What An In-Person Trial Looks Like In A Socially Distanced Brooklyn Housing Court

New York City’s housing court is one of the busiest in the nation, with a quarter of a million new filings a year. When the coronavirus pandemic struck in March, the individual housing courts in each borough were limited to virtual hearings - and only for emergencies such as lock-outs. But as these housing courts gradually reopen now, they still can’t accommodate all the tenants, landlords, and lawyers who’d normally crowd their buildings.

In Brooklyn, the solution is a new version of housing court that’s not even recognizable. Elected officials and tenant advocates had objected to reopening the civil court on Livingston Street, a former office building with tiny courtrooms and narrow hallways. As a result, while business is limited and mostly virtual at the old building, housing trials resumed in late July at the much larger Kings County Supreme Court building a few blocks away on Jay Street.

“This is the quietest trial I’ve ever had,” mused Judge Heela Capell last week during a break while presiding over her first trial since March. 

The room was noticeably quiet. No other litigants were allowed to wait on the benches, except for those taking part in the one trial she was hearing that day. Courtrooms at Livingston Street are often filled with other cases waiting to see the judge. Capell noted how the larger size of this courtroom allowed for social distancing plus other forms of protection.

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“The bench, witness stand, and court attorney area, as well as the court officer’s desk and other desks in the courtroom, all have plexiglass around them and are more than six feet apart from each other,” she said.

Temperature checks were performed in the lobby and everyone wore a mask. The Office of Court Administration said the building has the most modern type of ventilation. A staffer wiped down the witness desk between witnesses and also replaced the microphone cover.

Capell’s first trial was a family dispute. One sister wanted the other to leave an apartment in a brownstone they used to own together in Bedford Stuyvesant. Their lawyers sat at separate tables, like they normally would, but each sister initially sat behind them. This prompted attorney Domenick Napoletano to raise concerns with Capell.

“My client is not sitting with me at counsel table because she can’t,” he said. “Because she can’t be sitting with me at counsel table, from what I understand.”

The judge had some suggestions ready.

“You could write on a notepad and exchange that,” she offered. “Another thing that we could do is I can permit texting.”

The two sisters opted for written notes and each moved their chairs to face their respective attorneys from a safe distance. 

A few housing court trials have been scheduled each week in Brooklyn since late July and this month they started on Staten Island. Despite safety precautions, the court system says just a handful have actually taken place in person. Some parties have settled and others are opting for virtual trials instead, because they’re too worried to come to court. 

A Brooklyn tenant who asked to remain anonymous said she doesn’t want to go to court for her eviction case, even though she said she prefers to look her landlord in the eye. She said she had concerns about taking mass transit - and not just for herself.

“I have two witnesses that don't leave their house, they haven’t left their house since March,” she explained. “They have serious health issues as well and they’re very nervous for them and as much as they want to help me, they don’t want to die helping me.”

Virtual trials haven’t started yet but judges are now scheduling them with Skype. (The only cases moving to trial are the ones where both parties have lawyers.) Conferences aimed at resolving cases have been happening this way since March. But as anyone who’s ever conducted a business meeting online can tell you, the virtual medium has technical challenges. 

Brooklyn Legal Services lawyer Alex Drimal said she’s glad her clients can opt for virtual trials because they are mostly low-income people of color who were disproportionately affected by the coronavirus and are reluctant to travel. But they don’t always have the right technology, such as “having any Internet connection, access to a computer, access to a smartphone.”

Attorney James Kasdon, who represents landlords, shares these concerns. He also said there’s no way to tell if a witness is being coached. For example, being “fed answers or looking at papers or documents or a screen off camera that you can't see, that's providing them with answers.”

But with a backlog of 200,000 cases, housing courts can’t go back to their normal levels of density said Anthony Cannataro, the administrative judge for New York City civil courts. Right now, only old cases from before the pandemic are moving to trial. But courts will get increasingly busy once the governor’s eviction moratorium expires in October. 

Cannataro encourages anyone who’s worried about appearing in person to go online. Despite the problems, he said he hopes “some intrepid attorneys who feel comfortable with the technology try it with an eye towards refining the process.” But even after pushing more cases into the virtual space, he said that as dockets fill up the court system may find “the in-person part of the operations just isn't a sustainable model.”

This is why tenant leaders oppose any evictions during the ongoing pandemic, and want new legislation to protect renters. But landlords want their income and Cannataro said courts are too important to remain shut. At a State Senate committee hearing on Friday, the chief administrative judge for the state, Lawrence Marks, was asked about the onslaught of eviction cases that are predicted to hit the courts later this fall. "Frankly, the state can’t rely on us indefinitely to address that very controversial issue," he said, noting it's up to politicians to address any extension of the moratorium, because judges have to follow the laws.

In the long run, Cannataro said he hopes to build “a more decentralized system that doesn't require people to travel to the courthouse.” A report by the Surveillance Technology Oversight Project suggests something similar by having multiple community centers where litigants can access the courts through technology that can’t be compromised as easily as it can by lawyers and clients working from their own computers and devices. 

Another due process question involves language interpreters in a virtual trial setting. The court system says everyone can use translators who are available by phone, but concerns remain about how this works during actual proceedings

For now, the court system is hoping to move the cramped Brooklyn housing court to the more spacious Municipal Building on Joralemon Street by year’s end. Until then, it’s using a few courtrooms in the Supreme Court building on Jay Street. 

The sisters who went to trial there last week, Lucy Wade and Evelyn Collier, didn’t resolve their dispute on that first day. Wade said she wanted to come in person to help move the process along after being stalled by the pandemic. She wasn’t too fearful.

“My only concern was I thought when I walked in I thought it was going to be a room full of people,” she said, about entering the courtroom. “Then I would have been concerned but it was just us here.”

“You don’t have to worry about 25 other people standing by the door waiting to get in,” said Collier.

Wade’s attorney, Carl Husbands, said going to court in person felt “refreshing” and as normal as possible under the circumstances.

Trials will start in Manhattan and Queens on September 1st, and in the Bronx—the city’s busiest housing court—on September 15th.

Beth Fertig is a senior reporter covering immigration, courts, and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.