Claimant's attorney moves to lift sanctions imposed by this Court in a prior
The State took no position but noted
that a motion to dismiss was pending and Claimant's attorney had not submitted
The tortured history of this case is as follows:
The claim was originally filed and served by Claimant, pro se, and
various discovery demands were made and complied with by Claimant. As such, it
was scheduled for trial at a prison term of this Court held on July 11, 2002, at
Watertown Correctional Facility. Claimant informed the Court, at that time,
that he was represented by the Proskin Law Firm and requested an adjournment to
allow someone from that firm to appear. After a telephone conversation between
the Court and Peter L. Sanders, Esquire of the Proskin Law Firm, the Court
granted the adjournment over the defendant's strenuous objection. As directed
during that telephone conversation, Mr. Sanders filed an affirmation in support
of the adjournment. Specifically, Mr. Sanders' affirmation advised the Court
that, despite the Proskin Law Firm's failure to file a notice of appearance, it
was the intention of the law firm to represent the claimant. The Assistant
Attorney General assigned to this case, Mr. Marmelstein, responded to Mr.
Sanders' affirmation and also filed a motion to dismiss the claim. The Proskin
Law Firm did not submit any response to Defendant's motion to dismiss.
In a Decision and Order, the Court denied Defendant's motion, and based upon
the representations in Mr. Sanders' affirmation, directed the Proskin Law Firm
to file a notice of appearance along with a note of issue and certificate of
readiness within twenty days of the date the Decision and Order was
The Clerk's Office of the Court of
Claims sent two copies of this Decision and Order to Peter L. Sanders, Esquire
of the Proskin Law Firm on February 11, 2003. Nothing was done.
Claimant wrote to the Court on May 13, 2003, and the Court sent a cover letter
dated May 22, 2003, with a copy of the claimant's letter to the Proskin Law
Firm. In the cover letter, the Court informed the firm of their failure to
comply with its February 11, 2003 Decision and Order and allowed the firm five
additional days to comply. Again, nothing was done by the Proskin Law
Almost two months later, the Court sent a letter dated July 11, 2003 to the
Proskin Law Firm directing attorneys Lisa Anne Proskin and Peter Sanders to
appear before the Court to address the issue of sanctions on July 30, 2003. No
one from the law firm appeared on that date and no other communication was
received. As a result, the Court imposed sanctions based upon 22 NYCRR
§130-1.1(c) for failing to file a notice of appearance and note of issue,
and imposed an additional sanction for the attorneys failure to appear at the
July 30, 2003 hearing pursuant to NYCRR § 130-2.1. Pursuant to the Order,
the Proskin Law Firm was permitted to make application, within thirty days of
the date the Order was filed,
for the Court to
reconsider the sanctions imposed for their failure to appear on July 30, 2003.
A copy of this Order was sent to Lisa Proskin and Peter Sanders of the Proskin
Law Firm from the Chief Clerk of the Court of Claims, with a letter dated
October 14, 2003. Again, nothing was done.
On July 31, 2003, Mr. Marmelstein sent a Demand for Resumption of Prosecution
to the Proskin Law Firm, pursuant to CPLR 3216, as well as to the claimant, and
it was filed in the Clerk's Office on July 31, 2003. Again, there was no
response from the Proskin Law Firm.
On January 23, 2004, a motion to dismiss was filed by Mr. Marmelstein for
failure to prosecute returnable on February 4, 2004. Copies were sent to the
Proskin Law Firm and to the claimant, by certified mail, return receipt
requested. No response was filed by the law firm, so on February 5, 2004, the
Court wrote to the Proskin Law Firm (certified mail, return receipt requested)
and included with that letter a copy of the Decision and Order imposing
sanctions and a copy of a letter from Claimant.
In February 2004, Mr. Proskin called the Court and spoke with the Judge's
confidential law clerk. Mr. Proskin then wrote the Court by letter dated
February 25, 2004, stating that his firm never received the Decision and Order
dated October 10, 2003 [sic], or any notice of the sanctions
Mr. Proskin then filed the instant
motion seeking relief from the sanctions on the basis that the firm was unaware
of the Court's initial Decision and Order. Oral argument was held on the motion
on June 1, 2004. The State took no position.
