Narins v. DeBrovner
| Decision Date | 21 June 1988 |
| Citation | 529 N.Y.S.2d 316,141 A.D.2d 381 |
| Parties | , 47 Ed. Law Rep. 656 Rhoda S. NARINS, et al., Plaintiffs-Appellants, v. Charles DeBROVNER, M.D., et al., Defendants-Respondents, and Sol Zepnick, Appellant. |
| Court | New York Supreme Court — Appellate Division |
N.E. Frowley, New York City, for plaintiffs-appellants.
Before KUPFERMAN, J.P., and SULLIVAN, ASCH, KASSAL and ELLERIN, JJ.
Order of the Supreme Court, New York County (William N. Ellison, J.), entered on or about October 14, 1987, which ordered the plaintiffs' attorney to pay the sum of $3,000 to the defendant New York University Medical Center, and denied the attorney's oral application for renewal and reconsiderati thereof, unanimously reversed, on the law, the facts and in the exercise of discretion, and the imposition of costs vacated, without costs.
Plaintiff, a physician, and her husband, also a physician, sued two physicians and the defendant hospital for malpractice in that during the operation on the plaintiff for removal of an ovarian cyst, she was improperly sutured, which led to a disability and a second operation.
Prior to jury selection, counsel met with Justice Michael Dontzin for a pre-trial discussion. Justice Dontzin advised that the case against the hospital should be discontinued before the trial commenced. There is a dispute as to whether Justice Dontzin meant before jury selection or before actual trial.
Although counsel maintains that he had a basis for the action against the hospital, other than the seeming attempt to have the hospital records available for the trial, he discontinued against the hospital after jury selection and the matter was settled against the physicians.
Counsel for the hospital requested the imposition of a penalty, contending that their appearance for jury selection resulted in legal costs of some $12,000 to their client. The trial justice assessed a fine of $3,000 against counsel for the plaintiffs.
The question of the court's inherent power to impose sanctions for frivolous litigation, as discussed in Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 511 N.Y.S.2d 216, 503 N.E.2d 681, aside, CPLR 8303-a provides for such an award in a medical malpractice action commenced or continued in bad faith.
As Judge George C. Pratt of the Second Circuit Court of Appeals has noted, we are in a new "Era of Sanctions", Eastway Constr. Corp. v. City of New York, 2nd Cir., 821 F.2d 121, 124 (dissenting), see also,...
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...sanctions (see, for example, 8303-a sanctions denied in relation to discontinuance after jury selection, Narins v. DeBrovner, 141 A.D.2d 381, 529 N.Y.S.2d 316 [1st Dept.1988]. Costs may be imposed if a court determines the offer is simply too little too late, as in Patane v. Griffin, supra,......
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...the only recent First Department case found by this court that appears to speak to this matter 4 (Narins v. DeBrovner, et al., 141 A.D.2d 381, 529 N.Y.S.2d 316 [1st Dept., 1988] seems to contain language hinting that in limited circumstances it might be able to approve the award of certain ......
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