Council v. Duic

Appellate Division of the Supreme Court of New York

Council v. Duic

180 A.D.2d 583

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 27, 1992

StatusPublished

Cited by3 cases

This text of 180 A.D.2d 583 (Council v. Duic) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Council v. Duic, 180 A.D.2d 583 (N.Y. Ct. App. 1992).

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Opinion

Order of the Supreme Court, New York County (Robert White, J.), entered March 12, 1991, which, inter alia, imposed sanctions of $10,000 upon plaintiff for frivolous conduct, is unanimously reversed to the extent appealed from, on the law, the facts, and in the exercise of discretion, and the sanctions vacated, without costs or disbursements. Appeal from the order of the same court and Justice, entered Febru[584]*584ary 7, 1991, denying, inter alia, plaintiffs motion to renew and reargue, is dismissed, as academic, in view of the above disposition, without costs or disbursements.

This action for false arrest and assault was commenced in August 1987. Jury selection began October 31, 1990, and was completed November 5, 1990. That same day, defense counsel learned from plaintiffs employment records, which had been subpoenaed, that plaintiff had been in an automobile accident and subpoenaed the records of that accident from Bellevue Hospital. Since these records would not be available until Tuesday, November 13, the matter was adjourned until the morning of that day.

When informed that the plaintiffs doctor would be unable to testify until November 20, the trial part sent the matter back to the IAS part. Plaintiffs attorney, who had never tried a jury case before, represented that with eight witnesses to be examined before the doctor, he believed the case would "go through Monday or Tuesday” (November 19-20). The court, however, accused plaintiffs counsel of deciding on additional witnesses just to "cover” himself for the purpose of the record, and after finding counsel was "doing nothing but stalling and holding up the Court”, the IAS Judge imposed a sanction of $10,000 payable to the defendant Authority.

We find that, upon the record herein, the imposition of the sanctions against plaintiffs counsel was an abuse of discretion. The actions of counsel were not demonstrated to be intentional or in bad faith, especially when viewed in the light of his inexperience, and we therefore vacate the sanctions imposed. Concur—Carro, J. P., Milonas, Rosenberger and Asch, JJ.

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Order of the Supreme Court, New York County (Robert White, J.), entered March 12, 1991, which, inter alia, imposed sanctions of $10,000 upon plaintiff for frivolous conduct, is unanimously reversed to the extent appealed from, on the law, the facts, and in the exercise of discretion, and the sanctions vacated, without costs or disbursements. Appeal from the order of the same court and Justice, entered Febru[584]*584ary 7, 1991, denying, inter alia, plaintiffs motion to renew and reargue, is dismissed, as academic, in view of the above disposition, without costs or disbursements.

This action for false arrest and assault was commenced in August 1987. Jury selection began October 31, 1990, and was completed November 5, 1990. That same day, defense counsel learned from plaintiffs employment records, which had been subpoenaed, that plaintiff had been in an automobile accident and subpoenaed the records of that accident from Bellevue Hospital. Since these records would not be available until Tuesday, November 13, the matter was adjourned until the morning of that day.

When informed that the plaintiffs doctor would be unable to testify until November 20, the trial part sent the matter back to the IAS part. Plaintiffs attorney, who had never tried a jury case before, represented that with eight witnesses to be examined before the doctor, he believed the case would "go through Monday or Tuesday” (November 19-20). The court, however, accused plaintiffs counsel of deciding on additional witnesses just to "cover” himself for the purpose of the record, and after finding counsel was "doing nothing but stalling and holding up the Court”, the IAS Judge imposed a sanction of $10,000 payable to the defendant Authority.

We find that, upon the record herein, the imposition of the sanctions against plaintiffs counsel was an abuse of discretion. The actions of counsel were not demonstrated to be intentional or in bad faith, especially when viewed in the light of his inexperience, and we therefore vacate the sanctions imposed. Concur—Carro, J. P., Milonas, Rosenberger and Asch, JJ.

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Bluebook (online)

180 A.D.2d 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/council-v-duic-nyappdiv-1992.

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