New York State Court of Claims

New York State Court of Claims

ROBINSON v. THE STATE OF NEW YORK, #2003-015-363, Claim No. 95245, Motion No. M-67285


During pendency of claim court imposed sanction against defense counsel pursuant to 22 NYCRR Part 130. Attorney General never paid the sanction and now moves for an order vacating the order which imposed it or for an order directing entry of a judgment. Court denied motion to vacate but directed entry of the judgment.

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:
DiJoseph & Portegello, P.C.1 1.Claimant's attorneys of record are Parker & Waichman by Zweibel, Brody, Gold & Fairbanks.By: Arnold E. DiJoseph, III, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Deon J. Nossel, EsquireSenior Assistant Solicitor General
Third-party defendant’s attorney:

Signature date:
October 21, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant and Assistant Attorney General June Duffy, a non-party to this underlying action, for an order pursuant to CPLR 2221 and 5015 vacating the Court's prior order dated September 11, 2000 (filed September 20, 2000) which imposed sanctions against Ms. Duffy is denied. Movants' request for alternative relief directing the Clerk of the Court to enter judgment against Ms. Duffy pursuant to the September 11, 2000 decision and order is granted. During the pendency of Cherise Robinson's claim seeking to recover damages for personal injuries resulting from an attack upon her by a fellow inmate, claimant's attorney moved in limine for an order pursuant to CPLR 3126 striking the defendant's answer for spoilation of evidence and imposing sanctions against defense counsel for frivolous conduct. Claimant's oral motion was based upon allegations that defense counsel had indirectly approached claimant's expert witness, Thomas A. Coughlin III, a former Commissioner for DOCS, and attempted to dissuade him from testifying for claimant at the scheduled trial. By letter to the Court dated May 1, 2000 claimant's attorney asserted that the State's conduct in approaching claimant's intended expert witness was an ethical breach which compromised claimant's case and requested an adjournment of the scheduled trial date. On May 4, 2000 claimant's attorney orally moved to strike the defendant's answer and for sanctions.

The Court received testimony from various witnesses on the motion. Mr. Coughlin testified regarding a telephone call received on Friday April 28, 2000 in which DOCS Deputy Counsel Anthony Annucci advised him of the potential consequences of offering expert testimony against DOCS in this case. The two men discussed the possible recusal of the Department of Law from its continued representation of Mr. Coughlin in numerous unrelated matters and reexamination of the issue of indemnification of Mr. Coughlin by the State in numerous pending lawsuits in which the former commissioner was a named defendant. Annucci informed Coughlin that the telephone call had been made at the request of the "number one A.G. in New York City" and Coughlin testified that he believed the call was intended to intimidate him.

The Court also heard from June Duffy, one of two bureau chiefs in the Attorney General's New York City litigation bureau. She admitted that she asked Anthony Annucci to speak with Mr. Coughlin to convince him that it was inappropriate for Coughlin to testify at the Robinson trial. Duffy alleged that she was concerned that the State might have to attack Coughlin's credibility in this case while at the same time representing him on 89 pending lawsuits.

Anthony Annucci testified that he was contacted by AAG Duffy who requested that either he or Commissioner Goord reach out to Coughlin to discuss the problems that would arise should Coughlin testify as an expert in the instant matter. Annucci claimed that he decided to contact Coughlin based, in part, upon a perceived moral obligation to raise Coughlin's awareness of the issues.

Following the hearing the Court, in the exercise of its discretion, issued a decision and order dated September 11, 2000 which denied claimant's request to strike the defendant's answer and granted the request for sanctions pursuant to 22 NYCRR Part 130. In its decision the Court found, inter alia, that the State's method of communicating with former Commissioner Coughlin "egregiously fails to conform to accepted notions of conduct" and that the communication was "undertaken for the improper purpose of attempting to dissuade him from testifying." In arriving at its determination on the motion the Court weighed the credibility of each of the witnesses and accepted as true Coughlin's testimony that his discussion with Mr. Annucci included reference to the need to review issues pertaining to indemnification should he testify against the State at trial. The Court also specifically found that no reasonable attorney would attempt to communicate with a client appearing as an expert witness for an adversary by the means employed by Ms. Duffy.

