Opinion
307948/2020
03-24-2021
Elba PEREZ, Petitioner, v. 1857 WALTON REALTY CORP, Altagracia Escotto, Mark Halpert & Joe Friedman, Respondent, and New York City Department of Housing Preservation and Development (DHPD), Co-Respondents.
Mark Cohen, Attorney for Respondents, Via email [bronxevictions@aol.com] & Dechert LLP Attn: Kaitlyn Walsh, Esq. & Rory Gledhill Esq., Attorneys for Petitioner, Via email: kaitlyn.walsh@dechert.com & Rory.Gledhell@dechert.com & DHPD, Attn: Symone Sylvester Esq., Email: Sylvests@hpd.nyc.gov
Mark Cohen, Attorney for Respondents, Via email [bronxevictions@aol.com] & Dechert LLP
Attn: Kaitlyn Walsh, Esq. & Rory Gledhill Esq., Attorneys for Petitioner, Via email: kaitlyn.walsh@dechert.com & Rory.Gledhell@dechert.com & DHPD, Attn: Symone Sylvester Esq., Email: Sylvests@hpd.nyc.gov
Shorab Ibrahim, J.
Recitation, as required by C.P.L.R. § 2219(a) :
The court has reviewed petitioner's motion for an order admitting Rory Gledhill, Esq. pro hac vice as a visiting attorney for the purposes of this case [NYSCEF Doc. No. 18-21], respondents’ opposition [NYSCEF Doc. No. 23], and petitioner's reply [NYSCEF Doc. No. 39], as well as respondents’ affidavit in support of an "in-person" trial [NYSCEF Doc. No. 22], petitioner's opposition [NYSCEF Doc. No. 24-38], and petitioner's reply [NYSCEF Doc. No. 42], and all contents of the court's file in reaching this decision.
HISTORY AND PROCEDURAL POSTURE
Elba Perez, the petitioner in this proceeding ("petitioner"), residing at 69 East 176th Street, Apt. BB, Bronx, NY 10453 ("the subject premises"), commenced this case against the named respondents ("respondents"), seeking, inter alia , an order to correct outstanding conditions in the subject premises, and an order finding respondents have harassed her.
On or about January 5, 2021, DHPD inspected the subject apartment and placed twenty-four (24) violations. On or about January 13, 2021, respondents interposed an answer. By interim stipulation dated January 18, 2021, the parties arranged access dates for respondents "to cure all remaining HPD violations that were issued on January 5, 2021," except that the violation for gas to the kitchen range was no longer an issue because petitioner had use of an electric stove.
See DHPD Summary Report printed on January 13, 2021.
On or about January 27, 2021, DHPD inspected the subject premises and removed twenty-one (21) of the twenty-four (24) violations placed just three (3) weeks earlier. The two remaining January 5, 2021 open violations [in addition to the kitchen gas] were for infestation of roaches and infestation of mice, both class "C" violations. However, both were in "defect letter" status, meaning they could only be closed [even if an inspector did no longer observed the condition] when the landlord provided proper paperwork.
There are also older open violations, including a class "B" violation for mold in the bathroom [# 13181625]. That violation was also in "defect letter" status as of January 27, 2021.
At the February 3, 2021 conference, petitioner sought an order to correct alleging uncorrected conditions and open violations. However, as the vast majority of violations had been removed and the open violations were in "defect letter" status, the court held the request for an order to correct in abeyance pending final DHPD determination regarding the open violations or upon placement of new violations.
The harassment claim, largely based on the landlord's alleged failure to correct conditions properly or timely, was adjourned to March 8, 2021 for a virtual trial.
In the interim, respondents demanded, via e-mail, an "in-person" trial. The court thereafter allowed briefing on this application. Then, on or about February 23, 2021, petitioner filed a motion for an out of state attorney to appear on her behalf pro hac vice.
DISCUSSION
Pro Hac Vice
As the proposed attorney [Rory Gledhill, Esq.] meets the standards set forth in 22 NYCRR 520.11, there is no need for this court to delve further into his qualifications since the policy in this state is to allow a party to be represented by counsel of their choosing. ( Giannotti v Mercedez Benz U.S.A., LLC , 20 AD3d 389, 390, 798 NYS2d 141 [2nd Dept 2005] ). An attorney who is admitted in another state may practice in New York if they are in good standing in their state bar, they are associated with a New York attorney who will be the attorney of record, and they are familiar with and will comply with New York's standards of professional conduct. (see 22 NYCRR 520.11 ; Perkins v Elbilia , 90 AD3d 543, 544, 936 NYS2d 134 [1st Dept 2011] ).
Consequently, the pro hac vice application is granted.
A signed Order of Admission [attached as exhibit ‘A’ to the motion] is being returned to the parties along with this decision.
