NYC Private Tenant Bar Condemns Plan To Resume Trials

By Emma Whitford
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Law360 (July 22, 2020, 5:26 PM EDT) -- Twenty members of the private tenant bar in New York City are urging a top administrative judge to reverse his decision to resume in-person and virtual housing court trials next week, citing due process and safety concerns in light of the coronavirus pandemic.

The attorneys sent a letter Tuesday night to Civil Court Administrative Judge Anthony Cannataro that said his planned resumption of pending trials this coming Monday in Brooklyn — including eviction matters — poses a "serious threat" to attorneys, their clients and court personnel.

The bar, composed of private attorneys who represent tenants, also dismissed virtual trials as a "woefully inadequate" alternative.

"Resumption of eviction proceedings compels parties to make the irreconcilable and, arguably, immoral choice between preserving either their health and safety or their due process rights and homes," the attorneys wrote.

"We ask that OCA rescind its decision to resume housing court trials, both virtual and in-person," they added. 

In a public address Monday, New York Chief Judge Janet DiFiore said parties reluctant to appear in person can request a virtual trial.

"Importantly, for lawyers and litigants who cannot appear in person for public health reasons, we are not only offering, but we are strongly encouraging, the option of virtual bench trials," Judge DiFiore said.

But the private tenant bar rejected this as a viable option.

"Even assuming a non-party witness would willingly participate virtually, there is no means for a lawyer who is taking that person's testimony to assume that such remote witnesses are not in a compromised setting," the attorneys wrote. "The taking of testimony through direct and cross examination, and the fact-finder's determination of witness credibility, are necessarily and unreasonably undermined in a virtual proceeding."

Sam Himmelstein, a partner at Himmelstein McConnell Gribben Donoghue & Joseph LLP, signed on to Tuesday's letter. He told Law360 on Wednesday that he does not believe safe and fair trials are possible at this time.

"You've seen trials, right?" he said. "You are sitting next to your client, conferring with them. They know the case probably better than you. Sometimes there's a whisper or a note passed. How do you do that sitting six feet apart?"

Other signatories include attorneys from Rozen Law Group, Collins Dobkin & Miller LLP, Goodfarb & Sandercock LLP and Ween & Kozek LLP.

Tuesday's letter also echoes concerns that public defender unions raised in recent weeks. Both groups are dissatisfied with the court's assurances about health protocols, such as temperature checks, plexiglass barriers and sparse calendars to encourage low foot traffic.

The private tenant attorneys have not, however, joined public defender unions in refusing to appear in person when trials resume.

The Legal Services Staff Association and Association of Legal Aid Attorneys, unions that represent a combined 2,000 civil and criminal defenders at more than 12 organizations in New York City, have said their members will not physically appear in court until the unions deem it safe.

"I support it," Himmelstein said. "But for reasons of malpractice claims, to be honest, and personal ethical concerns, I don't feel we as a private bar can do that unless the client supports that decision."

Office of Court Administration spokesperson Lucian Chalfen did not comment directly on the private tenant bar's letter Wednesday.

Asked to comment on the number of trials scheduled for the coming weeks, as well as any planned response to the public defender unions' stand, Chalfen told Law360 via email, "One in-person trial is scheduled for next week so far. Everyone should just relax and not presuppose what hasn't happened yet."

Legal Aid Society attorneys have so far received notice of 28 prepandemic eviction trials scheduled to resume after July 27, according to Claire Gavin, civil vice president of the Legal Aid Society shop within ALAA. Fourteen of these trials involve union members, she said.

On Tuesday, Judge Cannataro announced that in-person trials that were pending before courts closed due to the pandemic will resume next on Staten Island, "on or about" Aug. 10.

Legal Services Staff Association President Sonja Shield told Law360 Wednesday that her union's members are holding firm on their decision not to appear in person.

"Our members cannot be unilaterally directed by our employer to return to housing court until we have bargained over how we can return safely," she said.

LSSA is not refusing to participate in virtual trials Shield added, but noted that the private bar has raised "tremendously important concerns" about their efficacy.

The Office of Court Administration recently issued guidance extending a pause on evictions and related proceedings at least until early August. But news of the planned resumption of prepandemic trials, which were originally calendared before March 16, stoked confusion and concern among tenants and their attorneys. The landlord bar has welcomed the news.

--Editing by Jill Coffey.

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