Howard Greenwald, trial attorney at Chopra & Nocerino. Photo courtesy of Chopra & Nocerino

A top judge in Brooklyn on Thursday dismissed what would have been one of the city's first in-person jury trials of 2021, citing one attorney's "refusal to proceed with jury selection while wearing a face mask."

Howard Greenwald, a trial attorney with Chopra & Nocerino, told Justice Lawrence Knipel, administrative judge for civil matters in Kings County, that he had begun to participate in proceedings wearing a face shield but was told he had to wear a mask, according to a transcript of the proceedings.

"I complied with that," Greenwald said. "I attempted to do this for a couple of minutes. I had particular difficulty. Just talking to Your Honor right now with the mask, my nose fills. I can't breathe."

Jury selection was set to take place in one of the largest rooms in the courthouse for social-distancing reasons, and Greenwald, 68, said he was having trouble projecting his voice to jurors in the back of the room.

"I became light-headed," he said. "I had to sit down after two minutes."

Greenwald moved to adjourn the case until June, emphasizing that he was not reticent to move forward with the case but was "not physically capable of doing it under these circumstances."

Sameer Chopra of Chopra & Nocerino, who hired Greenwald to handle the case, said he has been able to wear a mask in other contexts, but because of the physical demands of speaking animatedly in court while walking around and addressing jurors, he needed to use the face shield.

"It had nothing to do with him being unwilling to wear a mask," Chopra said

Knipel, who was himself hospitalized with COVID-19 early in the pandemic, offered Greenwald the opportunity to proceed in a smaller courtroom, acknowledging "it is hard to project" voices in the large space, but he said statewide protocols require people to wear masks in court and he would not adjourn the trial over a mask issue.

Greenwald, who said he had surgery March 1, said he would not be physically able to move ahead.

After a back-and-forth in which Knipel told Greenwald he looked "fine" and Greenwald said he was dripping with sweat, Knipel dismissed the case, according to the transcript.

"I cannot do it and if you are going to force me to say I can't proceed and you give me a dismissal, then I am going to have to accept it, Your Honor, because physically I am unable to proceed, he said according to the transcript.

Chopra was critical of the move, noting that the client in the case is a nurse who has worked on the front lines of the pandemic.

"I think somebody should really look at what [the judge] did, how he disregarded human life and the potential health risks involved, how he completely ignored the plea for help and unjustly caused prejudice to a frontline worker who's been nothing but heroic during this pandemic," Chopra said.

Lucian Chalfen, a spokesman for the Office of Court Administration, said the court system is serious about health and safety.

"He was told repeatedly, over the period of two days, that he must comply, and was given options by the Administrative Judge as to how he or his firm could continue to represent his client," Chalfen said. "We are serious regarding the health and safety of all our judges, non-judicial staff, court officers and litigants. In that vein, as the attorney was unable to comply, the judge had no other alternative than to dismiss the action.

Jane Wester

Jane Wester

Jane Wester is a litigation reporter for the New York Law Journal. Email her at [email protected] or find her on Twitter @janewester.

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