New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2001-016-023, Claim No. 97813, Motion No. M-63004


Order dismissing claim was vacated and costs were awarded to defendant pursuant to §130-2.1 of the Rules of the Chief Administrator of the Courts.

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):

Alan C. Marin
Claimant's attorney:
Jonah Grossman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Glenn C. King, AAG
Third-party defendant's attorney:

Signature date:
April 10, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In the underlying claim, it is alleged that an automobile owned, operated and maintained by the State of New York negligently struck claimant, a pedestrian. The claim was dismissed in an order filed January 16, 2001 following claimant's failure to appear at the December 5, 2000 trial date. This is claimant's motion for an order vacating the dismissal. For its part, defendant seeks the travel costs associated with the appearance of counsel and a witness at such trial date. A conference in this case had been scheduled for July 11, 2000. Claimant's counsel, Jonah Grossman, Esq., failed to appear and did not telephone Chambers until later in the day to say that he got "stuck" in another court. The conference was subsequently held at which time the parties agreed on October 4, 2000 for a trial date. On August 21, 2000, defendant wrote to request an adjournment of the October date on the grounds that defendant's "out of state witness, Iris Nemhauser" had had a death in the family which caused her to use vacation time so that she would not have sufficient time in October to permit her to attend the trial. The adjournment was granted and the trial was rescheduled for December 5, 2000.

On the afternoon of December 4, 2000, a paralegal from Mr. Grossman's office called Chambers to say that Mr. Grossman had a scheduling conflict, i.e., he was engaged at another trial, and would not be able to appear at the trial of the Perez claim the next morning. The paralegal was told that Mr. Grossman would have to submit an affidavit that complied with the Uniform Rules for the Engagement of Counsel, 22 NYCRR §125.1. At 4:45 p.m. that afternoon, the Court received by facsimile Mr. Grossman's affirmation of actual engagement. In it, Mr. Grossman stated that he was engaged in a trial in Supreme Court, Queens County, that a jury had been picked, that five attorneys were involved in the case and that it was expected to last for two weeks.

Section 125.1(g) of the Rules of the Chief Administrator provides in relevant part that "where a date for trial of an action or proceeding is fixed at least two months in advance thereof

. . . the attorneys previously designated as trial counsel must appear for trial on that date. If any of such attorneys is actually engaged on trial elsewhere, he or she must produce substitute trial counsel. If neither trial counsel nor substitute trial counsel is ready to try the case on the scheduled date," the court may take appropriate steps as permitted by law. In the instant case, since the December 5, 2000 trial date was scheduled more than two months in advance, claimant was not entitled to an adjournment. Accordingly, when claimant failed to appear at the trial the following morning, the claim was dismissed. (See §19 of the Court of Claims Act.)

Claimant makes this motion to vacate the dismissal on the grounds that counsel "incorrectly believed that the court would accept my affirmation of actual engagement. . . . If I had for an instant thought that the outcome would have been a dismissal I would not have bothered with the affirmation of actual engagement but would have spent the afternoon and evening of December 4, 2000 retaining outside counsel . . ." Claimant characterizes the situation as a "miscommunication." As set forth above, §125.1(g) of the Rules of the Chief Administrator is very clear that claimant was not entitled to an adjournment under the circumstances in this case. However, in view of the strong public policy that cases be decided on their merits[1] and since to do otherwise would penalize claimant, I find that such dismissal should be vacated. Defendant, however, should not in any event (whether the claim is re-opened or not) be required to pay for Mr. Grossman's mistake.

As set forth above, defendant seeks travel costs incurred in connection with the December 5th trial date. In particular, defendant has submitted receipts covering the expenses of witness Iris Nemhauser, who traveled from Rochester, Minnesota and the Assistant Attorney General, who traveled from Albany.

