By Emma Whitford

Law360 (June 10, 2020, 8:24 AM EDT) -- New York City tenant attorneys say the city's civil and housing courts are not ready to safely reopen, as court staff return to work across the city Wednesday morning.

In a Wednesday letter to Chief Administrative Judge Lawrence K. Marks, attorneys representing 19 legal service providers said the courts should remain closed pending input from health experts in light of the coronavirus pandemic.

"We urge you to halt the reopening of the courts until you have developed a thorough safety plan for reopening, informed by health experts, legal advocates and other key stakeholders," the groups, including the Legal Aid Society, the Bronx Defenders, and New York Legal Assistance Group, wrote.

"Fundamentally, we believe that no New Yorker should be evicted, especially right now, while the city and state, their schools and other institutions, remain closed," they added.

This week's guidance represents a first step, the Office of Court Administration said. Judges, their staff and court personnel will return to courthouses, occupying judges' chambers, clerks' offices and back offices. Visitors will be screened for virus symptoms. 

Any court proceedings will be conducted virtually, and a blanket moratorium on evictions remains in place at least until June 20. New York City has met Gov. Andrew Cuomo's public health benchmarks for this first phase of reopening, according to the office.

"Everyone is aware of our plan," courts spokesperson Lucian Chalfen told Law360. "As of [today], people can come in and file papers for any action other than evictions."

"The first phase of resuming in-person operations of courts in New York City has been a result of both our experience with court buildings upstate and a careful, measured, deliberative process that has included court managers, unions, bar groups and anyone else who has a stake in how our courts will move forward," Chalfen said.

Landlord attorney Michael Rosenthal, founding partner at Hertz Cherson & Rosenthal PC, and president of the Kings County Housing Court Bar Association, said he is satisfied.

"The way they're planning on reopening is going to be very slow with very few people back in the building ... so I have no problem with what their thoughts are at the moment," Rosenthal told Law360 on Monday.

But union leaders that represent court workers disputed OCA's message of coordination. What they've seen to date does not inspire confidence for the months ahead, they said.

"I'm very much concerned for my members at this point," Glenn Damato, president of the New York State Court Clerks Association, told Law360 on Monday. "Nobody's telling me their plan. Everyone's hiding out from me. OCA is hiding out."

Damato said he's particularly worried about the housing court at 141 Livingston St. in downtown Brooklyn, which Civil Court Administrative Judge Anthony Cannataro recently acknowledged is cramped and ill-equipped for social distancing.

"For lack of a better term, it's a nut house," Damato said. There are only three elevators, and "people aren't going to hoof it up to the eighth floor [courtrooms]," he said.

Damato would also like all courthouses to update their ventilation systems, a responsibility OCA says lies with the New York City Department of Administrative Services.

David Wayne, chair of the court interpreters within DC37, said he appreciates OCA's willingness to bring back staff gradually, in shifts. Still, "we believe that OCA is rushing to go back to work," he said. "Particularly housing court in Brooklyn and the Bronx use a lot of recycled air." 

Dennis Quirk, president of the New York State Court Officers Association, said some courthouses still lack floor markings and Plexiglas guards. "All they [OCA] do is tell you it's going to happen, but it hasn't happened," Quirk said.

A May 29 memo from OCA details public safety guidance for court staff, including daily disinfecting and mask requirements. Use of water fountains is prohibited, according to the memo, and crowded elevators "should … be avoided."

Quirk said guidance urging court personnel to reuse masks is concerning. The May memo states that "judges and nonjudicial personnel using USC-issued face masks are expected to take proper care to allow for reuse of their masks to the fullest extent possible."

Chalfen told Law360 that staff can also use their own masks. 

Attorney in charge of Legal Aid's Queens Housing Office Sateesh Nori, who helped draft Wednesday's letter, said that his organization has declined to attend tours of the courthouses in recent weeks.

"We don't want to rubber-stamp any efforts to reopen the courts and allow any implication that we're in support of it," he told Law360.

Nori worked out of Brooklyn housing court for 10 years. "There's no possible way that you could socially distance when hallways are three-and-a-half feet wide," he said. "It's like packing people into a subway car that's not going anywhere. Why would you do that?"

In a June 4 Zoom call with attorneys, Bronx Housing Court Supervising Judge Miriam Breier said the next few weeks "are really just going to be court staff so we can get ready for the eventual reopening of the court."

Rosenthal, the landlord bar leader in Brooklyn, predicted that "until [Monday] June 22 I can't even serve demands. And since demands are 14-day notices, I'm thinking it will be three days after that before I'm filing new [eviction] cases."

But tenant attorneys said that July is just around the corner. A flood of new eviction cases is expected. The court says that tenants without attorneys can come into courthouses to "safely access essential court services."

"They haven't clarified what's going to happen," said Joanna Laine, a member of the Association of Legal Aid Attorneys. "It's a really distressing situation because we don't know how to advise our clients."

As of late April, more than 150 New York court staff had contracted COVID-19. Three judges have died. 

--Additional reporting by Frank G. Runyeon. Editing by Rebecca Flanagan.

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