I had gone to HR countless times,” Lindsley recalled. “I had gone to my managers countless times, I tried to follow the chain of command the entire time I was there. Nothing was done, and I felt trapped as if I didn’t have a choice.”

The jury award is against Omni Hotels & Resorts and TRT Holdings, Inc.

In a statement, Omni Hotels and Resorts tells WFAA, “The proceedings remain ongoing and there is no judgment yet in this case. Accordingly, we are unable to comment on the specifics. However, we vigorously deny these claims and affirm that Omni Hotels & Resorts does not stand for discrimination in any way. We have every confidence that we will prevail as the judicial process plays out.”

“There were multiple times along the way where there were opportunities to resolve this case, opportunities for the parties to move on,” said Jay Ellwanger, Lindsley’s attorney at Ellwanger Henderson. “And time and time and time again, Omni just wasn’t interested and they didn’t want to talk, and they just wanted to try to prove a point through continuing to litigate with us.”

“And having a client that, like Ms. Lindsley, (who) was willing to persevere for eight years through all of those ups and downs,” Ellwanger said. “It’s really a unique situation and I think it speaks to how brave she is.”

Read more from WFAA here.

Residents with disabilities sue New York City over Open Streets program

By Linda Schmidt

Published April 27, 2023 7:38AM

BROOKLYN – Mill Jonakait, 77, is suing New York City. 

“The Open Streets is very troublesome,” Jonakait said. “I think they haven’t thought through what it means to people like me.”

Jonakait lives in Fort Greene, Brooklyn and walks with a limp. She was born without a femur in her right leg, making it 10 inches shorter than her left leg.  

Mill Jonakait was born without a femur in her right leg, making it 10 inches shorter than her left leg.

Expand

Jonakait and 11 other city residents with disabilities are suing the city, hoping to modify the Open Streets program.

What is the Open Streets program?

About 300 city blocks across the five boroughs are closed off to traffic so pedestrians and cyclists can use the open space. The program started during the pandemic, but it limits the amount of available parking. Jonakait is able to drive, but parking is an obstacle. 

“I usually walk with a walker around here because it’s difficult, and when I have to walk blocks, three, four, five blocks from my parked car to here. It’s a challenge to me,” Jonakait said.

About 300 city blocks across the five boroughs are closed off to traffic so pedestrians and cyclists can use the open space.

The federal lawsuit filed against the city says the Open Streets program violates the Americans With Disabilities Act.  

“It’s a real challenge and tragedy for people who are more disabled than I who can’t get their Access-A-Ride,” Jonakait said. “They can’t catch an Uber where they want to.”

“They have a right to participate in their daily life with dignity and independence.”— Attorney Matthew Berman

Attorney Matthew Berman represents the 12 plaintiffs in the case.

“They have a right to participate in their daily life with dignity and independence and not be converted into shut-ins by the fact that this program has locked down huge swaths of the city,” Berman said.

The New York City Department of Transportation oversees the program.

Spokesperson Scott Gastel issued a statement, saying, “Open Streets enhances safety, accessibility, and equity for a large number of New Yorkers using the roads including seniors and people with disabilities. The City will review the case.”

Read the full article and see the video segment on Fox 5 News New York.

‘Open’ or shut case: NYC hit with federal ADA lawsuit seeking to end Open Streets

By Ben Brachfeld

Photo By Christina Santucci/Queens Post

A dozen New Yorkers with disabilities have filed a federal lawsuit against the city, claiming that its Open Streets program violates the Americans With Disabilities Act, with the hope of scuttling the program.

The lawsuit, filed in Brooklyn Federal Court Monday, says everything about Open Streets is a ruse down to its name, deeming it “Orwellian Newspeak” and arguing it would more appropriately be called “Closed Streets.” The plaintiffs argue that by occasionally closing off some streets to car traffic, seniors and people with disabilities who can only travel by motor vehicle — particularly those living on Open Streets — are facing illegal discrimination.

“The program results in the de facto closure of New York City’s public avenues and streets to individuals with disabilities — whose only or primary access to the streets and to the buildings, businesses and services on the streets — is through the use of motor vehicles,” the 12 plaintiffs, who live in Manhattan, Brooklyn, and Queens, allege in the suit, which names the city and various organizations managing Open Street locations as defendants.

Open Streets began at the height of the COVID-19 pandemic, intended to provide open space on local streets for locked-down city residents. The program proved one of the more popular pandemic-era policies, and has returned each summer, with this year’s program set to encompass more than 300 city blocks across all five boroughs.

Volunteers with local civic groups manage the open streets, which are typically in operation for a set number of hours per day, mostly in summer months. The volunteers set up the barricades to block off car traffic, leaving the streets for the exclusive use of pedestrians and cyclists. 

Some Open Streets are entirely closed off to motor vehicles except for emergency services, while others allow access to locals seeking to park or drivers making deliveries. They often are the site of outdoor dining, public art displays, and community programming and performances. The city has declared it intends to redesign some popular Open Streets, like Vanderbilt Avenue in Brooklyn and 34th Avenue in Queens, to more permanently reflect a pedestrian focus, with the hope that barriers might not be needed.

Read more on AMNY.