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NYC Housing Court Rejects 'Inundated' Attys' Slowdown Ask

By Emma Whitford · Mar 4, 2022, 7:37 PM EST ·

New York City housing courts will not schedule lighter calendars or direct judges to adjourn certain cases at the behest of legal service providers who say they are struggling to keep up with mounting caseloads, a court spokesperson said Friday.

If circumstances arise where a provider does not accept a case at an initial appearance, the tenant will proceed without counsel, according to the Office of Court Administration. The update comes as advocates and attorneys demand a reprieve, saying tenants are not getting the representation they deserve under New York City's Right to Counsel law.

The 2017 law — which expanded citywide in June — gives tenants facing eviction access to free legal representation if they earn 200% of the federal poverty guideline or less, or $55,500 for a family of four.

"If [a provider] declines to accept cases in the intake parts, those cases will move on to the resolution parts without counsel for the tenant, just as they would have if the tenant were found to be over income or otherwise ineligible for representation, and the cases will proceed," court spokesperson Lucian Chalfen told Law360 on Friday.

"The court will not reduce its calendars at a provider's request, based on its particular caseload concerns or otherwise," Chalfen said.

It was not immediately clear Friday how many qualified eviction cases have moved past intake without assigned counsel, a situation attorneys say can compound stress for tenants and leave them with fewer defenses and less bargaining power. In an email to advocates Tuesday, New York City Supervising Judge Jean T. Schneider referenced one instance that day in the Bronx, where the assigned service provider declined to accept cases.

Two major service providers in the city — the Legal Aid Society and Legal Services NYC — told Law360 that while they have yet to decline any cases, they are currently stretched thin.

"We call on OCA to immediately reverse this policy so tenants are connected to counsel before they are on the brink of eviction or are actually evicted," Adriene Holder, attorney-in-charge of the civil practice at the Legal Aid Society, said Friday.

Raun Rasmussen, executive director of Legal Services NYC, added that his team is "inundated with new cases."

New York City's Right to Counsel Coalition, composed of tenant groups and legal service organizations that advocated for the law, sent a letter to New York Chief Judge Janet DiFiore in mid-February, raising the alarm about attorney caseloads one month after the expiration of pandemic-era state law that had stayed most cases.

In the letter — which also referenced a current labor shortage among legal service providers — the coalition called on Judge DiFiore to issue instructions to only move cases in which tenants are represented and adjourn others until there is adequate capacity.

"We deserve lawyers who have enough time to represent us well," N'Jelle Murphy, a leader with the Flatbush Tenant Union in Brooklyn and a Right to Counsel Coalition member, said during a related City Council hearing Tuesday.

In his Friday comments to Law360, Chalfen said service providers must direct their concerns about caseload and capacity to New York City's Office of Civil Justice, which contracts with legal service providers to implement the Right to Counsel law.

"We await word from [the] Office of Civil Justice," the court spokesperson said. "If and when we hear from them, we will work with them."

New York City's Human Resources Administration, through which the OCJ operates, did not reply to a request for comment Friday.

Yet HRA Administrator Lisa Fitzpatrick alluded to capacity concerns at Tuesday's hearing, saying it is "still too soon to say how the housing legal system, case scheduling systems and court operations will be impacted" by the end of statewide eviction protections last month. 

So far, eviction cases are still being filed well below pre-pandemic levels. New York City has seen 10,847 eviction cases filed so far this year, according to data published by the state court system, compared to more than 37,000 in the first two months of 2019.

Lisa Faham-Selzer of Kucker Marino Winiarsky & Bittens LLP, who represents landlords in housing court, told Law360 Friday that she's not filing "anywhere near the number of cases as in 2019."

Her clients have waited long enough for their cases to proceed, she said. "How much more time are we going to give? Some of these landlords haven't collected rent for literally two years."

But newly filed cases do not paint a complete picture, according to Amanda O'Keefe, a tenant attorney with Mobilization for Justice who works in the Bronx. She said she is currently juggling 40 cases, more than half of which were filed in 2019 or 2020.

"Any concerns about capacity that have been raised to OCJ or the court have been ignored because they look at the number of new filings rather than the backlog of cases providers are dealing with," O'Keefe said Friday.

There are currently more than 219,335 active eviction cases in New York City, more than 65% of which were filed before the coronavirus pandemic, according to Office of Court Administration data compiled by groups including the Right to Counsel Coalition and the Housing Data Coalition.

O'Keefe also cited the citywide expansion of the Right to Counsel law as a good reason to slow down case processing in the near term.

"Before the pandemic, we served four ZIP codes in the Bronx and now we serve all of them," she said. "That means we're serving more tenants, which is good, but to do that we need to make sure there's time and capacity to take it on."

Marika Dias, attorney and director of the Safety Net Project at the Urban Justice Center and a member of the Right to Counsel Coalition steering committee, said these challenges are compounded by a number of vacancies at her organization.

"I'm the director of an organization that provides right to counsel and, at this point in time, we've had a lot of difficulty in hiring at a rate that keeps up with vacancies," she told Law360 on Thursday. 

Growing caseloads lead to diminishing returns, according to Claire Gavin, a tenant lawyer in Queens and member of the Association of Legal Aid Attorneys, the organization's staff union.

"The number of cases that we have affects the quality of our work and that, in turn, affects the result for our tenants," she said Friday. "At a certain point, what good is that lawyer if that lawyer is overwhelmed?"

--Editing by Janice Carter Brown.

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