BROOKLYN JUDGE REJECTS A PARTY’S COVID-19 EXCUSE SEEKING TO POSTPONE VIRTUAL HEARING FOR CONTEMPT

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By avi cohen

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On April 27, 2020, I identified and discussed the technological challenges facing the New York State courts and ttorneys in COVID-19. NY Courts’ Legal Failures During COVID-19. It has been six months since the New York State Supreme Court expanded electronic filings to include matrimonial and some estate matters. Reopening of NYS Courts. In a pleasant surprise, the legal community did not crumble, and most judges and attorneys are adapting remarkably to the new “digital” era.

Naturally, changes within any infrastructure is an invitation for people to challenge the propriety of newly implemented rules and protocols. This was precisely what happened recently in a Kings County Supreme Court divorce action. C.C. v A.R., 2020 NY Slip Op 20245. The Honorable Jeffrey A. Sunshine was the presiding judge in this case, in which the wife-defendant moved for civil and criminal contempt against her husband before the start of the coronavirus in March 2020. Since that time, the courts had closed and cases were administratively adjourned. But alas, the show must go on! The plaintiff-husband was charged with contempt for allegations that he “engaged in spoliation of evidence and violation of automatic orders related to the installation of and attempted deletion of iPhone spyware.” Id. at *1.

When the trial courts reopened and the case was subsequently scheduled for a virtual hearing, 1 the Plaintiff’s attorney argued the hearing had to be adjourned because she needed to review a notebook admitted as evidence prior to COVID-19, which has been in the physical custody of the court all along. In her affirmation, Plaintiff’s counsel exclaimed she was “willing to review that journal in the courthouse if I am granted permission to enter the courthouse in order to do so, however only after being assured that my health will be safeguarded.” (emphasis in original).

In his decision, Judge Sunshine observed that “these are unprecedented times: fortunately, global pandemics have not been commonly faced in New York.” Id. The court further derided Plaintiff’s attorney by reminding all that “it is not within the purview of a litigant or counsel to assess whether the protocols established are adequate.” Id. Logic dictates that a person facing incarceration has every interest in seeking to delay its resolution. Comparatively, if a person were afforded the option to subjectively assess whether or not a courthouse was safe, the result would be catastrophic. It would welcome any litigant to postpone indefinitely “any proceeding in which he or she did not want to appear. Certainly, such an outcome will not stand.” Id.

The Supreme Court, thus, ordered the parties to continue the contempt hearing virtually. The court reasoned that inasmuch as Plaintiff sought to prolong the litigation and resisted “a final determination on these issues, defendant [was] also entitled to a conclusion of this matter.” Id. In a final rebuke to Plaintiff, the Court cautioned that it “will not abide [any party’s] attempt to use a global pandemic as a sword and a shield” to further delay the resolution of legal proceedings. Id. (emphasis added).

The lesson learned is that a New York State trial court is authorized to establish and implement appropriate measures for in-person court proceedings as it deems fit. There is no prejudice to a party or attorney in doing so. As succinctly stated by Judge Sunshine, “a virtual proceeding is not a perfect scenario; however, there are no perfect trials whether in-person or virtually.” Id. Accordingly, we must all be amenable to the changing times.

Avi has been selected to super lawyers’ “Rising Stars,” a prestigious recognition awarded to only 2.5% of attorneys. Avi maintains a 10.0 rating on Avvo, which is considered by Avvo’s own ranking standards as “Superb.”

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