Matter of Schwartz v Clarkstown Cent. School Dist.

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[*1] Matter of Schwartz v Clarkstown Cent. School Dist. 2005 NY Slip Op 50148(U) Decided on February 10, 2005 Supreme Court, Rockland County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 10, 2005
Supreme Court, Rockland County





Richard J. Katz, Esq.

Attorneys for Plaintiff

Woolworth Building

233 Broadway

New York, New York 10279

Albert R. Khafif, Esq.

Friedman, Khafif & Associates

Attorneys for Plaintiff 16 Court Street, Suite 2600

Brooklyn, New York 11241

Brian Henderson, Esq.

Henderson & Brennan

Attorneys for Defendant

222 Mamaroneck Avenue

White Plains, New York 10605

Lawyers' Fund for Client Protection

119 Washington Avenue

Albany, New York 12210

Mary H. Smith, J.

This case concerns a trip and fall over a rope in a high school gym class of the plaintiff, Samantha Schwartz, who was then 17 years old. She has now gone on to attend SUNY Binghamton and, over the years, has been adamant in her refusal to appear in court, except at her convenience, which has resulted in plaintiff's counsels' postponement (at this juncture) of three trial certain dates. The plaintiff's attorneys' misconduct, resulting in this Court's imposition of sanctions, involves her attorneys' deliberate misleading of this Court in their agreement to start the trial with Ms. Schwartz present on February 2, 2005 and their sudden refusal to go to trial on that date when a jury was waiting.

Since this case involves mainly the question of liability and not damages, both counsel have acknowledged that the trial will take not more than three or four days. This Court has stated that, in the Court's opinion, Ms. Schwartz' testimony will take no more than one day. Yet the history of this case, first brought in June 2002, indicates a languishing history of postponements: i.e., . A Note of Issue with Jury Demand is signed by the Honorable George M. Bergerman, J.S.C. on March 18, 2003.

. An October 20, 2003 date certain for trial was adjourned on the consent of both plaintiff and defendant.

. A rescheduled trial date of March 15, 2004 was adjourned at the request of plaintiff's counsel until Ms. Schwartz' spring break, starting April 3, 2005. In response, Justice [*2]Bergerman scheduled the trial date certain to April 5, 2004.

. The April 5, 2004 date was adjourned at the request of defendant to June 1, 2004, and then rescheduled by Justice Bergerman to June 4, 2004 to select a jury.

. On June 3, 2004, the plaintiff's attorney, Richard Katz sent a letter to Justice Bergerman, adjourning the June 4 trial date, stating, "Based on the fact that our client is not available due to school obligations, we again ask the Court's indulgence, as well as the indulgence of the defendant's attorneys, both of whom have been more than accommodating regarding our client's scholastic commitments, in postponing jury selection until August 23, 2004." The specific reason given was that Ms. Schwartz had obtained an internship with the Broome County District Attorney's Office, which (allegedly) would not allow plaintiff a day off to attend court in Rockland. Justice Bergerman told plaintiff's attorney to proceed to trial or the Note of Issue would be struck.

. The Note of Issue was struck by Justice Bergerman. In August 2004, Justice Bergerman, upon plaintiff's request to restore the case to the trial calendar, again gave a trial date certain, January 10, 2005 to accommodate Ms. Schwartz when she would be on Christmas break from school.

On January 10, 2005, this Court, having been transferred from Westchester County to Rockland County by the Chief Administrative Judge to handle the calendar of Justice Bergerman, who had been suffering from a serious illness for the past year, first became acquainted with the case. On that day, plaintiff's trial counsel, Albert Khafif, Esq. demanded an immediate trial without delay. The Court conferenced the case, with a eye towards settlement, but defendant's counsel, Brian Henderson, Esq. had no authorization to settle. Because the Court was presiding over a three-week medical malpractice trial, the Court guaranteed a trial date certain on the next available date, January 31, 2005.

When the Court advised counsel of the date to appear for jury selection and trial (i.e., January 31, 2005), plaintiff's trial counsel Khafif replied that in essence he needed another four months' adjournment, until May 16, 2005 to accommodate Ms. Schwartz' s college schedule. While the defendant did not object to the request for the adjournment, the Court denied the application for the adjournment, given the age of the case, the highly congested trial calendar of this Court due to the extended illness of Justice Bergermen, and pursuant to the Administrative Judge's directive to move the backlog of cases off the Rockland Court's calendar.

