By Emma Whitford

Law360 (May 29, 2020, 1:06 PM EDT) -- The Kings County Housing Court in downtown Brooklyn, New York, is so cramped, a New York City administrative judge said, that he wouldn't blame anyone for not wanting to enter the building anytime soon. 

Civil Court Administrative Judge Anthony Cannataro spoke candidly Tuesday on a Zoom call with dozens of attorneys, admitting that preparing to reopen the housing court, located inside Kings Civil Court at 141 Livingston Street, poses serious challenges in light of the coronavirus pandemic.

"There is no facility that poses more difficulties with respect to a safe reopening, whatever that is, than 141 Livingston Street," Judge Cannataro said. "It is a cramped structure, it was never really designed to host a court."

"It's not impossible to create a safe working place in any courthouse ... but it is very difficult to create a safe working space at 141 Livingston Street," he continued.

There is not yet a timeline for reopening courts in New York City. In a May 25 address, Chief Judge Janet DiFiore said that the court system is following Gov. Andrew Cuomo's regional reopening plan, based on public health benchmarks. As of Friday, 57 counties outside New York City have resumed limited in-person operations.

"Those of us who live and work in the New York City and downstate regions are understandably eager to follow in the footsteps of our upstate colleagues," Judge DiFiore said. "But we cannot get ahead of what our public health authorities are telling us."

But Judge Cannataro suggested Tuesday that a Brooklyn reopening is not too far off. The housing court is already actively preparing for an influx of new filings after June 20, when Gov. Cuomo's blanket eviction moratorium lifts.

"I believe it will be something on the order of weeks before we return to in-person operations," the judge told lawyers. "We are making plans to do that right now."

Judge Cannataro also ticked off some preliminary plans, including a major shift toward virtual court proceedings.

"It is going to be a massive change," he said. "We are no time soon going back to anything that will look like business the way it was done in December 2019. The courthouses will have far less people in them, there will be much greater emphasis on virtual operations — anything that can be virtualized will be virtualized."

The court is in a "no-default posture" for the foreseeable future, Judge Cannataro added, meaning tenants who don't appear won't risk automatically losing their cases.

"I want to make it possible so that anyone who doesn't want to travel to 141 Livingston Street doesn't have to travel to 141 Livingston Street," the judge said. "I would not quarrel with anyone's decision to stay out of that building because they don't feel comfortable working in that space."

Michael Rosenthal, founding partner at Hertz Cherson & Rosenthal PC, is also president of the Kings County Housing Court Bar Association. He represents landlords and is in favor of reopening the housing court with a major shift toward virtual hearings.

"We have to be cautious in what we put on and how we put it on, but we have to go forward," he said. "We have to proceed with litigation."

But other attorneys and people who work inside 141 Livingston said they are concerned about the small courtrooms, unsanitary bathrooms and a dearth of water fountains. The 15-story building also hosts the county's appellate term, small claims court and other civil matters.

Sam Himmelstein, partner with Himmelstein McConnell Gribben Donoghue & Joseph LLP, is part of a new coalition of tenant attorneys opposed to any short-term reopening of the housing court. He described the building as a "disease spreader."

"I don't see how it can [open], personally, until there's a cure or a vaccine," he said.

A person who works inside the court told Law360 that the second-floor clerk's office is particularly cramped. "The people that are probably going to be the safest are going to be the people behind the window plate glass," they said.

Organizer Cea Weaver of the tenant coalition Housing Justice for All also noted that there are many on-the-ground resources for unrepresented indigent tenants inside 141 Livingston Street, including a Legal Aid Society office.

"If we're moving things virtually, all of the things we've set up, intake offices ... how are people going to defend themselves?" she wondered. "If housing court can't be entirely open, then it shouldn't be open [at all]." 

In one moment of apparent levity during Tuesday's call, Judge Cannataro mentioned the possibility of hosting outdoor hearings.

"Someone reminded me after the 1918 pandemic some courts were holding trials outside," the judge said. "And I know that sounds crazy, but if there's an outdoor space where we could do a quick little nonpayment proceeding, even that's better than staying inside of 141 Livingston Street, if that's what the parties want."

"What if it starts raining?" Himmelstein later asked Law360, laughing.

Reached for comment, Office of Court Administration spokesperson Lucian Chalfen did not address the possibility of outdoor hearings, but acknowledged the challenges that lie ahead.

"It is true that, among the seven courthouse facilities where the New York City Civil Court operates, 141 Livingston Street, a privately owned commercial office building, presents unique challenges in terms of foot traffic control, social distancing and other safety measures necessary in a public health crisis such as the one we find ourselves in now," Chalfen said.

"To meet these challenges, civil court is committed to expanding and enhancing our virtual court capabilities," he added. "In addition, we will explore any and all reasonable measures to create a safer courthouse environment, as courts in New York City begin the process of resuming in-person operations, in conjunction with the state's phased reopening of the communities that we serve."

--Additional reporting by Lauren Berg. Editing by Jack Karp.

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