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
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
On August 2, 2002, an affirmation was received by the Court via fax in which
Mr. Sanders stated,
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.