McLoughlin v. Henke

• Decision Date: 11 February 1986
• Citation: McLoughlin v. Henke, 499 N.Y.S.2d 332, 130 Misc.2d 1091 (N.Y. Sup. Ct. 1986)
• Parties: Lawrence McLOUGHLIN, Plaintiff, v. Hans H.J. HENKE and Gertrude Henke, Defendants.
• Court: New York Supreme Court

Page 332

499 N.Y.S.2d 332

130 Misc.2d 1091

Lawrence McLOUGHLIN, Plaintiff, v. Hans H.J. HENKE and Gertrude Henke, Defendants.

Supreme Court, Queens County Part 2.

Feb. 11, 1986.

Morris J. Eisen, New York City, for plaintiff.

Diamond, Rutman & Costello, (Bernard W. Liling, New York City, of counsel), for defendant.

MEMORANDUM

ARTHUR W. LONSCHEIN, Justice.

The Individual Assignment System arrived in the courts of the State of New York on January 6th, 1986. Its approach to calendar control and to increase efficiency in the disposition of cases rests on Section 202.3(a) of the Uniform Rules of the New York State Trial Courts: "There shall be established for all civil actions and proceedings heard in the Supreme Court and County Court, an Individual Assignment System which provides for the continuous supervision of each action and proceeding by a single judge." With these rules, there was given to each trial judge a nucleus of cases in various stages of pre-trial postures, imposing on the judge the obligation of case management with the end in view of disposing of his own cases with the maximum of efficiency. Indeed, a perusal of the rules bespeak of their objective; to expedite dispositions in matters before the court, by holding preliminary conferences where matters such as simplifying and limiting factual and legal issues are explored [Section 202.12(d)(1) ], the establishment of a timetable to complete discovery, [Section 202.12(d)(2) ] and settlement at an early stage of the proceeding is to be discussed [Section 202.12(d)(4) ]. In order that the objectives of the preliminary conference be attained, the Chief Administrative Judge of the Courts has specifically authorized the judges of the trial courts to impose "costs or such other sanctions as are authorized by law" against a party for failing to comply with the order resulting from the preliminary conference on the making of frivolous motions. [Section 202.12(g) ] It appears, then, the rules recognize the inherent power of the courts to impose not only costs which are authorized by statute [CPLR Articles 81 and 82] but to impose sanctions on lawyers and parties for violation of the orders of the court or for impeding the orderly disposition of a court's calendar.

The issue presented in this Individual Assignment matter is the extent of the court's power to impose sanctions upon trial counsel for conduct which, while falling short of contempt, is dilatory and improper, and which wastes the time of the court and of opposing counsel, and frustrates the objectives of the Individual Assignment System. I conclude that the court has the inherent power to levy such sanctions, and that such sanctions must be imposed in a proper case, if the fundamental goals of the Individual Assignment System are to be achieved.

The facts may be simply stated. Counsel in this case announced their readiness to proceed to trial, at the call of a trial calendar on January 21, 1986, and were directed to pick a jury on January 27th. Voir dire occupied a full day. Late in the afternoon, counsel reported to me that a jury had been selected, and again announced that they were ready to proceed to trial.

The following morning, counsel for the plaintiff announced that the plaintiff was, in fact, unavailable, and made an application to have the jury disbanded and the trial adjourned for a number of weeks. It soon became clear that counsel had made no effort to contact his client until after the jury had been selected, and hence was unaware that the plaintiff had been injured in an automobile accident and was hospitalized. Since the client was blameless in this, I decided neither to force his counsel to trial without him nor to dismiss the complaint. Rather, I granted an adjournment, conditioned upon the payment of $250 to opposing counsel as compensati for his inconvenience and $500 to the Client's Security Fund of the State of New York.

Under prior practice, the result of counsel's failure to ascertain the true status of his case would only have been inconvenience to the opposing counsel. This case would have been one of several wherein juries were being selected, and any trial parts coming open would have been assigned one of the other cases. Thus, sanctions would have been limited to redressing the inconvenience to opposing counsel.

Under the Individual Assignment System, however, the result is different. This case had been thoroughly conferenced and found not to be amenable to settlement. It had been set down for jury selection and trial in the expectation that it would occupy my part for a full week. In reliance upon counsel's representations that this case was ready for trial, no other cases had been scheduled for the next few days. A series of telephone calls revealed that no other cases on any trial calendar could be advanced from their scheduled dates on such short notice. Thus, c...