Nevertheless, after the calendar call, the Court conferred with its Part Clerk to look at the list of oldest cases so as to determine whether there was a way to rearrange the current trial schedule to accommodate plaintiff's school schedule. When the Court learned that it would be possible to move some of the other older cases up to be tried, and that it would be feasible to try the case during the plaintiff's spring break, the Court had its Part Clerk, Tom Morrissey contact plaintiff's counsel on January 12, 2005 to relay the offer to adjourn the trial to plaintiff's spring break. However, according to Mr. Morrissey, plaintiff's counsel, Richard Katz now demurred, stating that "he would rather keep January 31st" rather than the spring break option that was being offered. (See Transcript of Trial Call dated February 2, 2005 ["Transcript"] at 5). All further conversations between plaintiff's counsel and the Court's Part Clerk indicated plaintiff's readiness for January 31, 2005. Mr. Katz, however, subsequently did request a brief two day adjournment, which was granted.

On February 2, 2005, the case was called for trial. A jury was called and was awaiting counsel. Mr. Khafif, plaintiff's trial counsel, appeared, and, without warning, advised the Court that he would not try the case at this time. His reason: plaintiff yet again was unable to attend [*3]the trial due to her school commitments. Mr. Khafif specified that she was a teaching assistant on Mondays and would not get any credit for this program and could not graduate if she missed a class. (Transcript at 2-3). When the Court indicated that she would most probably testify the next day, February 3, a Thursday, and that her testimony should take no longer than one day, Mr. Khafif stated that if a student misses 3 classes of a course in a semester, pursuant to the University rules, she would be dropped from the course. (See Transcript at 3; see also Plaintiff's excuses June 3, 2004, supra). Mr. Khafif then moved to mark the case off the trial calendar. The Court denied the motion and warned counsel that his client should be advised that her presence was necessary for tomorrow for one day's testimony as the trial would begin. At this point, Mr. Khafif invited the Court to award sanctions against him or his firm, but that it was wrong to punish the plaintiff for any errors he may have committed. (Transcript at 5). In addition, Mr. Khafif requested a brief recess so that he could seek the intervention of the Administrative Judge of the Ninth Judicial District. The Court granted Mr. Khafif a one-half hour break to call the Administrative Judge. However, because he was on vacation, Mr. Khafif could only speak to his support staff and was unable to get a ruling. Nevertheless, Mr. Khafif advised the Court that he would be withdrawing plaintiff's note of issue, and further requested that the Court recuse itself "as, obviously, there's great issues with regards to this case; I'm asking for a continuance to go to the Appellate Division so that I can seek a stay and take an appeal of your Honor's decision to force me to go forward and my client doesn't have to be present in the courtroom; I would like to seek a stay, and I would like to seek the Appellate Division's decision as to whether or not it's potentially an abuse of discretion." (Transcript at 11).

Legal Discussion

Pursuant to the Rules of the Chief Administrator, Part 130, "the court, in its discretion may impose financial sanction upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part ...." (22 NYCRR § 130-1.1(a)). Frivolous conduct is defined as conduct which, inter alia, "is undertaken primarily to delay or prolong the resolution of the litigation ...." (22 NYCRR § 130-1.1(c)(2)). In addition, conduct is frivolous if "it asserts material factual statements that are false ...." (22 NYCRR § 130-1.1(c)(2)). The Rules provide that "the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case." (22 NYCRR § 130-1.1(d)).

The Appellate Division, Second Department, has made clear that it defers to the trial courts regarding sanctions determinations unless there is a clear abuse of discretion. Thus, the Court has held that "Trial Judges should be accorded wide latitude to determine the appropriate sanctions for dilatory and improper attorney conduct." (Sawh v. Bridges, 120 AD2d 74, 78). The are a number of goals at work in connection with the imposition of sanctions. As explained by the Appellate Division, First Department, "[s]anctions are retributive, in that they punish past conduct. They are also goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the bar at large. The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics ...." (Levy v. Carol Management Corp., 260 AD2d 27, 34; see also Park Health Center v. Country Wide Ins. Co., 2 Misc 3d 737).

