By Emma Whitford

Law360 (July 14, 2020, 12:54 PM EDT) -- Tension has mounted between tenant attorneys and a top New York City civil judge, as the judge moves forward with plans to resume pre-pandemic trials in Brooklyn this month and major unions representing lawyers pledge not to return to court without more safety assurances.

Civil Court Administrative Judge Anthony Cannataro doubled down in a Friday email to tenant and landlord attorneys, saying certain in-person trials calendared before mid-March will resume July 27 — a move some tenant attorneys said is retaliatory. The other four boroughs are expected to follow.

According to Judge Cannataro, attorneys have not cooperated with court efforts to clear a backlog of 200,000 pending cases through virtual conferences and other means.

"Unfortunately, despite my best efforts, it has been disheartening to witness the lack of serious interest or widespread participation among the bar in self-initiated out-of-court negotiation or even court-initiated virtual case conferencing," the judge said.

Therefore "we find ourselves ... returning to more traditional, and admittedly less desirable, forms of compulsory dispute resolution like in-person trials of long-overdue matters," he added.

Judge Cannataro also said he and other housing court judges are willing to meet with "designated representatives from both bars" in order to address "several logistical and operational issues that need to be discussed before trials begin."

Joanna Laine, a member of the Association of Legal Aid Attorneys and co-chair of the Brooklyn Tenant Lawyers Network, said she believes Judge Cannataro is retaliating against the tenant bar by pushing ahead with in-person trials.

"The words of Justice Cannataro's Friday evening email made clear that the court's decision to resume in-person trials on July 27 is in retaliation for the legitimate concerns raised by the tenant bar about the haphazard way in which virtual appearances are being conducted," Laine said in a statement to Law360.

Concerns include short-notice scheduling and limited access to court files, according to Laine.

Lucian Chalfen, spokesperson for the Office of Court Administration, dismissed this characterization.

"Retaliating? Is that what not getting your way is called today?" Chalfen wrote Monday in an email to Law360. "What Judge Cannataro is doing is problem solving and trying to get a very busy, logistically and operationally challenged court back up and running."

Chalfen also rejected claims that the courts have not implemented adequate safety measures.

"We have consulted with our epidemiologist about protocols that must be in place for in-person operations to resume," he said.

In a prerecorded video statement Monday, Chief Judge Janet DiFiore praised safety precautions across the state.

"Court officers are doing an outstanding job of implementing COVID screening and temperature checking," she said. "Judges and court clerks are working together to stagger the scheduling of court appearances in order to limit courthouse and courtroom occupancy to safe and manageable levels."

Meanwhile, the Legal Services Staff Association and Association of Legal Aid Attorneys have dug in their heels on the matter.

"We will not physically appear in court while the pandemic continues to threaten us and the communities we work with, and we call on [the Office of Court Administration] to keep the courts physically closed until a vaccine is widely available," the unions wrote on July 9. "We stand in solidarity with any and all court workers who refuse to physically return to court at the expense of their health and safety."

Another recent statement, with a similar pledge, featured additional shops within the National Organization of Legal Services Workers.

The tenant bar decided to escalate because "the letters that our organizations were sending ... were getting ignored by the courts," Claire Gavin, civil vice president of the Legal Aid Society shop within ALAA, told Law360. "So the conversation became about how there needs to be some sort of threat of actual action before the courts take us seriously."

The attorney unions are also in touch with tenant advocacy groups across the state, echoing their call that rent should be canceled for the duration of the coronavirus pandemic, and that a blanket eviction moratorium should be reestablished.

This solidarity between tenant attorneys and advocates is relatively new, according to Esteban Girón, an organizer with the Crown Heights Tenant Union in Brooklyn.

"To think lawyers will link arms with us and prevent us from getting evicted is such a leap," Girón told Law360. "I think that in this case they have the most to lose, because these are judges that they have to continue working with."

Heavy caseloads are harmful for attorneys as a labor issue, just as they are harmful for tenants who may not get attentive and thorough representation, according to Gavin.

"If the attorney has so many cases because you haven't canceled rent and you haven't extended the moratorium, you are trying to give [proceedings] a sheen of respectability," Gavin told Law360.

Jared Trujillo, president of ALAA, added Monday that he will not send his members to court until there has been a "meaningful" meeting between the court's public health experts and outside experts hired by the unions.

Hundreds of attorneys could potentially withhold their labor citywide, according to Trujillo, depending when other boroughs move to resume in-person housing court trials.

ALAA and LSSA represent 2,000 civil and criminal defenders of the indigent at more than 12 organizations in New York City, including the Bronx Defenders, Neighborhood Defender Service, Mobilization for Justice and Legal Services NYC, in addition to the Legal Aid Society.

The Legal Aid Society declined to comment on its staff union's pledge Tuesday. Other public defender offices did not immediately respond to requests for comment.

The Office of Court Administration issued guidance last week extending a pause on evictions and related proceedings. But news of impending pre-pandemic trials in Brooklyn, including eviction matters, stoked confusion and concern among tenants and their attorneys.

Landlord attorneys have said plans to resume pre-pandemic trials are welcome. Michael Rosenthal, founding partner of Hertz Cherson & Rosenthal PC and president of the Kings County Housing Court Bar Association, dismissed the unions' pledge Tuesday as "disingenuous and unrealistic."

"The court has gone out of its way to find a safe environment in which to handle these matters," Rosenthal said. "We will be there to handle our cases. If they choose not to appear they do it at their own risk."

--Editing by Marygrace Murphy.

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