By Emma Whitford

Law360 (June 16, 2020, 8:11 AM EDT) -- New York City attorneys can expect eviction cases to proceed slowly even as housing courts begin to accept new cases on June 22, New York Housing Court Supervising Judge Jean T. Schneider told hundreds of lawyers Monday afternoon.

Attorneys will be able to file eviction cases in person for the first time since coronavirus closures in March, Judge Schneider and Judge Anne Katz said during a Zoom call with bar associations. But only five or fewer people will be able to wait at the clerks' counter at any given time. Others will wait on the sidewalk. There is no electronic filing in city housing courts. 

"Anybody going in to file new cases can expect to be waiting for a long time," Schneider said.

The judge also stressed that, for the foreseeable future, there will be no default judgments in housing court. Meaning, a tenant cannot be evicted for failing to appear.

"Don't even think about defaults for now," Schneider said, adding that "we are aware that people have been tremendously ill and may still be hospitalized."

Landlord attorney Nativ Winiarsky, partner with Kucker Marino Winiarsky & Bittens LLP, told Law360 that he fears "individuals and practitioners are going to take advantage of this rule knowing that no penalty will ensue."

There is no timeline for the resumption of in-person hearings, Schneider said. Hearings will occur over Skype, with "substantial" adjournments. 

"That's all good, but I was really surprised that they are going to allow physical filings as soon as next week," said tenant attorney Sam Himmelstein, partner with Himmelstein McConnell Gribben Donoghue & Joseph LLP. "Some people are going to get on the subway and go to the clerks office and try to answer. It seems to me that it's forcing people to unnecessarily engage in risky activity." 

To avoid this, Judge Schneider said Monday, the courts will send out postcards to defendants with a phone number to call to schedule their first virtual appearance — likely not until the second phase of reopening. If tenants show up in person, clerks stationed outside the courthouse will issue them flyers with instructions to "avoid standing in line." 

Plans are forthcoming for pro se tenants who lack the technology for virtual hearings, Schneider added. "We ... are not prepared to say how we're going to handle them yet," she said. 

Some tenant attorneys said the plans sketched out Monday contradicted a Sunday letter from Chief Judge Janet DiFiore, responding to concerns from state senators that reopening housing court too quickly could endanger public health.

"Please be assured that the return of in-person proceedings in Housing Court is not imminent and is subject to no existing timeline," DiFiore wrote.

"[It's] going to sound pretty damn imminent to many tenants in NYC, especially poor people, who are not going to take any chances when they get eviction petitions, and will come down to the courthouse to answer in person," said Nakeeb Siddique, director of housing for the Brooklyn Neighborhood Office of the Legal Aid Society. 

As the courts begin to work through an expected flood of new cases, "virtual evictions are still evictions," said tenant attorney Patrick Tyrrell of Mobilization for Justice.

New York Gov. Andrew Cuomo's blanket eviction moratorium is set to expire on Saturday. Another order, dated through Aug. 20, prohibits new eviction cases against commercial and residential tenants who receive government assistance or are "otherwise facing financial hardship" because of COVID-19. It has prompted confusion among attorneys. 

Updated court directives issued June 12 state that petitioners looking to file a new nonpayment case, or enforce a default judgment or warrant of eviction, must first submit an affidavit from "a person with personal knowledge of the facts" stating they've made a "good-faith effort" to determine if a tenant qualifies for an exemption. 

"There is absolutely no guidance on this important issue," Winiarsky told Law360. "I think some guidance would be helpful to all concerned since some direct instruction would avoid motion practice consuming the court's resources." 

Tenant attorneys, meanwhile, said they plan to advise their clients not to share any personal financial information with their landlords. 

Chief Administrative Judge Lawrence K. Marks issued a standing order on March 16 that is more expansive than Cuomo's modified eviction moratorium. It states that "all eviction proceedings and pending eviction orders shall be suspended statewide ... until further notice."

"I would expect Judge Marks to clarify what he intends to do about that some time this week," Schneider said Monday. 

Asked if Marks' order could outlast Cuomo's, state Office of Court Administration spokesperson Lucian Chalfen implied that the courts will follow the governor's lead.

"No decisions have been made yet," he said. "We will wait and see what the governor decides to do."

The governor's office did not immediately respond to a request for comment.

--Editing by Rebecca Flanagan.

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