Courts are advised that "[t]he measure of sanctions imposed should be proportionate to the amount sought in the lawsuit, the culpability of the party's conduct and the prejudice to the adversary." (Park Health, supra, 2 Misc 3d at 740). Furthermore, while the rule provides for a hearing, depending on the circumstances of the case, courts are not necessarily required to hold a formal evidentiary hearing prior to imposing sanctions, particularly where counsel provides no "meaningful response" to the assertions of misconduct. (Jalor Color Graphics, Inc. v. Universal Advertising Systems, Inc., 193 Misc 2d 76, 77, aff'd, 2 AD3d 165). [*4]

It is entirely appropriate to impose sanctions against parties who engage in dilatory trial tactics. (See Ireland v. Geico Corp., 2 AD2d 917 [no abuse of discretion in sanctions imposed on plaintiff who had waited five months to move to strike note of issue]. And courts have found that frivolous conduct of counsel includes the "improper use of the court's time as well as that of counsel ...." (CCS Communication Control, Inc v. Kelly Intern. Forwarding Co., 166 AD2d 173, 175). Thus, sanctions were properly imposed against attorneys "in frivolously proceeding to jury selection while intending not to proceed to trial ...." (Wasson v. Mendick, 253 AD2d 711 [court imposes a sanction on plaintiff's attorneys in the amount of $10,000 (i.e., $2000 to be paid to each of the 5 defense attorneys for their attorneys' fees incurred in connection with jury selection)]; McLoughlin v. Henke, 130 Misc 2d 1091). As the Court in McLoughlin aptly noted, the "payment by an attorney whose conduct frustrates the court in its disposition of cases might perhaps lighten the load of other attorneys who do not indulge in such practices." (McLoughlin, 130 Misc 2d at 1094-1095; see also Matter of Public Administrator of the County of New York v. Cohen, 221 AD2d 297, 299 [imposition of $1500 sanction against plaintiff's counsel was appropriate for attorney's resort to "frivolous tactics in an effort to discredit the present [replacement] Justice and drive him from the case"]).

The Court finds plaintiff's counsels' conduct to be frivolous and warranting of sanctions. Mr. Katz' representation to the Court that they were ready to proceed to trial on February 2, 2005 and that they did not wish an adjournment of the trial to a time during plaintiff's spring break was a misrepresentation which resulted in a waste of judicial resources. Because the Court blocked out this week for the trial, there were not other trials ready to proceed in this action's stead. Thus, the Court had no other case to try and instead lay dormant for the three days that it would have otherwise been occupied with this trial. Furthermore, Mr. Khafif had ample opportunity at the ½ hour break to contact Mr. Katz and advise the court if there had been some mis-communication between Mr. Katz and Mr. Morrissey. Instead, Mr. Khafif went on the attack seeking the intervention of another tribunal so that his client would not be prejudiced by having the trial proceed in her absence. For Mr. Katz to have advised the Court that plaintiff was ready to proceed when he knew or should have known that she had no intention of missing school for the trial is viewed by this Court as counsel's attempt at retribution (i.e., a way of getting back at the Court for what he believed was an unjustified ruling at the beginning of January which denied the request to adjourn the trial to May). Furthermore, Mr. Khafif could have called the Court in advance of the scheduled trial date and advised the court that Ms. Schwartz was unwilling to attend the trial for fear of consequences at her school. During the hearing held on February 2, 2005, Mr. Khafif had ample opportunity to explain his conduct (as well as the conduct of Mr. Katz), but it was not forthcoming. As a result, on February 2, 2005, the Court decided that it would be issuing an order imposing a sanction of $1000 against plaintiff's counsel.

This case is indistinguishable from the case of McLoughlin v. Henke, 130 Misc 2d 1091. In that case, plaintiff's counsel had announced their readiness to proceed to trial at the Trial Calendar call on January 21, 1986 and were ordered by the Court to pick a jury on January 27, 1986. The jury selection took one day and at the end of the day, counsel advised the court that they were ready to proceed to trial. However, the next morning, when the trial was supposed to have begun, plaintiff's counsel requested that the jury be disbanded and the trial be adjourned for a number of weeks due to plaintiff's inability to attend the trial. In that case, unlike this one, unbeknownst to trial counsel, plaintiff had been hospitalized from a car accident. Recognizing that the fault was not plaintiff's in that instance, the Court granted the adjournment on the condition that the plaintiff pay $250 to opposing counsel and $500 to the Client's Security Fund of the State of New York.

