New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2003-030-581, Claim No. 100625


Claim dismissed for failure to appear and prosecute on the trial date, which had been scheduled more than two months earlier. Request for adjournment of trial denied. Counsel failed to comply with the Uniform Rules for the Engagement of Counsel

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:
Third-party defendant's attorney:

Signature date:
October 22, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This is a Decision and Order rendered upon Defendant's objection to Claimant's request for an adjournment, and its oral motion to dismiss Claim Number 100625 based upon a failure to appear and prosecute. The matter was scheduled for trial on the issue of liability commencing on October 20, 2003. Notice of the trial date was remitted to both parties first by letter dated July 30, 2003, and subsequently in a Trial Preparation Order dated September 5, 2003. Three days were set aside for the trial. In the July 30, 2003 letter, the Trial Preparation Order and the letter transmitting the Trial Preparation Order, counsel were advised that they were to consider this an Actual Trial Engagement pursuant to the Uniform Rules for the Engagement of Counsel.

A Trial Preparation Conference was held on Wednesday, September 24, 2003, during which exhibits were marked for identification and as evidence, in anticipation of trial. Claimant's attorney presented a trial subpoena for the Court's execution a few days later.

On Friday, October 17, 2003 at 2:30 p.m., while the Court was presiding over trials at Green Haven Correctional Facility, chambers received a telephone call from Claimant's counsel requesting an adjournment of the trial that had been marked to commence on Monday, October 20, 2003 at 9:30 a.m. Counsel was advised that the request for an adjournment could not be considered until Monday, October 20, 2003 since the Court was not in chambers but presiding over trials elsewhere, and was reminded of the applicability of Part 125 of the Uniform Trial Court Rules concerning the engagement of counsel. Between 4:00 and 4:30 p.m. that afternoon, an Affirmation of Actual Engagement, executed by John J. Sobolewski, an attorney associated with the Law Offices of Charles Berkman, counsel of record for the Claimant, was transmitted by FAX to chambers. [Court's Exhibit 1]. It was not, however, served upon the Assistant Attorney General as required by 22 NYCRR §125.1(e)(1), nor did it contain information as to when the conflicting matters noted as scheduled for trial in the two other courts were first scheduled. Two other attorneys employed by the office were allegedly unavailable for medical reasons. Counsel telephoned the Assistant Attorney General at approximately 4:00 p.m. on Friday to indicate that he was requesting an adjournment. The Assistant Attorney General did not consent to the request.

On Monday, October 20, 2003, the Assistant Attorney General appeared, ready for trial, and two of the defendant's witnesses appeared as well. Telephone calls to the other Courts indicated in the Affirmation revealed only the information that Mr. Berkman was engaged on trial before Justice Francois Rivera, Kings County Supreme Court, and that Mr. Sobolewski was scheduled to appear at the trial part before Justice Kibbi Payne that morning, and that the Clerk thought that it would go forward. The Clerks could not say when the matters had been marked for trial.

The Court reserved decision on the application for the adjournment and upon the oral motion, indicating it would seek out further information from counsel for Claimant.

Chambers telephoned Claimant's attorney's office again, advised counsel that further information and substantiation was required, including substantiation of the respective medical conditions of the two other attorneys in the office, and information as to when the two other matters had been scheduled for trial.

Another copy of the Affirmation of Engagement forwarded by Mr. Sobolewski on Friday was transmitted by FAX at approximately 4:55 p.m. on Monday, October 20, 2003, together with another Affirmation of Engagement by Mr. Sobolewski, and a Supplemental Application for Adjournment executed by Charles Berkman. In the Supplemental Application, Mr. Berkman indicates that the case was marked "Final, a jury must be selected, approximately 2 months ago." He further states that "a week ago, Friday" - by this Court's calculations October 10, 2003 - he was "sent out by Justice Torres and a jury was in fact selected on that day. I had my witnesses in court ready to proceed to trial, and after a couple of days' waiting time, we were assigned to Justice Francois Rivera. The trial is continuing at this very moment."

With respect to Mr. Sobolewski, Mr. Berkman indicates that his case was "directed to proceed approximately 6-8 weeks ago by Justice Beale. While Mr. Sobolewski attempted to have it adjourned, Justice Beale directed him to select a jury, which he did, and he is in fact on trial at the moment before Justice Payne."

With respect to the two other attorneys, Mr. Berkman provides more detail concerning their respective medical conditions, but does not provide any doctor's note or other substantiation of his statements.

These additional affirmations do not appear to have been served on opposing counsel.

The Court has reviewed the file, and finds that as an initial matter, the claim was scheduled for trial on May 30, 2002 when Claimant was proceeding
pro se. Thereafter, and in a letter to chambers dated May 21, 2002 confirming discussion of the matter over the telephone, present counsel indicated they were appearing on Claimant's behalf, and were requesting an adjournment of the May 30, 2002 trial date. That request was granted, discovery was reopened, and the parties were directed to complete discovery on several occasions. The case was called in for a Calendar Call on June 26, 2003 for failure to timely file a Note of Issue and Certificate of Readiness. A Note of Issue and Certificate of Readiness was filed on July 8, 2003.
After carefully considering Claimant's request for an adjournment of the trial of this matter, the request is denied and Defendant's oral motion to dismiss is hereby granted. Trial of the matter was scheduled for more than two (2) months in advance, no substitute counsel was produced on the trial date, and the Court is entitled to impose whatever sanction is permitted by law.
See 22 NYCRR §125.1(g). Counsel has failed to comply with the Uniform Rules for the Engagement of Counsel by failing to advise the other courts that they were actually engaged as required, failing to serve opposing counsel with any of the affidavits now supplied to this Court, failing to engage substitute counsel in a matter scheduled for more than two months, and failing to provide additional information requested by the Court, including exactly when they were notified that they were scheduled for trial, and when - and if - they ever advised the other Courts that they were actually engaged before this Court. While the Court may be sympathetic to the respective medical conditions asserted, given the limitations of the firm's two associates, and the awareness that the potential for trial conflicts abounds, it was incumbent upon counsel to anticipate the conflicts that have arisen.
Accordingly, Claim Number 100625 is hereby dismissed.

Let judgment be entered accordingly.

October 22, 2003
White Plains, New York

Judge of the Court of Claims