New York State Court of Claims

New York State Court of Claims

HOLMAN v. STATE OF NEW YORK, #2004-018-316, Claim No. 101699, Motion No. M-68430


The Proskin Law Firm's motion to lift sanctions against their firm is DENIED.

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:
THE PROSKIN LAW FIRM, P.C.By: Arnold W. Proskin, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 19, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's attorney moves to lift sanctions imposed by this Court in a prior Decision and

Order.[1] The State took no position but noted that a motion to dismiss was pending and Claimant's attorney had not submitted any response.

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 filed.[2] 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 Firm.

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,[3] 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 hearing.[4] 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.[5]

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.[6] No 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 defendant.[7] 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.[8] Instead, the only action taken was a self-serving one, to avoid the sanctions previously imposed.

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.

July 19, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion....................................................................................................1

Affirmation of Arnold W. Proskin, Esquire, in support, with exhibits

attached thereto...........................................................................................2

[1]Holman v State of New York, Ct Claims, J. Fitzpatrick, Claim No. 101699, filed October 14, 2003, UID No. 2003-018-256.
[2]The Decision and Order (Holman v State of New York, Ct Claims, J. Fitzpatrick, Claim No. 101699, Motion No. M-65652, filed February 11, 2003, UID No. 2002-018-197).
[3]Holman v State of New York, Ct Claims, J. Fitzpatrick, Claim No. 101699, filed October 14, 2003, UID No. 2003-018-256.
[4]Separate notification of the sanctions hearing was sent to Ms. Proskin and Mr. Sanders.
[5]This letter was signed by Lisa Anne Proskin.
[6]The Assistant Attorney General submitted a response to Mr. Sanders' affirmation dated August 2, 2002 on August 16, 2002, and was not notified that it was the firm's position that as of August 9, 2002, they were no longer representing Claimant.
[7]These documents were apparently served upon the Proskin Law Firm by certified mail, return receipt requested.
[8]Since the date of oral argument, Mr. Proskin has brought, by Order to Show Cause, a request to be relieved from further representation of the claimant.