While New York State may slowly be “reopening,” New York courts continue to operate almost exclusively on a virtual basis. As a result, the Covid-19 Pandemic continues to impact the courts decisions in matrimonial cases. One example of Covid-19’s continued impact is highlighted in a recent case out of New York Supreme Court entitled Chu v. Lin.

In Chu v. Lin, Justice Matthew Cooper opened his decision with recognition to New York State courts commitment and ability to continue operations on a virtual platform. However, he further highlighted the difficulties that come with operating on such a platform, especially in high conflict matrimonial cases such as Chu v. Lin, where the conflict between the parties was only further incensed by the Covid-19 pandemic.

The plaintiff-father filed two separate applications due to the defendant-mother’s failure to comply with various court orders. The first application was brought seeking to compel the defendant-mother to comply with the parental access schedule that the court had put in place as well as compel the defendant-mother to vacate the former marital residence in order to effectuate the closing of the home in accordance with a previous so-ordered stipulation. The second application brought by the plaintiff-father sought to hold the defendant-mother in contempt for her failure to abide by the courts previous orders.

The court, through the virtual platform and without the need to hold a virtual evidentiary hearing, was able to resolve the issue of parental access during the Covid-19 pandemic in order to restore the plaintiff-father’s access to his children. However, the court found its ability to enforce the parties’ so-ordered stipulation and force the defendant-mother to vacate the martial residence in the middle of a pandemic to be a more challenging decision.

The court noted that the parties had previously entered into the so-ordered stipulation whereby they agreed to put the marital residence, their only marital asset, on the market as the parties lacked the financial means to continue to pay the mortgage and the carrying charges. In accordance with the so-ordered stipulation, the parties placed the marital residence on the market and later entered into a contract of sale with a third party purchaser, which required the home be vacant at the time of the closing. Despite the contract of sale and the various postponements of the closing date, the defendant-mother refused to vacate the marital residence, which was placing the closing in jeopardy and both the parties at risk to be sued for damages from the third-party purchasers.

While the court acknowledged that the defendant had in fact violated a lawful court order and that her actions had prejudiced the rights of plaintiff, Justice Cooper stated, “it strikes me as highly problematic, and perhaps even impermissible, to conduct a virtual hearing in a proceeding that could result in defendant being sentenced to jail.” The court identified an array of issues in holding a virtual contempt hearing including, but not limited to, the impossibility of the defendant’s need for a Mandarin interpreter to take place over Skype for Business, the inability of attorneys and clients to converse privately and the courts inability to control the virtual “courtroom” in the same manner he would if this proceeding was able to be held in person. The court noted that a contempt proceeding “is far too serious a proceeding to operate under these less than optimum conditions.”

In addition to finding a virtual contempt hearing problematic, the court also stated that the potential of the defendant being sent to jail as a result of a contempt finding was problematic. The plaintiff had requested that the defendant be sent to jail until she abide by the court’s order and vacate the former marital residence. However, the court stated “it would be unthinkable to incarcerate anybody for an offense like this during the COVID-19 outbreak, with the serious threat of infection rendered even more acute by the inevitable conditions of incarceration.” The court further highlighted the effort being made to decrease the population of the jails not increase the population.

The court further denied the plaintiff’s request to compel the defendant to vacate the former marital residence. The court noted that it was reluctant to force defendant out of the former marital residence as the defendant claimed that she and the parties’ children would end up in the streets in the middle of a pandemic. Regardless of whether the court found the defendant’s claims to be truthful, the court, pursuant to Executive order 202.8, found that it was unable to evict the defendant from the premises.

Although the Covid-19 pandemic influenced the court’s finding that a contempt proceeding was impossible and that the defendant could not be forced out of the former marital residence, the court found that the defendant could be held financially accountable for her behavior. As such, court held that the plaintiff’s share of the proceeds would be increased and the defendant’s share would be decreased in accordance with whatever loss in the selling price was attributable to defendant preventing the closing from taking place on April 20, 2020. The court further found that defendant would be solely liable for all damages sought by the purchaser or any other aggrieved third party due to her refusal to vacate the residence.

In closing, the court stated, “[w]hatever the virtues of virtual justice, I remain convinced that a case such as this is better suited for disposition in an old-fashioned, brick and mortar courthouse.”

Jaspan Schlesinger is committed to helping our clients make their way through this very trying time. Our offices are monitoring the courthouse operations and are available via email, phone, or video-conferencing to answer your questions and concerns. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance, please contact Hanna E. Kirkpatrick at hkirkpatrick@jaspanllp.com or (516) 393-8259 or Samantha M. Guido at sguido@jaspanllp.com or (516) 393-8250.