Relying in part upon the action taken by the Court in an unreported decision and order of Mr. Justice Mugglin in Olsen v Delhi Motor Co., Sup. Ct., Delaware County, May 30, 1991, the Court imposed a monetary sanction of $500.00 upon Assistant Attorney General Duffy for initiating Annucci's contact with Mr. Coughlin for the improper purpose of preventing him from testifying at trial. The Court also found that Ms. Duffy intended the ex parte communication to act as a threat that Coughlin's defense and indemnification on the then pending cases in which he was a named defendant would be imperiled should he testify as an expert in the Robinson case. The Court imposed the monetary sanction against Duffy only, finding that Annucci was merely a conduit for the threat and beyond the class of persons subject to sanctions pursuant to 22 NYCRR Part 130.

Duffy was directed to deposit the sum of $500.00 with the Lawyers' Fund for Client Protection within 30 days of the date of filing of the decision and order. No such deposit was ever made.

Instead the defendant filed a notice of appeal with the Appellate Division, Second Department "from that portion of the Order which grants claimant's motion under 22 NYCRR 130, part 130 (sic) imposing sanctions against Assistant Attorney General June Duffy on the ground that the Court erred in its findings of fact and in its conclusions of law."

By decision and order on motion dated July 2, 2001 the Second Department determined to treat the State's purported notice of appeal as of right as an application for leave to appeal and then granted the leave application pursuant to CPLR 5701 [c]. In addition the Court enlarged the appellant's time to perfect the appeal. That Court later dismissed the appeal in a decision and order dated October 22, 2001 (Robinson v State of New York, 287 AD2d 610) stating:
"The order appealed from imposed a sanction following a hearing on the claimant's oral application. It did not decide a motion on notice, and therefore is not appealable as of right (see, CPLR 5701 [a][2]; Stern v Stern, 273 AD2d 298; Velasquez v C.F.T., Inc., 267 AD2d 229; Beige v Beige, 265 AD2d 438; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760). The defendant failed to move for leave to appeal (see, CPLR 5701 [c]), and we decline to grant leave under the circumstances (see, Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599; Cuffie v New York City Health & Hosps. Corp., 260 AD2d 423; cf., Blaisdell v Huntington Hosp., 270 AD2d 376; Pigott v Hamalian, 262 AD2d 383)".

In apparent recognition of the inconsistency between these two orders and in response to the State's motion for reargument the Court then issued a third decision and order dated May 1, 2002 in which it recalled and vacated that portion of the July 2, 2001 decision and order which had treated the State's notice of appeal as of right as an application for leave to appeal. The State's motion to reargue was denied.

Despite the dismissal of the defendant's appeal and denial of defendant's subsequent motion to reargue Assistant Attorney General Duffy never deposited the fine monies with the Lawyers' Fund for Client Protection as directed in this Court's September 11, 2000 decision and order. The State now moves to vacate that order or, alternatively, seeks a Court order directing entry of a judgment for the amount of the sanction.

A motion to vacate a prior order is governed by CPLR 2221 and 5015. The former, as it relates to a motion to vacate, merely provides procedural guidance regarding the making of such a motion. Rule 5015, on the other hand, sets forth the following grounds upon which an interested person may seek relief from a judgment or order:
1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or

2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or

3. fraud, misrepresentation, or other misconduct of an adverse party; or

4. lack of jurisdiction to render the judgment or order; or

5. reversal, modification or vacatur of a prior judgment or order upon which it is based.

An examination of the instant motion reveals that none of the enumerated grounds for a motion to vacate is applicable to this matter. Accordingly the motion to vacate the Court's September 11, 2000 decision and order is denied.

As noted above, however, movants also requested alternative relief seeking an order directing judgment on the $500.00 sanction.

The procedures relevant to the imposition of costs and/or sanctions for frivolous conduct in an action or proceeding are governed by 22 NYCRR Part 130. In addition to requiring a written decision setting forth the conduct on which the award or imposition is based, the reason(s) why the Court found the conduct to be frivolous and the justification for the amount of the sanction imposed, section 130-1.2 of the Rules of the Chief Administrator further provides: "[a]n award of costs or the imposition of sanctions or both shall be entered as a judgment of the Court." For reasons which remain unclear the sanctions imposed by this Court's September 11, 2000 decision and order were never entered as a judgment as required by this section.

Thus, it appears appropriate that the Clerk of this Court be directed and hereby is directed to enter immediately a judgment in the amount of $500.00 against June Duffy payable to the Lawyers' Fund for Client Protection and to transmit copies of said judgment to the attorneys of record for both parties, Ms. June Duffy and the Fund.

October 21, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 21, 2003;
  2. Affirmation of Deon J. Nossel dated August 21, 2003 with exhibits;