People v. I.L.

• Decision Date: 10 May 1989
• Citation: 542 N.Y.S.2d 125,143 Misc.2d 1061
• Parties: The PEOPLE of the State of New York v. I.L., Defendant.
• Court: New York Supreme Court

Page 125

542 N.Y.S.2d 125

143 Misc.2d 1061

The PEOPLE of the State of New York v. I.L., Defendant.

Supreme Court, Bronx County Part 47.

May 10, 1989.

Paul Gentile, Dist. Atty., Bronx County by Michael R. Gordon, Asst. Dist. Atty., for the People.

Robert Gardner, Dudley & Gardner, Bronx, for defendant.

RICHARD LEE PRICE, Justice:

Motion by the People seeking leave to renew and reargue the prior order of this court dated June 9, 1988, is granted and upon reargument and reconsideration the motion is disposed of as follows:

This motion was timely made by the People on the 7th of July, 1988. It was originally returnable on July 20th, 1988, a date on which this court was in recess for the Judicial Seminars. The motion therefore was not submitted to the court nor was it placed on any Part's Calendar. Thereafter the motion languished until the People finally applied to have it calendared and it was finally calendared and submitted for determination shortly prior to the end of the year.

The Facts

The criminal action underlying this motion was originally set down for a hearing on June 2, 1988 (Transcript pg. 6). On that date the People failed to produce their police witnesses; defense counsel, the unincarcerated defendant and an independent witness did appear and were ready to proceed. The matter was then adjourned to June 6, 1988 upon the express agreement that the prosecutor's office would notify defendant's counsel if the witnesses could not appear (Transcript pg. 7). Thereafter, on June 2nd, Assistant District Attorney Mathew McPherson called defendant's counsel and informed him that his witnesses would be present and ready to proceed on Monday, June 6 (Transcript pg. 10).

On June 6, the defendant, his attorney and his witness again appeared in this court. The People's police witnesses again failed to appear. The Assistant District Attorney then present represented that he had "notified" the officers to be present in the court and had "confirmed" that notification on the prior Friday (June 3, 1988). ¹

Thereafter, this court by order dated June 9, 1988 (hereinafter the prior order) directed the People to pay defense counsel's fees for the time spent in this court on June 2 and June 6, 1988 and to reimburse the defendant's witness for any work-related losses he had suffered due to his having appeared in court on June 2 and June 6, 1988 ². It is this order which is the subject of this motion.

This court had, in its prior order, identified two bases for directing the People to reimburse defense counsel and his witness for their monetary losses due to their reliance on the affirmative assurances of the prosecutor that his witnesses would appear and the hearing would proceed.

The first basis for the prior order was the Rules of the Part. The People contend that since the Rules of the Part did not specifically require the production of witnesses and warn of the consequences of the failure to produce them, this court cannot now make the order it did.

It is clear that these rules were meant as a flexible approach to cover most conceivable situations. No court is so wise that it can anticipate every possible contingency. The rules therefore were made flexible and general so as to give fair notice of what is required and of the consequences for failure to comply therewith ³. In the opinion of this court, the People were adequately forewarned by the Rules of this Part, which were previously provided to both sides, that an order of this nature might emanate under these circumstances.

They further contend that the rules of this part may only restate the Uniform Rules for Courts Exercising Criminal Jurisdiction Found in 22 NYCRR § 200.1 et seq. and, by implication, no individual assignment Part may embellish upon those rules. (Peoples affirmation page 7). Such contention overlooks the fact that the rules of this part expand upon the Uniform Rules and were not intended to be a part thereof. The rules of this part are tailored to the litigants who practice before it and are designed to encourage efficiency and accountability. Nothing contained in the Uniform Rules prohibit the individual parts from promulgating additional rules of practice as long as those rules do not violate or contradict any provision of the Uniform Rules or other rules governing practice. The additional rules of this part are written and distributed to all attorneys on the occasion of their first appearance in the part.