The McLoughlin court explained the difference in the current IAS practice as compared to prior practice insofar as under prior practice, the only person inconvenienced in such a situation would have been the opposing counsel since "[t]his case would have been one of [*5]several wherein juries were being selected, and any trial parts coming open would have been assigned one of the other cases." (McLoughlin, supra, 130 Misc 2d at 1093). However, the court went onto explain that with the IAS system, the inconvenience transcends simply the inconvenience to opposing counsel: "[t]his case has been thoroughly conferenced and found not be amenable to settlement. It has been set down for jury selection and trial in the expectation that it would occupy my part for a full week. In reliance upon counsel's representations that this case is ready for trial, no other cases had been scheduled for the next few days. A series of telephone calls revealed that no other cases on any Trial Calendar could be advanced from the scheduled dates on such short notice. Thus, counsel's inability to proceed left my part without a case on trial for three consecutive days. The essence of the individual assignments system is the continuous supervision of each case by a single Judge (22 NYCRR 202.3[a]). In order to manage his docket, each Judge is authorized to establish and control appropriate Trial Calendars (22 NYCRR 202.22). Judicial efficiency demands that, insofar as possible, each Judge should manage these calendars so as to have a case on trial at all times. Only in this way can maximal use be made of judicial resources, and the entire docket proceed as expeditiously as possible. No court can schedule cases for trial properly if counsel for the parties does not convey accurate information about the status of his case."

(McLoughlin, 130 Misc 2d at 1093). Thus, in McLoughlin, because "the court was subjected to unnecessary, frustrating and wholly unavoidable delay in the movement of its calendar" a sanction directly payable to the court was proper since the conduct involved "an impairment of the court's 'efficient disposition of [its] business.'" (Id. at 1093-1094; quoting Gabrelian v. Gabrelian, 108 AD2d 445, 454).

Here, unlike McLoughlin, counsel was aware that plaintiff had no intention of taking off from college to attend the trial. As such, it was incumbent upon them to advise the Court, especially given that the Court had reached out to them to try to accommodate plaintiff's college schedule. Instead, counsel misrepresented their ability to proceed and interfered with the proper scheduling of the Court's other trials. Indeed, given counsel's request that the Court recuse itself, the Court wonders whether plaintiff's counsel engaged in this conduct in order to have this case re-assigned to a judge they viewed to be more favorable.

With regard to the amount of sanction to be imposed, because the Court is not awarding attorneys' fees or costs to reimburse defense counsel, and instead, is imposing sanctions to deter this attorney as well as future attorneys from wasting a week of the Court's time, it is hard to employ an equation that insures that the sanction amount imposed is proportionate to the amount sought in the lawsuit, the culpability of the party's conduct and the prejudice to the adversary. As one court noted, "there is no mathematical formula with which to compute the amount. All a court can do in such a case is to estimate what amount will sting sufficiently to communicate its demand for improved professional conduct without imposing excessive hardship." (Candolfi v. New York City Transit Authority, 156 Misc 2d 964, 970). Here, considering the amount of sanctions imposed in other cases in which a waste of judicial resources was at issue, the Court finds $1000 to be appropriate sanction given the circumstances present this case. The Court further orders that such amount be paid to the Lawyers' Fund for Client Protection of the State of New York pursuant to 22 NYCRR § 130-1.3.

Based upon the foregoing; it is

ORDERED, that plaintiff's counsel are to pay $1,000 ($500 assessed against the law firm of Richard J. Katz, Esq. and $500 assessed against the law firm of Friedman, Khafif & Associates) to the Lawyers' Fund for Client Protection of the State of New York within 30 days of this order, and counsel shall file affidavits with the Court within that time to the effect that [*6]the fine was paid out of the firms' own funds and further that the payment of these sanctions will not be reimbursed by plaintiff.

The foregoing constitutes the Decision, Judgment and Order of the Court.

Dated: New City, New York

February 10, 2005