Gordon v. Siben & Siben

• Citation: 146 Misc.2d 553,558 N.Y.S.2d 439
• Parties: Johnnie GORDON, Plaintiff-Respondent-Appellant, v. SIBEN & SIBEN, Esqs., Defendant-Appellant-Respondent, SIBEN & SIBEN, Esqs., Third-Party Plaintiff-Appellant-Respondent, v. Craig D. ROBINS, Esq., Third-Party Defendant-Respondent, and Andrew E. MacAskill, Esq., Third-Party Defendant-Respondent-Appellant.
• Decision Date: 28 March 1990
• Court: United States State Supreme Court (New York)

Page 439

558 N.Y.S.2d 439

146 Misc.2d 553

Johnnie GORDON, Plaintiff-Respondent-Appellant, v. SIBEN & SIBEN, Esqs., Defendant-Appellant-Respondent, SIBEN & SIBEN, Esqs., Third-Party Plaintiff-Appellant-Respondent, v. Craig D. ROBINS, Esq., Third-Party Defendant-Respondent, and Andrew E. MacAskill, Esq., Third-Party Defendant-Respondent-Appellant.

Supreme Court, Appellate Term Ninth and Tenth Judicial Districts.

March 28, 1990.

Siben & Siben, Bay Shore, pro se, by Richard F. Simmons, Copiague, for defendant-appellant-respondent.

Andrew E. MacAskill, pro se.

Andrew E. MacAskill, Hempstead, for Johnnie Gordon, plaintiff-respondent-appellant.

Before DiPAOLA, P.J., and STARK and COLLINS, JJ.

MEMORANDUM.

Appeals from an order of the District Court, Suffolk County (Colaneri, J.) dated December 29, 1988 denying defendant's motion for a protective order, granting that part of a cross motion for partial summary judgment finding defendant negligent and dismissing the affirmative defenses, counterclaims and third-party complaint, and that part of the cross motion denying sanctions.

Order unanimously modified by striking the provision denying the cross motion for sanctions against defendant and remanding the matter to the court below for the imposition of sanctions, and as so modified, affirmed with $10 costs to plaintiff.

Plaintiff instituted this action to recover damages resulting from the alleged malpractice of defendant law firm. The claimed negligence of defendant was its failure to timely demand a trial de novo on behalf of plaintiff following arbitration in an action wherein plaintiff was a defendant. The arbitration panel made an award against plaintiff herein who, after learning of a judgment against her, discharged defendant and retained another attorney. In this action, defendant has counterclaimed against plaintiff and brought a third-party action against two attorneys who subsequently represented her.

Plaintiff sought discovery of defendant's file involving the prior action and defendant moved for a protective order. Plaintiff and third-party defendant MacAskill cross-moved for summary judgment and sanctions against defendant. The court below denied the protective order and the request for sanctions, granted summary judgment dismissing the affirmative defenses and counterclaims, and partial summary judgment finding defendant negligent. Defendant has appealed from the denial of the protective order, as well as the dismissal of the affirmative defenses, counterclaims and third-party complaint and the granting of partial summary judgment in favor of plaintiff. Plaintiff and MacAskill cross-appeal from the denial of sanctions.

The main issue concerns the negligence of defendant. The arbitration rules (22 NYCRR part 28) mandate arbitration in civil actions where the amount sought to be recovered is $6000 or less. Following arbitration, a demand for a trial de novo may be made by any party not in default. The rules originally required the demand to be made within 30 days after the filing of the award with the appropriate court clerk and it was held that courts were without power to extend the time within which to make a demand (Chase v. Scalici, 97 A.D.2d 25, 468 N.Y.S.2d 365). Rule 28.12(a) was amended subsequent to Scalici so that the time of a party to make a demand does not start to run until the party is served with notice of filing of the award. It is the contention of defendant that it was never served with a copy of the award or notice of its filing, so that it could not have been negligent in failing to make a demand for a trial de novo.

The court below concluded that service of the notice was established by certain exhibits submitted by plaintiff. These exhibits were a copy of the award containing a check mark in the box indicating a mailing, as well as a letter from the Deputy Chief Clerk of the Court stating that the court's records show that an arbitration program card was sent to both parties. In our opinion, these unsworn documents were insufficient to establish service of the notice of filing as a matter of law. In fact, the copy of the award submitted in the papers contains a space for indicating that notice of the filing was given, but it was not filled out.

Nevertheless, we do conclude that defendant was negligent. Defendant conceded that some time in the middle of November, 1987, the attorney for the successful party in the prior action served a copy of the judgment upon it. A copy of the judgment was annexed to the motion papers and it states thereon that $2543.75 was awarded after an arbitration and that a decision had been rendered after an arbitration in favor of plaintiff (in the prior action). Inasmuch as a judgment pursuant to an...