In-Person Trial
Respondents request an in-person trial because, in their view, it is preferable to a virtual trial. They argue they have completed necessary repairs, and that the harassment claim is not an urgent matter and so that it is not required to be immediately heard by the court. They argue they will be prejudiced in a virtual hearing because they will not be able to present visual evidence and documentation and will not have the opportunity to have in-person testimony. Respondents claim their legal and constitutional rights will be negatively impacted if a virtual trial is held.
Petitioner opposes the application for an in-person trial. First, petitioner opposes any further delay as she alleges serious conditions remain uncorrected in her apartment. Additionally, petitioner alleges she is a 69-year-old senior citizen with underlying health concerns and, as such, an in-person trial creates a significant health risk. Finally, petitioner submits that, despite their statements to the contrary, respondents will not be prejudiced by a virtual trial.
Petitioner also alleges she had witnesses either with health concerns of their own or who are out of state.
First, the court must consider whether it has the authority to order a virtual trial when at least one party opposes.
Judiciary Law § 2-b (3) permits this court to "devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it." "By enacting Judiciary Law § 2-b (3), the Legislature has explicitly authorized the courts’ use of innovative procedures ... [and] courts may fashion necessary procedures consistent with constitutional, statutory, and decisional law." ( Wyona Apartments LLC v Ramirez , 70 Misc 3d 591, 595, 2020 NY Slip Op 20309 [Civ Ct, Kings County 2020], citing People v Wrotten , 14 NY3d 33, 37 [2009] ).
See Virtual Bench Trial Protocols and Procedures issued by the Unified Court System on or about February 11, 2021, noting that it is better practice that the parties agree to a bench trial [at page 6].
Though Covid-19 and the still ongoing pandemic are the impetus for the court to exercise these powers here, trial court have "used this authority to conduct proceedings by remote means, and appellate courts consistently upheld that authority [l]ong before anyone had heard the words "COVID-19" or "social distancing." ( Bonilla v State of New York , 2021 WL 318406, 2021 NY Slip Op 21013 [Ct of Claims, 2021], citing People v Cintron , 75 NY2d 249 [1990] and People v Wrotten, supra ).
Throughout the pandemic, courts have consistently held that virtual trials [and hearings and depositions] are preferable to indefinite delay "given the court closures required by the pandemic, ‘the months’ long delay’ that has resulted, and the continuing lack of clarity about when it will be safe to resume normal in-person operations." ( Ciccone v One West 64th St., Inc. , 69 Misc 3d 585, 593, 132 NYS3d 261 [Sup Ct, New York County 2020], citing Argonaut Ins. Co. v Manetta Enters. Inc. , 2020 WL 3104033 *2 [ED NY 2020] ; see A.S. v N.S. , 68 Misc 3d 767, 768, 128 NYS3d 435 [Sup Ct, New York County 2020] ).
The Housing Court has not resumed "normal in-person operations." If/when it does, there is no telling when/if in-person trials will move forward and when this case would ultimately be reached. As such, respondents’ position that "this matter be stayed until such time as the court may be able to have an in person trial" is unreasonable. (see Ciccone v One West 64th St., Inc. , 69 Misc 3d at 595 ).
This is particularly true since the court has largely pivoted to virtual proceedings during the pandemic. See March 22, 2021 Message from Chief Judge Difiore: "[T]here is no question that this public health crisis has taken a heavy toll on our dockets and caused significant backlogs in some of our courts, especially in our Housing Courts" "Not only are we facing large backlogs in those courts, but we are expecting large increases in new filings when the existing moratoria on evictions are lifted" (March22-CJ-Message.pdf (nycourts.gov)).
However, while this court has the power to hold virtual trials, it will not do so in every circumstance. (see Wyona Apartments LLC v Ramirez , 70 Misc 3d at 595 ["Because virtual testimony is certainly not the equivalent of in-person testimony, its application requires a ‘case-specific finding of necessity.’ "] [internal citations omitted]).
Here, respondents posit that that in-person trials are better than virtual ones. If the court accepted this truism, (see Bonilla v State, 2021 WL 318406 at *2 ["televised testimony is certainly not the equivalent of in-person testimony"] (internal citations omitted); Wyona Apartments LLC v Ramirez, supra ), there would be virtual trials only on consent.
Respondents simply do not offer a compelling reason to have an in-person trial where both sides are represented by counsel and the court has established processes to address evidentiary concerns. This court, and many others, have held numerous virtual trials and hearings where the parties have been able to introduce visual evidence and documentation. (see Ciccone v One West 64th St., Inc. , 69 Misc 3d at 593 ["[c]urrent technology enables the court and litigants to participate in reliable, real-time videoconferencing with high image quality using readily available computer programs. A hearing conducted virtually by videoconference will allow for cross-examination of witnesses and for both counsel and the court to assess the witnesses’ demeanor and credibility through seeing them up close on-screen."]; C.C. v A.R. , 69 Misc 3d 983, 991, 133 NYS3d 200 [Sup Ct, Kings County 2020] ["plaintiff has not alleged that a virtual proceeding as available to him before this court would not satisfy the elements of testimony under oath, the opportunity for contemporaneous cross-examination, the opportunity for the judge and parties to view the witness's demeanor as he or she testifies and preservation of a record of the witness's testimony"]).
