Kimple v. Auble
| Decision Date | 26 August 1976 |
| Parties | Peter KIMPLE and Marilyn Kimple, Plaintiffs-Respondents, v. William AUBLE and Suzanne Auble, Defendants-Appellants. |
| Court | New York County Court |
John LoPinto, Ithaca, for appellant William Auble.
Wiggins, Tsapis, Holmberg & Gersh, Ithaca (Dirk Galbraith, Ithaca, of counsel), for respondents Peter Kimple and Marilyn Kimple.
The basic facts appear to be as follows:
A proceeding was commenced in Town Justice Court, Town of Ulysses, Tompkins County, New York, returnable on or about September 25, 1975, before the Honorable Roger N. Rector, Town Justice. Plaintiffs appeared by said counsel and defendant appeared in person and stated to the Court that he would be represented by John LoPinto, Esq. Pursuant to § 902 of the Uniform Justice Court Act, the complaint herein was set forth by endorsement on the summons, referred to by the Trial Court Judge as 'Notice of Object of Action'. Defendant William Auble, at his appearance, stated to the Honorable Roger N. Rector, that there was no cause for action, in substance, a general denial. Pursuant to § 1301 of the Uniform Justice Court Act, Judge Rector then set October 21, 1975, at 8:00 o'clock P.M., as the trial date, being within the thirty days under the statute. A jury trial was directed.
The summary of the Trial Court Justice refers to setting a time to draw the jury panel, and advising John LoPinto, Esq. by telephone of the time and place thereof. Justice Rector also refers to later meeting and talking to said attorney on the street in Ithaca, New York, and that a written notice as a reminder was sent to both attoneys a week prior to the scheduled trial date.
On October 25, 1975, the date scheduled for trial, plaintiffs and their counsel appeared, together with Court officers and the members of the jury panel. There was no appearance by defendants in person or by counsel. Plaintiffs then moved for judgment on said default, and on October 27, 1975, a money judgment was entered in their favor, which is the subject of this appeal.
After various proceedings and motions to vacate judgment and for a new trial, including affidavits of the parties and several attorneys, finally, by order dated January 19, 1976, the Honorable Roger N. Rector, as Town Justice, vacated the default judgment of October 27, 1975, and in the exercise of the said Court's discretion, Inter alia, ordered a new trial which was stated to be upon the following condition:
'. . . that John LoPinto, Esq., attorney for defendants herein, pay to the plaintiffs costs in the sum of $100.'
Where attorneys have appeared of record in proceedings and are before the Court, that Court has the power to impose an obligation upon an attorney to pay Court costs where there is some neglect or other form of delinquency on the part of the attorney in the performance of his obligations to his client and to the Court as an officer of the Court. For example, in Siegel v. Tamarack Lodge Hotel, Inc., 46 A.D.2d 684, 360 N.Y.S.2d 78, the plaintiff's attorney was directed to pay personally to defendant $250 costs, for the alleged neglect of said attorney in handling the action, this as a condition in vacating an order of dismissal. Similarly, in Springer v. Marangio, 38 A.D.2d 852, 330 N.Y.S.2d 100, order directing default vacated upon condition that plaintiff's attorney pay $100 to defendant where several defaults had been incurred by plaintiffs. This Court has also examined several other case authorities cited by the respective parties, and finds the imposition of costs on an attorney, under delinquent circumstances, only where the attorney assessed has been an active participant as trial counsel.
The Uniform Justice Court Act replaces the Justice Court Act which covered a barrage of detail. Where no specific provision is contained in the Act, the Civil Practice Law and Rules are applicable in all civil courts of the State. (CPLR § 101) The practice commentary to the Uniform Justice Court Act (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 29A, p. 76) refers to the express invitation to the informality of practice, but the informality of the practice referred to here, as the basis for imposing costs on an attorney, is contrary to the provisions of § 320 of the CPLR, which prescribes the requirement of appearance by a defendant and the manner in which defendant may appear,--by serving an Answer or a Notice of Appearance, or by making a motion which has the effect of extending the time to answer.
'Until an attorney serves a formal notice of appearance or an...
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...1001; Matter of People v. Little, 89 Misc.2d 742, 745, 392 N.Y.S.2d 831, affd. 60 A.D.2d 797, 400 N.Y.S.2d 615; Kimple v. Auble, 87 Misc.2d 997, 386 N.Y.S.2d 967; cf. Eash v. Riggins Trucking, 3 Cir., 757 F.2d 557). The power to vacate defaults resulting from law office failure is a useful ......
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Gabrelian v. Gabrelian
...deceased and that no administrator had been appointed, thereby preventing the case from going to trial as scheduled. In Kimple v. Auble, 87 Misc.2d 997, 386 N.Y.S.2d 967, the court suggested that it had inherent authority to impose an obligation upon an attorney to pay court costs where the......
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