Since the issuance on January 30, 2020 of the initial Executive Order declaring a Disaster Emergency in the State of New York (EO 202), the Governor has issued ten additional Executive Orders (EO 202.1 – 202.10) Each has continued and expanding on the original order. More are expected almost daily.

Most of the Executive Orders invoke the Governor's powers to suspend various laws, rules and regulations so as to empower State agencies to rapidly act to combat the Coronavirus spread. It enables State Agencies to act without complying with many of the laws and procedures that would otherwise apply. As many of the Executive Orders incorporate by reference the laws, rules and regulations being altered, determining the precise impact on a particular business can require additional guidance.

To aid in evaluating how your business might be impacted, a summary of some of the most significate provisions impacting default servicing is set forth below. Links to the relevant Executive Orders and other guidance are also set forth below.

Governor's Executive Orders: https://www.governor.ny.gov/executiveorders

No. 202.7 includes:

• Allows Notaries to notarize documents utilizing audio-video technology provided: (i) the Notary either knows the person signing or the person displays a valid ID to the Notary during the video signing conference; (ii) the video conference must allow for two way interaction (i.e. no pre-recorded signing); (iii) the person signing must affirmatively represent he or she is physically in the State of New York; and (iv) the person signing must transmit by fax or electronic means a legible copy of the signed document directly to the notary on the same date it was signed. The Notary may notarize the transmitted copy and transmit the same back to the person.

https://www.governor.ny.gov/news/no-2027-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

No. 202.8 includes:

• Suspends commercial and residential evictions and foreclosures for 90 days;[1]
• Any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, or by any other statute, local law, ordinance, order, rule or regulation is tolled until April 19, 2020.

https://www.governor.ny.gov/news/no-2028-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

No. 202.9 includes:

• Modifies the Banking Law to allow mortgage payment forbearance for up to 90 days for banks subject to the jurisdiction of the Department of Financial Services.

No. 202.14 includes:

• Continues the suspensions and modifications set forth in prior Executive Order 202 and each successor Executive Order to 202 for thirty days until May 7, 2020.

Litigation Update

With the increasing public health emergency caused by the Coronavirus (COVID-19) pandemic, the Chief Administrative Judge over the New York Court System has issued Administrative Orders that seek to balance the need to resolve important and essential disputes with the suggested social distancing protocols. While the circumstances are in flux, below is an update on these rules and the current impact on pending and contemplated litigation.

Initially, the Chief Administrative Judge of the Court issued an Administrative Order providing that, "effective immediately and until further order, no papers shall be accepted for filing by a county clerk or a court in any matter" except certain matters deemed "essential." Important to note is that while this restricts matters that are eligible for e-filing, we have confirmed that e-recording in the land records, where available, is not restricted by this order. Thus, various items including post sale activity and Third Party closings can continue to be processed.

Notably, the order did not address discovery in pending matters, which is largely governed by agreements between the parties, and can proceed. Thus, the parties in any contested matters may exchange paper discovery, and the Chief Administrative Judge has provided that parties are encouraged to postpone any deadlines by agreement for a period not to exceed 90 days. The Chief Administrative Judge also strongly discouraged prosecution of civil matters, including discovery that required in person appearances. As such, this recommendation applies to postponing any in person depositions that would otherwise have been scheduled.

On April 7, 2020, Chief Administrative Judge Marks issued a Memorandum advising all courts throughout New York State that efforts to set up a virtual court system for essential matters has proven successful, and the next steps will be focused on the non-essential matters, which make up a vast majority of the trial court caseloads. Today, April 9, 2020, Judge Marks issued an Administrative Order that, in addition to essential matters, the trial courts will begin focusing on the following matters:

Conferencing Pending Cases – Judges are to review their dockets and assess matters that can be advanced or resolved through remote conferencing, and schedule and hold conferences upon its own initiative

Deciding fully submitted motions in pending cases

Discovery and Ad Hoc Conferences can be held as long as it does not require the filing of papers

Video conferenced conducted by the Court

Chief Administrative Judge Marks noted that no new nonessential matters may be filed at this time, nor may new papers in pending nonessential matters be filed yet.

For more information contact:

Attorney: Natalie A. Grigg, Esq.

Phone: 585-445-2610

Email: ngrigg@woodsdefaultservices.com

https://www.woodsdefaultservices.com/

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