Reopening Housing Court is wrong

After a brief reprieve at the beginning of the summer, the delta variant of COVID-19 has led to an increase in COVID-19 cases in New York City, with the current positivity rate hovering around 4%. The Centers for Disease Control has confirmed that the delta variant is far more infectious and transmissible than previous versions of the virus. There still remains no end in sight to this pandemic, a stark reality that is particularly felt by this city’s low-income Brown and Black residents who have been dying from COVID-19 at disproportionately higher rates.

Thankfully, Gov. Hochul signed a new statewide eviction moratorium earlier this month after the U.S. Supreme Court gutted both the previous New York State eviction moratorium and the Biden administration’s federal eviction ban. Now, New Yorkers who have experienced financial or physical hardships cannot be forced out of their homes until January of next year, averting a homelessness crisis of unimaginable proportions.

Despite these emergency measures to lessen the impact of the pandemic on New York’s most vulnerable residents, New York State’s Office of Court Administration and Chief Judge Janet DiFiore are moving forward with a haphazard plan requiring tenants and attorneys to return to Housing Court in person beginning Sept. 21. As housing attorneys who represent low-income New York City tenants whose landlords are attempting to evict them, we are deeply alarmed by OCA’s move to pack tenants into notoriously crowded Housing Court buildings at a time when COVID-19 cases and hospitalizations in New York City are increasing.

Since the state’s eviction moratorium allows landlords to challenge whether a tenant has experienced COVID-related financial or physical hardship and thus be protected from eviction, the numbers of eviction cases we will see in the coming weeks will explode as landlords do all that they can to argue to the court that their tenants aren’t covered under the statewide moratorium. This will have devastating consequences for low-income New Yorkers of color who have been bearing the brunt of the pandemic and are the same groups that are at the highest risk of being evicted, losing their homes and being displaced.

Before New York City shut down in spring of 2020, courthouses were places where COVID-19 spread quickly, and where many judges, court staff, tenant litigants, and attorneys became sick and died. Last September, an independent health and safety team found:

“In several courthouses due to the physical layout, there were no articulated plans to keep the public safe once they enter the courthouse…In these courthouses, entering the courthouses poses an unacceptably highrisk of acquiring SARS-CoV-2 due to the number of people who congregate in close proximity when forming lines and the lack of dedicated, sufficiently ventilated space to wait for courtroom appearances.”

For that reason, since March 2020, Housing Court operations have been mostly virtual. Tenants connect with an attorney when their cases are first heard by a judge either through video conference or by calling in to court. Tenants and attorneys have not been required to make in-person court appearances, except in specific circumstances when their case necessitates it. This virtual intake has saved hundreds of people from being forced to enter the cramped, often windowless, poorly-ventilated courtrooms, conditions which we know increase the risk of community transmission of COVID-19 — all without diminishing the quality of representation tenants deserve.

The sudden and reckless push to mandate in-person court appearances has no tangible relationship to any need of the litigants or their counsel. Today, we can safely contact families before their court dates, have confidential phone conversations and better assist people in securing their housing rights without risking COVID-19 transmission. Tenants are also able to safely call in to their hearings and connect to their legal representation without risking their health in the crowded halls of Housing Court.

OCA and DiFiore have chosen to ignore the science, ignore the experts, and ignore the impact of COVID-19 on our city. Their directive to require in-person court appearances will not only lead to more COVID-19 cases in the courts, but will further the spread of the virus in our communities that have been most impacted by this disease.

Virtual Housing Court has literally saved lives as COVID continues to spread in our city. Doing away with this social-distancing measure is bullheaded and anti-science, and could well usher in a new wave of senseless, preventable sickness and death. We stand with tenants, advocates, and elected officials in calling OCA to stop the forced return to in-person Housing Court proceedings.

Alajbegovic and Jacobs are tenants’ rights attorneys who provide free legal representation for poor and indigent New York tenants in New York City Housing Courts and are members of the Legal Services Staff Association union, NOLSW/UAW Local 2320.