New York State Court of Claims

New York State Court of Claims

MABRY v. STATE OF NEW YORK, #2000-018-032, Claim No. 95881


Sanction hearing to determine if sanctions should be imposed against claimant's counsel who failed to appear for the trial of the action. No sanctions were imposed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 10, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


By Order of this Court filed May 10, 2000, a hearing was held on July 26, 2000, to determine if sanctions should be imposed on claimant's counsel, Andrew F. Plasse, Esquire, for his failure to appear for the trial of
Eric Mabry v State of New York, (Claim No. 95881) which was scheduled for 9:30 a.m., on May 4, 2000, in Syracuse, New York. The trial was ordered, day certain, by the Honorable Philip J. Patti on April 2, 1999, after hearing from both counsel.
Pursuant to the Rules of the Chief Administrator of the Courts, Part 130-2.1 sanctions may be imposed if it is determined that the attorney's failure to appear is without good cause. In determining whether an attorney's non-appearance was without good cause, the Court is to consider all the attendant circumstances, including but not limited to:
1. The explanation, if any, offered by the attorney for his or her non-appearance;
2. The adequacy of the notice to the attorney of the time and date of the scheduled appearance;

3. Whether the attorney notified the court and opposing counsel in advance that he or she would be unable to appear;

4. Whether substitute counsel appeared in court at the time previously scheduled to proffer an explanation of the attorney's non-appearance and whether such substitute counsel was prepared to go forward with the case;

5. Whether an affidavit or affirmation of actual engagement was filed in the manner prescribed in Part 125 of the Uniform Rules for the Trial Courts of the Unified Court System;

6. Whether the attorney on prior occasions in the same action or proceeding failed to appear at a scheduled court action or proceeding;

7. Whether financial sanctions or costs have been imposed upon the attorney pursuant to this section in some other action or proceeding; and

8. The extent and nature of the harm caused by the attorney's failure to appear. (22 NYCRR §130-2.1.)
Given the nature and circumstances of the case, the Court heard from counsel in the manner of motion argument. (
Cf., Principe v Assay Partners, 154 Misc 2d 702, 712.)
Assistant Attorney General Timothy P. Mulvey, appearing for the State, informed the Court that in December 1999, the same attorney representing the same claimant in another case, Claim No. 94624, called the Court less than 24 hours before the scheduled trial to notify the Court that the claim was withdrawn. To avoid the inconvenience Mr. Mulvey experienced on that occasion, he called Mr. Plasse a week to ten days before May 4, 2000, and left a message inquiring as to Mr. Mabry's intentions to proceed with this trial before this Court. In response, Mr. Plasse left a message for Mr. Mulvey that the trial would go forward. Mr. Mulvey proceeded to subpoena witnesses from Watertown Correctional Facility.

On the day before trial, May 3, 2000, Mr. Mulvey indicated he was out of his office on other business but received a message from Mr. Plasse at 4:30 or 5:00 p.m., advising that Mr. Mabry no longer wished to proceed to trial and he would not be appearing the next day. Mr. Mulvey contacted the correctional facility but by that time, the State's witnesses had left the facility for the day. Mr. Mulvey made no further attempt to contact those witnesses, instead, he waited for them to appear at the courthouse for trial the next morning before informing them that the case would not proceed.

Mr. Plasse explained that he has represented Mr. Mabry in a number of matters for many years, and that Mr. Mabry was incarcerated until 1999. After his release, Mr. Plasse was provided with telephone numbers where Mr. Mabry could be reached. Apparently Mr. Mabry resided temporarily with various people. It should be noted that Mr. Plasse's office is in New York City, and his client is living in the same area.

On April 10, 2000, Mr. Plasse spoke with Mr. Mulvey about the late withdrawal of the earlier claim and the possibility of Mr. Mabry making a last minute decision to withdraw the claim scheduled for May 4, 2000. Mr. Plasse indicated that the reason for the earlier discontinuance was due to facts of that particular case and should have no bearing on this hearing.

As an explanation for his non-appearance, Mr. Plasse expressed the difficulty he had in reaching his client as the trial date approached. Mr. Mabry had failed to keep an earlier appointment and did not appear at Mr. Plasse's office until 8:30 p.m., the evening before the trial. Mr. Plasse had Mr. Mabry sign a discontinuance of the action at that time. Mr. Plasse maintained that he was reluctant, based upon past experience, to represent to the Court that the trial would not proceed until the client signed the discontinuance. Mr. Plasse's concern did not prevent him from advising the attorney general's office at 4:30 or 5:00 p.m., that Mr. Mabry would not be proceeding with the trial; a fact which was not shared with the Court until 9:15 a.m., the following morning. Furthermore, Mr. Plasse could have alerted the Court days earlier regarding the difficulty he was having reaching his client and to seek some guidance.

The Court finds that Mr. Plasse's explanation for his non-appearance is weak, given the history with his client. The Court, however, is aware of the realities of private practice, in particular a sole-practitioner's office. It is understandable that an attorney would want a client who has proven to be elusive to execute the appropriate documentation prior to representing to the Court that the client intended to withdraw the action. Still, given the fact that Mr. Mabry was in New York City, the likelihood of him having a change of heart between late Monday afternoon and 9:30 a.m. Tuesday morning, and somehow manage to travel from New York City to Syracuse is highly unlikely.

The Court also finds that the notification provided to opposing counsel at 4:30 p.m. on Monday afternoon, and to the Court at 9:15 a.m., on Tuesday morning was only minimally better than no notice at all. As a result, Mr. Plasse's untimely notice of his client's intentions caused a waste of resources and inconvenience to opposing counsel and the Court. The attorney general's office had to prepare for a trial which would not take place, and the Court reserved time to hear this case when another matter could have been scheduled.

Yet, some of the harm caused to the witnesses could have been avoided. The Court is disturbed that Mr. Mulvey made little or no effort to reach his witnesses to avoid them having to travel approximately 80 miles to the Court and rearrange their schedules around the court appearance. Mr. Mulvey articulated his concern regarding the inconvenience imposed upon the correctional facility and the witnesses as a result of Mr. Plasse's failure to appear; however, it seems to the Court that Mr. Mulvey's less than diligent effort in attempting to contact the witnesses on the evening of May 3, 2000, contributed to the harm caused by Mr. Plasse's non-appearance.

Accordingly, based upon a consideration of all the attendant circumstances and section 130-2.1(b) factors the Court would advise Mr. Plasse to avoid such conduct in the future; however, will not impose sanctions as result of Mr. Plasse's failure to appear on May 4, 2000.

August 10, 2000
Syracuse, New York

Judge of the Court of Claims