By Emma Whitford

Law360 (March 26, 2021, 1:30 PM EDT ) A Kings County Supreme Court administrative judge dismissed a case Thursday on the grounds that the plaintiff's attorney refused to wear a face mask during jury selection, after the lawyer appeared in court with a face shield and said his cloth mask constricted his breathing.

Judge Lawrence Knipel issued a one-page handwritten order in the 2017 case, which is seeking damages for injury in a car crash, dismissing the matter "upon plaintiff counsel's refusal to proceed with jury selection while wearing a face mask."

"There is no question that the number one safety measure seems to be wearing masks," Judge Knipel said Thursday, according to a court transcript. "Our court protocols from Buffalo to Riverhead right across the state [call for] masks. Masks must be worn in all courtrooms."

Plaintiff attorney Howard Greenwald of Chopra & Nocerino LLP told the court he had begun Wednesday's jury selection proceedings with a face shield, according to Thursday's court transcript.

"I was told that I could not pick a jury unless I had the mask on," Greenwald continued. "I complied with that. 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."

Talking to the jurors across the courtroom the previous day required Greenwald to raise his voice, he said, adding, "I became lightheaded. I had to sit down after two minutes."

Greenwald said he switched back to a face shield after lunch Wednesday, and a court officer told him he would have to put on a cloth mask or leave the building. "I don't contest the rule," Greenwald told the court. "I just am not physically able to comply with the rule to do my job as a lawyer."

He requested adjourning the case until June, "where hopefully I can come in this building and do what I have done for 45 years, which is try the case."

Evan B. Feuerstein of Kelly Rode & Kelly LLP, counsel for the defense, argued Thursday that the case should proceed, though he empathized with Greenwald.

"I specifically practiced projecting and speaking with a mask on in my office in advance knowing that I would have to wear it," Feuerstein said. "Obviously the new normal, which is the new COVID-19 pandemic, masks are required everywhere."

Judge Knipel was firm on Thursday, noting that courts have been "greatly restricted ... for the better part of a year, or over a year even," and that while he could offer a smaller courtroom so Greenwald would not have to raise his voice during jury selection, "if you refuse to go forward I am going to have no option but to dismiss the case."

Greenwald maintained that "physically I am unable to proceed," and that he was sweating: "I am dripping here, your honor."

Knipel replied, "OK, it hurts me to do it, but case dismissed."

Reached for comment, Office of Court Administration spokesperson Lucian Chalfen said civil and criminal trials resumed in New York Monday.

"This case would have been one of the first in Kings County Supreme Court, Civil Term," Chalfen added. "Citywide there were 26 jury trials scheduled, 19 civil and 7 criminal."

"The plaintiff's attorney had an issue with our mandatory requirement that everyone must wear a mask while inside a court facility," Chalfen said. "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. We are serious regarding the health and safety of all our judges, nonjudicial 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."

Filed in August 2017, the underlying case seeks damages for a car crash that May, in which defendant Mayer Vaknin allegedly struck and injured plaintiff Sharmaine Gedell as she was driving on Flatlands Avenue near Harden Street in the Flatlands neighborhood of Brooklyn.

Sameer Chopra of Chopra & Nocerino LLP called Thursday's decision "the most disgusting thing I've ever seen in my life" and "an abuse of power" in a phone call with Law360 Pulse, noting that Greenwald is 68 years old.

"The judge mocked him, meanwhile he's sweating profusely. If you felt his face mask when he got back, it was drenched," Chopra added. "It's not only abuse to Mr. Greenwald, but the bigger issue I even have with it, is what the hell did Sharmaine Gedell do to deserve her case to be dismissed?" 

"I don't believe it's something we can let go based on the magnitude of what I believe to be an intentional order to hurt Mr. Greenwald as well as my firm because the way he's a representative of us, right? When it seems like we're anti-mask and we were unwilling to participate in the trial, it's a complete fabrication of the truth," Chopra said.  

Feuerstein declined to comment to Law360 Pulse on Friday.

Sharmaine Gedell is represented by Sameer Chopra and Howard Greenwald of Chopra & Nocerino LLP.

Vaknin is represented by Evan B. Feuerstein of Kelly Rode & Kelly LLP.

The case is Sharmaine Gedell v. Mayer Vaknin, case number 516775/2017, in Kings County Supreme Court.

--Editing by Marygrace Murphy.

Correction: An earlier version of this story misspelled the name of Feuerstein's firm, and misstated the day that trials restarted in New York. 

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