At oral argument, Mr. Proskin offered no explanation for the various documents
not being received by his office. The fact that some of the asserted
not-received correspondence originated in chambers and some from the Clerk's
Office in Albany indicates the problem lies at the receiving, not the sending,
end. Interestingly, none of the correspondence sent to the Proskin Law Firm has
ever been returned to the Court or the Clerk's Office as undeliverable.
Furthermore, there was no assertion that the Assistant Attorney General's
correspondences, demands, and notices of motion were not received, yet no action
was taken on these matters either.
The law firm points to a letter sent to claimant on August 9, 2002, which
reads, in part:
I have reviewed your file and as we do not have a medical
opinion indicating medical malpractice, we will be unable
to continue representing you in this matter.
Mr. Proskin seems to rely on this paragraph to support his contention that in
August 2002, a medical opinion was given to the firm which, although critical of
Claimant's medical care at the State prison facility, did not support a cause of
action for medical malpractice. Mr. Proskin holds this letter as evidence that
his firm no longer represented the claimant. The letter to Claimant is poorly
worded at best, failing to mention the medical consultant. Yet, even assuming
for the moment that the firm believed their representation of the claimant ended
in August 2002, no action was taken to inform either the Court or the Assistant
Attorney General that the firm would no longer be representing Claimant. Even
after a motion to dismiss was filed, the Proskin Law Firm took no action to
advise the Assistant Attorney General of its position. Ironically, this August
9, 2002 letter was sent to Claimant only seven days after Peter Sanders, Esquire
sent the affirmation to the Court advising that the firm represented Claimant,
and less than a month after the Court adjourned the trial based upon the fact
that the Proskin Law Firm represented Claimant.
In Claimant's Court file there was also a copy of a letter from the Proskin Law
Firm sent to Claimant on November 28, 2000, which reads, in part:
I have met with a doctor to discuss your case. He has found that
your treatment deviated from the acceptable medical standard and
thus constitutes medical malpractice.
Obviously, this letter directly contradicts the assertion made that a
consultation was held in August 2002, which resulted in a different opinion. No
satisfactory explanation for the discrepancy was provided.
Another letter, which fails to reflect Mr. Proskin's assertion that as of
August 2002 the firm terminated its relationship with Claimant, is one dated
February 25, 2004, in which Mr. Proskin wrote to the claimant stating:
Should Judge Fitzpatrick have a hearing or conference in relation
to this matter, I will make my overall feelings in relation to continued
representation of you known openly to her.
At no time after the submission of Mr. Sanders' affirmation dated August 2, 2002
through the submission of Mr. Proskin's affidavit attached to this motion, was
there any affirmative indication to the Court or the Assistant Attorney
General's office that Mr. Holman was no longer being represented by the Proskin
Law Firm. No effort was made by the firm to clarify their position with the
claimant, the defendant, or the Court.
effort was made to protect the claimant's position when a demand for the
resumption of prosecution or a motion to dismiss was made by the
There wasn't even a letter to
Claimant advising him that he needed to respond pro se
or seek other
counsel. Moreover, even after the Proskin Law Firm had actual confirmed notice
of the Court's Decisions and Orders, the firm has made no effort to comply with
the requirements of the Orders or resume prosecution of the case, or move to be
relieved from representing claimant.
the only action taken was a self-serving one, to avoid the sanctions previously
After providing the Proskin Law Firm the opportunity to respond to the conduct
the Court found warranted the imposition of sanctions at the hearing on July 30,
2003, the Court finds the firm's actions even more reprehensible. The Court is
not persuaded that for over a period of almost one year, every piece of
correspondence regarding this claim sent from chambers and the Court Clerk's
Office was mysteriously not received by the firm. Moreover, even accepting such
an absurdity, it does not explain or excuse the firm's complete lack of response
to Defendant's motions, demands and correspondence. Such unprofessional conduct
fully supports this Court's finding that the Proskin Law Firm's action or more
aptly, inaction, was frivolous and unnecessarily delayed this action, and its
failure to appear on July 30, 2003, was unjustified. Motion DENIED.