New York State Court of Claims

New York State Court of Claims

ROSENTHAL v. THE STATE OF NEW YORK, #2004-019-515, Claim No. 105222, Motion No. M-67867


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:
NAPOLI, KAISER & BERN, LLPBY: Denise Rubin, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 2, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for an order to vacate the Decision & Order of this court dated July 14, 2003 which dismissed this claim and to restore this case to the trial calendar pursuant to 22 NYCRR 206.15. The State of New York (hereinafter "State") opposes the motion.

In a Decision and Order dated July 14, 2003 and filed with the Clerk of the Court on July 23, 2003, this court dismissed this claim based upon claimants' failure to appear for trial on the scheduled date of June 26, 2003 pursuant to 22 NYCRR 206.15. (Rosenthal v State of New York, Ct Cl, July 14, 2003, Lebous, J., Claim No. 105222 ). More specifically, in said Decision and Order this court outlined the time table of events leading up to said dismissal as follows:
[t]he Amended Claim was filed on November 19, 2001. The State's Verified Answer to Amended Claim was filed on December 17, 2001 and various discovery documents were filed thereafter. A Trial Note of Issue was filed on February 18, 2003. A pre-trial conference, via telephone, with Mr. Ari Kornhaber, an associate with the firm Napoli, Kaiser & Bern, and Mr. Romani from the Attorney General's Office was held on April 22, 2003 and a bifurcated trail [sic] was scheduled for June 26, 2003 at 9:00 a.m. A trial letter was sent to the attorneys on April 23, 2003, confirming the June 26, 2003 trial date. Furthermore, Claimants' attorneys served subpoenas, dated May 20, 2003, returnable on the June 26, 2003 trial date. These subpoenas were signed by Steven Krentsel, Esq., a member of the Napoli firm. On June 24, 2003 at approximately 3:55 p.m., less than 1 ½ days before the scheduled trial, the Court received a telephone call from Attorney Krentsel asking for an adjournment due to the fact that no attorney was available to travel [sic] the Binghamton District for trial. On June 25, 2003, the Court received more two [sic] telephone calls from Attorney Krentsel. The Court explained to Claimants' counsel that this trial date had been scheduled, on notice to the parties, for over two months and that as many as five weeks ago, Claimants' attorneys had confirmed this trial date by serving subpoenas dated May 20, 2003.

(Rosenthal, Ct Cl, July 14, 2003, Lebous, J., Claim No. 105222, pp 1-2).

On the date of trial, June 26, 2003, claimants' attorneys of record, Napoli, Kaiser & Bern, LLP., failed to appear and instead sent local counsel, Jeffrey Husisian, Esq., of Aswad & Ingraham, on their behalf to request an adjournment despite being advised by chambers by telephone on June 24 and 25, 2003 that no adjournment would be granted. On said trial date, local counsel, Mr. Husisian, orally informed the court that two of claimants' attorneys of record, Ernest Reece and Randolph Janis, were engaged in other trials, while a third attorney, Jeffrey Guzman had left for his honeymoon. Mr. Husisian, however, offered no affidavit to that effect from Napoli, Kaiser & Bern, LLP pursuant to Part 125 of the Rules of the Chief Administrator of the Courts.[1] (See also 22 NYCRR 206.17). Further, Mr. Husisian was unable to furnish any information as to the whereabouts and availability of attorney Ari Kornhaber (who participated in the pre-trial conference scheduling the trial) or attorney Steven Krentsel (the attorney who signed the trial subpoenas and telephoned the court the two days prior to trial requesting the adjournment) or any of the firm's other attorneys.[2] (22 NYCRR 125.1 [e] [2] [iv]). Nor for that matter did claimants ever provide the dates on which each of those other trials were scheduled. (22 NYCRR 125.1 [e] [2] [i]). It is well settled that adjournments on the ground of engagement of counsel are governed by Part 125 of the Rules of the Chief Administrator of the Courts and require the filing with the court of an affidavit or affirmation of engagement, together with proof of service thereof on all parties.[3] (22 NYCRR 125.1 [e] [1]). On the date of trial, claimants' counsel failed to comply with 22 NYCRR 125.1 and, as such, the dismissal on the date of the trial was proper in the first instance.

