By Emma Whitford and Emily Lever

Law360 (September 21, 2021, 3:20 PM EDT) -- New York City housing courts on Tuesday began requiring some court appearances to be held in person — a first since the coronavirus pandemic prompted widespread courthouse shutdowns in the spring of 2020.

Once tenants appear before a judge at the outset of their eviction case and are assigned a lawyer — a process intended to take place virtually — counsel will be required to show up in a physical courtroom for a preliminary conference with a resolution judge, according to a directive from Administrative Judge Carolyn Walker-Diallo and context from Office of Court Administration spokesperson Lucian Chalfen. 

Afterward, appearances can be in person or virtual at the judge's discretion, according to the order.

Asked for the court's reasoning for permitting virtual intakes and certain virtual subsequent appearances but requiring an in-person preliminary conference, Chalfen told Law360 that in-person appearances "are more effective in getting dispositions and moving cases along."

"We are mindful of the various logistical and operations constraints, however, a slow resumption to normal will continue," Chalfen added.

The city's courthouses closed down in March 2020 as COVID-19 cases climbed, and housing courts have not been the same since, with most appearances conducted by video and evictions effectively halted. City criminal courts resumed in-person arraignments in midsummer.

The plan to require in-person appearances for newly filed cases in housing court has been met with resistance from tenants and their advocates.

Unions representing workers at the city's largest provider of housing lawyers, Legal Services NYC, held a protest this month to criticize the move, which they described as putting tenants, attorneys and the people they live with in harm's way.

In a Monday letter to the Office of Court Administration and Gov. Kathy Hochul, tenant lawyers' unions, tenant unions and state lawmakers contested the idea that courts can be made safe from the risk of COVID, saying the plan should be called off. 

"Our courthouses are among the most dangerous places in New York City," the groups said in a joint statement. "In these settings, where attendance is compulsory, maintenance is poor, and people are crowded together, a respiratory virus like the one that causes COVID-19 thrives."

This month, the New York Legislature convened to modify and extend state-level eviction protections through Jan. 15, following an August injunction from the U.S. Supreme Court that blocked a primary defense for tenants.

Under current law, most tenants who have struggled financially during the pandemic can fill out a form attesting to their hardship in order to pause or prevent an eviction case from proceeding against them until mid-January. Landlords, however, can challenge these forms in court.

Tenants who apply for an ongoing federal pandemic rental assistance program are also granted a stay in housing court while their application is pending.

In this legal landscape, cases are "probably not going to flood the court," said Matthew Tropp, director of housing at the Legal Aid Society's Bronx Neighborhood Office. But the new directive "is going to increase volume when there's no need for it."

"The court has been open and operating, albeit mostly virtual, for a long time," he added. "And the court has learned a lot."

Eviction filings are still well below pre-pandemic levels, according to a new database maintained by the New York State Unified Court System, with fewer than 31,000 cases filed citywide since January. For context, more than 179,000 cases were filed citywide in 2019.

Tenant attorneys also stressed that preliminary conferences are often quite brief, touching on scheduling and, in some cases, settlement, making a courthouse trip unnecessary. 

Landlord attorneys were more receptive to the directive in conversations with Law360.

Michael Pensabene of Rosenberg & Estis PC said he appreciates the efficiency of virtual appearances, which he predicts will continue. Yet for preliminary conferences, he said "there are advantages to showing up in person, and I think the judges get a better flavor for the case."

"The cases are not moving forward as they should virtually," said Lisa Faham-Selzer of Kucker Marino Winiarsky & Bittens LLP. "I can understand why more at-risk individuals would be more afraid to go to the courthouse, and especially Kings County, it's really congested there. But I just don't see how cases will move forward otherwise."

The court system says it's taking safety precautions, including continuing to require everyone to wear masks in courthouses. In the event a visitor or a worker tests positive for COVID, OCA will do its best to alert everyone who may have been in proximity to that person, Chalfen said.

The court will also schedule no more than five cases simultaneously for now, will not allow appearances to take place in neighboring courtrooms at the same time, and will not permit people waiting for their appearances to congregate in hallways, according to Chalfen.

The New York City Health Department reports that as of Friday, the city has a seven-day average of 1,624 new COVID cases, with 57 hospitalizations and 9 deaths. This is up from a 2021 low of 146 new cases a day in late June, but down from the peak in April 2020, when over 700 people died and over 5,000 tested positive each day.

The state court system maintains a list of personnel and visitors confirmed to have tested positive for the coronavirus, broken down by notification date and courthouse. There have been six confirmed cases in New York City housing courts since March — all in the Bronx — reported Sept. 2, Aug. 25, Aug. 16, Aug. 2, April 10 and April 1.

Hochul's office did not immediately respond to a request for comment Tuesday.

--Editing by Orlando Lorenzo.

Correction: An earlier version of this story incorrectly stated that tenants will be required to appear at the in-person conferences. 

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