New York State Court of Claims

New York State Court of Claims

HOLMAN v. STATE OF NEW YORK, #2003-018-256, Claim No. 101699


Synopsis


The Court finds that the claimant's law firm's conduct has been frivolous as set forth in 22 NYCRR § 130-1.1(c)(2), and further finds the firm has failed to appear at a scheduled court appearance and imposes sanctions.

Case Information

UID:
2003-018-256
Claimant(s):
KENNETH HOLMAN
Claimant short name:
HOLMAN
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101699
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
PROSKIN LAW FIRM, P.C.
Lisa Anne Proskin, EsquirePeter L. Sanders, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 23, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This decision addresses the imposition of sanctions against the Proskin Law Firmpursuant to 22 NYCRR § 130. This case was scheduled for trial on July 11, 2002, as part of the Court's regular prison term.[1] When called for trial, claimant requested an adjournment on the basis that his attorney was not present. Further inquiry led to the Assistant Attorney General, Joel L. Marmelstein, noting that he had correspondence from Attorney Lisa Anne Proskin as did the claimant. The Court telephoned the firm at that time to ascertain its position on the matter and spoke with Peter Sanders, Esquire. Mr. Sanders advised the Court that although there was no signed retainer agreement in the file, he believed the firm was or would be representing the claimant and supported the request for an adjournment. The State opposed the requested adjournment as Mr. Marmelstein was present and prepared for trial.

The Court granted the adjournment and directed that the Proskin Firm submit an affidavit setting out the information conveyed to the Court via telephone on July 11, 2002, to allow the State an opportunity to respond to the firm's position.

On August 2, 2002, an affirmation was received by the Court via fax in which Mr. Sanders stated,[2] in effect, that the firm believed it was representing Mr. Holman and had formally appeared and that an adjournment was needed for the firm to prepare for trial.

A written decision and order based upon counsel's submissions and defendant's motion to dismiss (M-65652) was filed in the Clerk's Office on February 11, 2003. Conformed copies of the filed order were duly mailed to Mr. Sanders on the same day. The last paragraph in that order reads, "...based upon the foregoing, claimant's counsel, the Proskin Law Firm, is directed to file a notice of appearance and a note of issue and certificate of readiness within 20 days of the date this order is filed with the Clerk of the Court, or this Court will consider, upon motion, the imposition of sanctions."

There was no action taken by the Proskin Law Firm. The Court received a letter from claimant dated May 13, 2003, requesting clarification of the Court's decision and order. On May 22, 2003, the Court wrote to the firm and sent a copy of the claimant's letter. The Court's letter set forth the background and noted that the firm had failed to comply with the directives in the decision and order. That letter directed the firm to file the appropriate documents within five days. Again, no action was taken.

On July 11, 2003, the Court, by letter, directed the Proskin Firm, specifically Lisa Anne Proskin and Peter Sanders, to appear in Syracuse at 10:00 a.m. on July 30, 2003, for a sanctions hearing. No one from the firm appeared on that date nor did anyone write, fax, telephone, or otherwise communicate with the Court or with the Assistant Attorney General, Mr. Marmelstein. The State appeared and took no position on this matter.

The actions of the members of the Proskin Law Firm in advising the Court that it represented claimant and needed an adjournment in order to prepare for trial, then failing to take any further action toward resolving this case, then failing to comply with this Court's prior decision and order, or communicate with the Court or opposing counsel, leads the Court to find that the firm's actions have been undertaken primarily to delay or prolong this litigation.

Having provided the Proskin Law Firm an opportunity to be heard, the Court finds that the firm's conduct has been frivolous as set forth in 22 NYCRR § 130-1.1(c)(2), and hereby imposes sanctions in the amount of FIVE HUNDRED DOLLARS ($500.00) to be deposited with the Lawyers' Fund for Client Protection, 119 Washington Avenue, Albany, New York, 12210.

Further, the Court finds the firm has failed to appear at a scheduled court appearance and imposes sanctions in the amount of FIVE HUNDRED DOLLARS ($500.00) to be deposited with the Lawyers' Fund for Client Protection, 119 Washington Avenue, Albany, New York, 12210, pursuant to 22 NYCRR § 130-2.1(a). The Court will allow the firm an opportunity to submit a motion for reconsideration of the imposition and amount of this sanction based upon the factors set forth in 22 NYCRR § 130-2.1(b). That motion must be filed in the Clerk's Office within thirty days of the date this order is filed therein.

This Court further finds that the claimant, Kenneth Holman, was not responsible for any of the frivolous conduct found herein.

LET JUDGMENT BE ENTERED ACCORDINGLY in accordance with 22 NYCRR § 130-1. This judgment shall be held in abeyance for a period of thirty days from the date of the filing of this Decision.


September 23, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]The cases heard at prison term are pro se matters only.
[2]The entire affirmation is attached hereto to avoid having to duplicate it in the body of the decision.