New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2006-013-015, Claim No. 105385, Motion No. M-71365


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:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


On March 15, 2006, the following papers were read on motion by Claimant for an order amending the amended preliminary conference order of February 10, 2005:

Notice of Motion, Affirmation and Exhibits Annexed

Opposing Affirmation and Exhibit Annexed

Reply Affirmation and Exhibits Annexed

Filed Papers: Claim

Upon the foregoing papers, this motion is granted conditionally and denied to the extent noted.

Claimant was a passenger in a bus operated by the Department of Correctional Services (DOCS) and allegedly sustained serious injuries on or about October 5, 2001, after having been involved in a motor vehicle accident.

Claimant’s counsel moves for an order amending the preliminary conference order dated February 10, 2005 and an extension of the plaintiff’s [sic] time to file a note of issue.

The last time that there was motion practice in this claim, the Defendant moved for an order striking the note of issue and certificate of readiness (Motion No. M-68695), which had been filed by Claimant on June 17, 2004. A decision and order dated December 20, 2004 granted that relief. After conferring with Claimant’s counsel, an amended scheduling order was issued on February 10, 2005, which, inter alia, set deadlines for the completion of certain depositions by September 15, 2005 and for the provision of certain medical authorizations, and a new deadline of October 15, 2005 was set for filing a note of issue and certificate of readiness (Exhibit A to the moving papers).

The tortured history of this matter, up until that point in time, is laboriously recited in my decision and order in M-68695, with the following notable comments:

While Claimant’s counsel has demonstrated a blatant disregard of my scheduling order and made disingenuous assertions in the certificate of readiness and generally demonstrated a degree of contempt for the Court’s authority, I will not, at this time, impose any sanctions on him. Counsel’s future conduct and his compliance with future orders will guide any reconsideration of this question.

With that backdrop, one might have thought that Claimant’s counsel would have been scrupulously attentive to the new scheduling order. You would be wrong.

Below follows a summary of Claimant’s counsel, Charles Berkman’s current litany of excuses:
1. He assigned this matter to an employee of his firm, Sambrata Sengupta, Esq., who wrote to the Defendant on February 25, 2005 with certain documents and authorizations, along with an invitation to call the calendar clerk, Franca Talavera, “to set up the depositions;”

2. At some glaringly unspecified date, both Ms. Talavera and Mr. Sengupta resigned from the firm;

3. At another glaringly unspecified date, the file was assigned to John Sobeleski, Esq., who resigned from the firm “during this past summer without any notice;”

4. Mr. Berkman represents to the Court that at no time was he informed by Mr. Sobeleski “that there was any problem with complying with the court order and I had reason to believe that [he] had resolved all discovery matters on this case as he had assured me that he had done so;”[1]

5. Mr. Berkman then advises that the related Supreme Court proceeding in Wyoming County is still pending with “[a]ll depositions” having been held, and settlement with one of those defendants, and that a “summary judgment motion on that case was recently decided in plaintiff’s [sic] favor;”[2]

6. Mr. Berkman implies that depositions were arranged for April 19, 2006, and that Defendant brought to his attention that Claimant had been transferred from Attica Correctional Facility to Groveland Correctional Facility, an event he supposedly had no knowledge of. Affirmant avers that he could not have contacted the “plaintiff” [sic], because he was not aware of the transfer.

Addressing this latter recitation, one would think that attorney and client would keep in touch with one another, or that counsel could have obtained Claimant’s place of incarceration from the DOCS website and its instantaneous “inmate lookup” feature, or come to the realization that Attica Correctional Facility and Groveland Correctional Facility are equidistant from Rochester, but that Groveland is some 40 miles closer to Brooklyn, the location of counsel’s offices. Moreover, to the extent that Mr. Berkman seemingly implies a duty on the part of the Defendant, or perhaps the Court, to notify him of his client’s location, it is rejected.

Mr. Berkman also mistakenly affirms that “[a]t no time was a 90 day notice served on this case.” To the contrary, on March 25, 2004, I served Mr. Berkman by certified mail, return receipt requested, with a 90-day notice to file a note of issue and certificate of readiness, which of course led to the earlier motion practice referenced above.

Mr. Berkman admits that deadlines were not complied with, but that the claim was not abandoned, referencing the pending Supreme Court matter in Wyoming County. Lest there be any doubt, whatever activity there may have been in the Supreme Court action has no bearing on the Court of Claims action. It is even more disconcerting that all the depositions in Supreme Court have been completed, yet the State of New York was not included, nor had any Court of Claims depositions been scheduled.

It appears that after the February 10, 2005 scheduling order, counsel did absolutely nothing more than send a letter on February 25, 2005 to the Defendant. And with whatever fervor Mr. Berkman pursued the Supreme Court matter, it appears he abandoned pursuit of the instant claim until more than one year later on March 2, 2006, when the instant motion was served by mail.

The Defendant defers to the Court, noting only that it has not stipulated to any extensions of time, and suggesting that Claimant should be required to make a showing of merit. In reply, to establish the merit of his claim, Claimant supplies a copy of his affidavit in the Supreme Court matter that apparently was sufficient to raise an issue of fact requiring denial of summary judgment.

Counsel notes that his client would be highly prejudiced if this case were to be dismissed, and that his default was in no way wilful or contumacious. Well, clearly a dismissal would be prejudicial, especially if Claimant were to be able to establish culpability on the part of the State of New York.

But I do not wish to dwell on Claimant’s behavior. He is incarcerated and has relied upon counsel to prosecute this claim.

It is Mr. Berkman whose actions are unbelievably and indefensibly deficient. One might have thought that he would have taken to heart my admonitions, to wit, that he “demonstrated a blatant disregard... made disingenuous assertions... generally demonstrated a degree of contempt for the Court authority [and that his] future conduct and his compliance with future orders will guide any reconsideration” of the imposition of sanctions.

In addition to forcing me to have to rule upon this motion and the concomitant waste of judicial resources, and mindful of counsel’s ongoing contemptuousness and cavalier lack of respect of this Court, I am fining attorney Charles Berkman Seven Hundred Fifty Dollars ($750.00), and directing him to pay this fine personally. Moreover, counsel has forfeited the courtesy, generally extended to out-of-town counsel, to appear at conferences by telephone, and henceforth personal appearances are required.

Based on the foregoing, it is therefore

ORDERED, that Attorney Charles Berkman shall, within 30 days of service upon him of a file-stamped copy of this decision and order, deliver to the Chief Clerk of the Court of Claims a check in the sum of Seven Hundred Fifty Dollars ($750.00) payable to the Lawyers’ Fund for Client Protection of the State of New York (see, State Finance Law §97-t), said sum to be paid by Mr. Berkman personally and not to be charged to or reimbursed by Claimant under any circumstances, and it is further

ORDERED, that in the event Mr. Berkman does not timely and fully comply with the payment requirements above, then the motion herein will be considered denied with prejudice, and it is further

ORDERED, that if there is timely and full compliance with payment requirements, the motion herein will be deemed granted, and a preliminary conference will be held on June 21, 2006, at 10:00 a.m. at the Court of Claims in Rochester, at which time a new scheduling order will be issued.

The Chief Clerk is directed to serve this decision and order upon the parties.

April 27, 2006
Rochester, New York

Judge of the Court of Claims

  1. [1]Notably, neither the date nor manner of such purported “assurances” is provided in the Berkman affirmation.
  2. [2]In the interest of clarity, I note that a summary judgment motion by two of the Supreme Court defendants was denied, not quite the same as the implication that such motion was decided in Claimant’s favor.