See Virtual Bench Trial Protocols and Procedures, supra.
See e.g. 351-359 E. 163rd St. Tenants Assoc. v East 163 LLC , 70 Misc 3d 1212[A] (multi-day harassment trial); Negron v Foster , NYLJ, March 3, 2021 (multi-day harassment trial); Martinez v Hadlan , 2020 NY Slip Op 51232[U] (virtual judicial inspection); 351-359 E. 163rd St. Tenants Assoc. v East 163 LLC , 2020 NY Slip Op 50877[U] [Order to Correct entered after hearing]; Jeffers v Reliant Park Residences LP , Index No. 13461/2020, Unreported Decision, Oct. 28, 2020 (multi-day harassment and order to correct trial). See also Wyona Apartments LLC v Ramirez , 70 Misc 3d at 596-597.
See Joe Friedman affidavit at 14.
Contrary to their claim, respondents do not have a constitutional right to in-person trial in this civil proceeding. (see Wyona Apartments LLC v Ramirez , 70 Misc 3d at 598 ["a virtual trial, while an imperfect mode to administer a trial, is not an unconstitutional one in this instance."] and Ciccone v One West 64th St., Inc. , supra [rejecting contention that virtual trial deprives party of due process).
Id. at 19.
Furthermore, this court is not persuaded by the argument that because "there are no longer any issues with essential services and this is no longer an urgent matter," the proceeding should only move forward at some undetermined later time. First, petitioner's harassment claim is clearly urgent to her. Secondly, the "urgency" of the matter, or its emergency nature, is not determinative. The broader and more compelling issue is access to the courts; the right to be heard.
Id. at 10.
In any event, respondents’ position that "the tenant has a newly renovated apartment" is belied by the thirteen (13) open violations inside the apartment as of March 24, 2021. Of those, six (6), including two (2) immediately hazardous "Class C" violations, were issued on or about March 22, 2021, weeks after respondents submitted their affidavit claiming all repairs were completed. It is important to note that among petitioner's harassment claim is the allegation that the landlord's repairs are "of poor quality."
Id.
https://hpdonline.hpdnyc.org/HPDonline/select_application.aspx. Last accessed March 24, 2021.
Petition at 9(b).
On November 13, 2020, Chief Administrative Judge Lawrence Marks issued a memorandum ordering "All future bench trials and hearings will be conducted virtually unless the Deputy Chief Administrative Judge permits otherwise." Though limited in-person trials have resumed as of March 22, 2021 and the courts hope to return to some semblance of "normalcy" soon, the clear policy is to limit, whenever possible, litigants from appearing physically in court.
Compare Advisory Notice 24, issued on August 11, 2020 by Hon. Anthony Cannataro, Administrative Judge for the New York City Civil Courts.
See March 22, 2021 Message from Chief Judge Difiore noting that the thousands of matters handled virtually compared to the 53 in-person civil and criminal jury trials scheduled to begin this week.
The court does not discuss petitioner's underlying health concerns as a factor in holding virtual proceedings as it is the New York State court system's policy to limit in-person appearances for everyone, not just those with underlying health concerns.
To the extent that limited numbers of in-person matters will be heard, the court must be focused on "unrepresented litigants, individuals and families who require more time and attention from court staff, and who we know from experience have a difficult time accessing the digital technology necessary to fully participate in virtual proceedings."
See March 22, 2021 Message from Chief Judge Difiore.
To put it another way, "we continue to lean heavily on our virtual courts to carry out the majority of our business, and those courts are busy."
Id.
CONCLUSION
Based on the foregoing, petitioner's motion to have Rory Gledhill, Esq. appear pro-hac-vice is granted. Respondents’ application seeking an in-person trial is denied.
The parties should familiarize themselves with the "Virtual Bench Trial Protocols and Procedures."
This matter is adjourned to April 12, 2021 at 2:30 for a [virtual] pre-trial conference. The parties shall be prepared to discuss all open violations placed by DHPD, including those issued on or about March 22, 2021 [as these "new" violations triggers a reconsideration of petitioner's application that the court issue an immediate order to correct].
Respondents are thus afforded a further opportunity to find space for their witnesses and for presenting their evidence, accommodations they "may" not have as of February 24, 2021. [Friedman affidavit at 36]. (see Ciccone v One West 64th St., Inc. , 69 Misc 3d at 595 [technology used for video-conferencing is straightforward [and] easy to use, and all that is required to participate in a trial by video-conference is a computer and Internet access, which should be readily available to counsel] [internal citations and quotations omitted]).
A copy of this Decision will be emailed to all counsel.
SO ORDERED.