Section 130-2.2 of the Rules of the Chief Administrator provides that a Court may award costs where it finds that an attorney's failure to appear at a scheduled court appearance is without good cause. In determining whether the failure to appear was without good cause and in determining the costs, the following must be considered:
(1) ab the explanation, if any, offered by the attorney for his or her nonappearance;

(2) ab the adequacy of the notice to the attorney of the time and date of the scheduled appearance;

(3) ab whether the attorney notified the court and opposing counsel in advance that he or she would be unable to appear;

(4) ab whether substitute counsel appeared in court at the time previously scheduled to proffer an explanation of the attorney's nonappearance and whether such substitute counsel was prepared to go forward with the case;

(5) ab 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) ab whether the attorney on prior occasions in the same action or proceeding failed to appear at a scheduled court action or proceeding;

(7) ab whether financial sanctions or costs have been imposed upon the attorney pursuant to this section in some other action or proceeding; and

(8) ab the extent and nature of the harm caused by the attorney's failure to appear.

With regard to the first, second and fifth factors, as set forth above, Mr. Grossman has stated that there was a miscommunication and he mistakenly believed that his affirmation of engagement would be sufficient to obtain an adjournment. However, it is clear that pursuant to §125 that claimant was not entitled to an adjournment as the trial was scheduled more than two months in advance. With regard to the fourth factor, substitute counsel did not appear on the scheduled trial date. With regard to the sixth factor, as set forth above, Mr. Grossman did fail to appear for a conference scheduled on July 11, 2000. As to the seventh factor, there has been no suggestion that costs or sanctions were previously imposed against Mr. Grossman in connection with any other actions. Finally, with regard to the third and eighth factors, as set forth above, Mr. Grossman did not send his affirmation of actual engagement to the Court until 4:45 p.m. the day before the scheduled trial date. There is no indication in the papers as to when it was sent to defendant. In any event, it appears undisputed that Mr. Grossman's notification came too late for Mr. King and Ms. Nemhauser to change their travel plans; the documentation submitted by defendant indicates that Mr. King left for New York at 11:30 a.m. the day before the trial and Ms. Nemhauser left Minneapolis at 6:20 p.m.[2] In addition, it is unclear why Mr. Grossman waited until the afternoon of December 4, 2000 to notify anyone of his conflict. As set forth in his affirmation on this motion, he was first sent to select a jury in Supreme Court, Queens County on November 30, 2000 and on December 1st was advised to return on the morning of December 4th to learn whether the case was actually going forward. It is thus clear that Mr. Grossman could have advised the Court and defendant of the potential for a conflict as early as November 30th or December 1st.

In sum, I find that for the purposes of §130-2.1 of the Rules of the Chief Administrator, Mr. Grossman's failure to appear on the scheduled trial date of December 5, 2000 was without good cause and that he should be required to reimburse defendant for the travel costs of Mr. King and Ms. Nemhauser. See, e.g., Ryback v State of New York, Claim No. 85361, Motion No. M-54833, unreported order filed August 6, 1997 (Lane, J.). Defendant has submitted copies of travel receipts totalling $1,929.50 for Mr. King and Ms. Nemhauser. These costs have not been disputed by claimant.

Accordingly, having reviewed the parties' submissions,[3] IT IS ORDERED that motion no. M-63004 is granted to the extent that within sixty (60) days of the filing of this Decision and Order, Jonah Grossman, Esq. shall deposit with the Clerk of this Court a certified check or bank draft for the sum of One-Thousand Nine-Hundred Twenty-Nine and 50/100 dollars ($1,929.50) payable to the New York State Department of Law for transmittal to said entity. Upon deposit of such check or bank draft, the Clerk of the Court is directed to re-open claim no. 97813.

April 10, 2001
New York, New York

Judge of the Court of Claims

  1. [1]See, e.g., Acosta v State of New York, 270 AD2d 164, 704 NYS2d 594 (1st Dept 2000).
  2. [2]Mr. Grossman states that he had no reason to believe that defendant was undertaking a large expense to bring Ms. Nemhauser to testify. As set forth above, defendant's letter seeking an adjournment of the trial because of a death in Ms. Nemhauser's family specifically identified her as an "out of state witness."
  3. [3]Along with the pleadings, the following were reviewed: claimant's notice of motion with affirmation in support, the January 4, 2001 affidavit of Elba Perez and undesignated exhibits; defendant's affirmation in opposition with Exhibits A and B; and claimant's reply affirmation with undesignated exhibits.