Now, by way of this motion, claimants seek an order vacating that dismissal and restoring the claim to the trial calendar. (22 NYCRR 206.15). In support of their motion, claimants argue that they had a reasonable excuse for failure to appear at trial, namely engagement of counsel. As stated above, counsel did not satisfy the requirements of Part 125 of the Rules of the Chief Administrator of the Courts as of the date set for trial. However, the instant moving papers contain much of the information, in the form prescribed, required by Part 125 of the Rules of the Chief Administrator of the Courts. Additionally, claimants' papers demonstrate the existence of a meritorious cause of action. (Cippitelli v Town of Niskayuna, 277 AD2d 540). Most importantly, however, is the strong public policy favoring determination of cases on their merits. (Dawson v Suburban Sales & Service Inc., 267 AD2d 733; Heinrichs v City of Albany, 239 AD2d 639; Drucker v Ward, 293 AD2d 891). Stated another way, counsel's conduct should not serve to punish claimants here. In view of the foregoing, the court finds that the dismissal should be vacated and the case restored to the court's calendar. (CCA 19 [3]; 22 NYCRR 206.15).

That having been said, however, counsel's conduct warrants the scheduling of a hearing pursuant to 22 NYCRR Part 130 in order to determine whether the imposition of sanctions and/or costs are appropriate. Accordingly, in accordance with 22 NYCRR Part 130, a hearing will be held before this court on a date to be determined, on notice to the parties, at the Court of Claims, State Office Building, 44 Hawley Street, 18th floor, Binghamton, New York, to determine if sanctions and/or costs should be imposed upon the firm of Napoli, Kaiser & Bern, LLP. The State will have the opportunity to submit to the court in advance of the hearing, if it so chooses, written proof of costs, including but not limited to travel expenses by the witnesses incurred in connection with their appearance at the June 26, 2003 trial date. The maximum fine to be imposed shall not exceed $2,500 in accordance with 22 NYCRR 130-2.2.

Accordingly, for the reasons stated above, it is ORDERED that claimants' motion, No. M-67867, is GRANTED and a hearing on sanctions and/or costs will be scheduled.

March 2, 2004
Binghamton, New York
Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:
  1. Amended Claim, filed November 19, 2001.
  2. Verified Answer filed December 17, 2001.
  3. Verified Answer to Amended Claim, filed December 17, 2001.
  4. Preliminary Conference Stipulation and Order, dated April 17, 2002.
  5. Note of Issue, filed February 18, 2003.
  6. Copy of Letter from Jeffrey Husisian, Esq. to New York State Court of Claims, dated July 9, 2003.
  7. Trial transcript, dated July 16, 2003, and received in the Chief Clerk's Office on July 22, 2003.
  8. DECISION AND ORDER, Lebous, J., Claim No. 105222, filed July 23, 2003.
  9. Letter from Joan C. Long, Esq., Counsel to Hon. Ferris D. Lebous to Denise Rubin, Esq., dated December 12, 2003.
  10. Letter from Joseph F. Romani, AAG to Denise Rubin, Esq., dated December 18, 2003.
  11. Amended Notice of Motion, Motion No. M-67867, dated January 6, 2004, and filed January 9, 2004.
  12. Affirmation of Denise A. Rubin, Esq., in support of motion, dated January 6, 2004, with attached exhibits.
  13. Affidavit of Bert Rosenthal, in support of motion, sworn to November 24, 2003.
  14. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated January 23, 2004, and filed January 26, 2004, with attached exhibits.
  15. Memorandum of Law, in opposition to motion, dated January 23, 2004.
  16. Reply Affirmation of Steven E. Krentsel, Esq., in support of motion, dated January 29, 2004, and filed February 2, 2004, with attached exhibit.

[1]The court assumes that Mr. Husisian was not provided with this information in the first instance from Napoli, Kaiser & Bern, LLP.
[2]It is also worth noting that the subpoenaed witnesses showed up at trial as required pursuant to the subpoenas served by Napoli, Kaiser & Bern, LLP. (State's Exhibit M).
[3]This matter was set for trial at least two months in advance upon the consent of all attorneys and the court, thereby triggering the Uniform Rules for the Engagement of Counsel. (22 NYCRR 125.1 [g]).