___ AD3d ___, 2015 NY Slip Op 02113 [2d Dept., 2015]
It is a sad fact of life in the courts that no attorney can be in two places at once. (A sub-atomic particle can be in two places at once, but only until someone sees it. Then the wave function collapses and it’s stuck. Or so they tell me.)
Here, a week before the scheduled trial date, plaintiff’s counsel notified defendant’s counsel by fax that he was already on trial, that the trial was expected to continue for another three weeks, and requesting an adjournment. Defense counsel opposed the adjournment, and sent a letter to the trial court including the plaintiff’s fax. The court refused the adjournment in a written order, which specified that the plaintiff’s failure to appear would result in dismissal and refusing in advance to accept any affirmation of actual engagement.
On the trial date, substitute counsel appeared, with an affirmation of actual engagement, and stated that the plaintiff was not ready to proceed, whereupon the court dismissed the action.
If two judges demand an attorney’s presence for trial on the same day, the procedure set forth in the Rules of the Chief Administrative Judge is supposed to be that upon submission of affirmations of actual engagement the judges are to confer and determine which matter goes forward and which gets adjourned, according to priorities set forth in the Rule. Trials already in progress are not to be adjourned for other engagements, except for those in appellate courts. This pragmatic adjustment of schedule happens commonly where the engagements are in the same court or county, less commonly where they are not.
The exception to all this is where a trial date has been set at least two months in advance. If an attorney is actually engaged elsewhere, too bad. Substitute counsel must be obtained. (Also known as the “Unemployed Trial Attorney’s Relief Act.”) If neither original nor substitute counsel appears, “the court may impose any sanctions permitted by law.” This includes, in a proper case, striking of pleadings for failure to proceed, but that is not the only remedy.
So, in Rakowicz v Fashion Inst. of Tech ., the trial date was set more than two months in advance. On the trial date, plaintiff’s trial counsel was actually engaged in another trial, and the court adjourned this trial for three days. On the adjourned date, the other trial was still proceeding, and the court was given an affidavit of actual engagement. The trial court dismissed, citing 22 NYCRR 125.1 (g). The Second Department reversed, finding that while the court had the discretion to dismiss, that discretion was better exercised by the imposition of a monetary sanction. Plaintiff’s counsel had not engaged in a pattern of delay or willful neglect, and the three-day delay had been insufficient to allow for completion of the other trial, or to procure substitute counsel ready for immediate trial. The relevant factors of a meritorious claim, lack of intent to default or abandon, and the policy favoring disposition on the merits, all pointed to a sanction other than dismissal. The proper sanction was to direct plaintiff’s trial counsel to pay the defendant $4,000.
On the other hand, in McKenna v Connors, a medical malpractice action, the Supreme Court, Ulster County, gave all parties over a year’s notice of a definite trial date. Eleven days before the scheduled trial date, plaintiff requested an adjournment due to a prior engagement of counsel, but without supplying an affidavit of actual engagement. At a conference four days later (a week prior to trial), Supreme Court denied the request and informed counsel that the trial would proceed on the date originally set. On the day of trial, counsel for the plaintiff renewed the request for an adjournment, on the grounds of the prior engagement of counsel and a new ground, the unavailability of plaintiff’s expert. Supreme Court denied the request for an adjournment and granted the defendant’s dismissal motion. The Third Department affirmed.
The court gave little weight to the argument that a particular attorney was supposed to try the case for plaintiff, noting that another attorney was available who was fully familiar with the case. This attorney had dealt with the pleadings, attended pretrial conferences and conducted the depositions. As to the expert, the court noted that the plaintiffs had not even contacted him until the month before the scheduled day of trial and, worse, had failed to inform the court or adverse counsel of the difficulty in producing him until the day of trial. The unavailability of plaintiff’s expert was a difficulty of plaintiffs’ own making. The year’s notice of the trial date had given plaintiffs’ counsel more than sufficient time to arrange his schedule. Thus, plaintiff had no acceptable excuse for their unreadiness to proceed, and the original order was within the court’s discretion.
In the present case, it is not clear whether or not the trial date had been set more than two months prior. In any event, the Second Department found the dismissal to have been “an improvident exercise of discretion,” reversed the dismissal and sent the matter back for trial before a different Justice.
As a side issue, the plaintiff had come to this stage without having served an expert-witness statement. The Second Department directed the plaintiff to do so (although without specifying a time) and directed that the complaint was to be dismissed upon plaintiff’s failure to comply.