The case cited by the People (In re Holtzman v. Goldman, 71 N.Y.2d 564, 528 N.Y.S.2d 21, 523 N.E.2d 297 [1988] is inapposite. In that instance the action by the court effectively ended an entire matter before it. It thus took upon itself a determination which is usually left to the discretion of the prosecutor (supra at 574, 575, 528 N.Y.S.2d 21, 523 N.E.2d 297). In contrast here the court is merely regulating how attorneys will practice before this particular court and how best to insure that no party suffers due to acts of the attorneys, who are officers of the court.

The People's next argument, that since they were not specifically directed to produce their witnesses, they are not responsible for any consequential damage due to their failure to appear is disingenuous, to say the least. In this instance there was no need to order such production since the People had already stated that they would have the witnesses in court for the hearing. Indeed, any order specifically directing the People to produce their witnesses would have been superfluous and unnecessary. That this is so is shown by the Assistant District Attorney in this matter having made a phone call to the defendant's attorney assuring him that the witnesses would in fact be present and ready to proceed.

The second basis for ordering the prosecutor's office to recompense defense counsel and his witness is the inherent powers of the court. The People contend in these papers that this court misapplied the law as set forth by the Court of Appeals in A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 511 N.Y.S.2d 216, 503 N.E.2d 681 [1986] and its companion case LTown Limited Partnership v. Sire Plan Inc., 69 N.Y.2d 670, 511 N.Y.S.2d 840, 503 N.E.2d 1377 [1986]. These cases, they contend, stand for the proposition that no attorney's fees can be awarded absent a statute or Court Rule (promulgated by the Court of Appeals and/or Appellate Division) authorizing such awards. This court must disagree.

Lezak and LTown (supra) are in my opinion but the latest Court of Appeals restatement of the so-called American Rule under which each party bears the burden of its own attorney's fees. A careful reading of Lezak reveals that it takes its major support from City of Buffalo v. Clement Co., 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895 [1971] which in turn was based in a large part, on In re Low, et al., 208 N.Y. 25, 101 N.E. 706 [1913] and Matter of City of Brooklyn, 148 N.Y. 107, 42 N.E. 413 [1895]. The significance of these cases is that the attorneys fees sought were for the entire matter then before the court. In contrast, what this court is directing here is merely reimbursement for certain losses and expenditures incurred solely by the proper reliance of one of the parties upon the representations and promises of the other. This court has been offended and outraged by the abusive and discourteous conduct often exhibited by attorneys who behave as though they are not accountable to the Court, the adversary or its witnesses. Thus, Lezak and that line of cases are inapposite to this matter since they are addressing a factual situation which is very different from that before this court.

I note that certain Second Department cases (Foxfire Enterprises v. Enterprise Holding, 140 A.D.2d 581, 528 N.Y.S.2d 645 [1988]; Guma v. Guma, 132 A.D.2d 645, 518 N.Y.S.2d 19 [1987]; Claybourne v. City of New York, 128 A.D.2d 667, 513 N.Y.S.2d 165 [1987], although not cited by the People, appear to support the position of the District Attorney, in that they appear to hold that even limited awards of attorneys fees awarded strictly to recompense parties for discrete instances of egregious behaviour by attorneys and/or parties are proscribed by Lezak and LTown (supra). However, 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 moneys. Therefore this court does not feel that the Second Department cases are controlling in this instance.

There does not appear to be a question but that the court does have inherent powers, the limits of which are undefined but which appear to include the power to redress situations such as the one here (see, Gabrelian v. Gabrelian, 108 A.D.2d 445, 489 N.Y.S.2d 914 [2nd Dept., 1985], appeal dismissed 66 N.Y.2d 741, 497 N.Y.S.2d 365, 488 N.E.2d 111 [1985]; also see, Narins, supra. Cf. Lezak, supra 69 N.Y.2d at 6, 511 N.Y.S.2d 216, 503 N.E.2d 681). Inextricably intertwined with the doctrine of the inherent power of the court is, in this court's opinion, the role and powers of our court as a Common Law Court (New York State Constitution Art. VI § 6) with its unquestioned power to fill in lacunae in the law, in the proper circumstances.

While the legislature and the Chief Judge do have the power to regulate Court practices (N.Y.Constitution Art. VI § 30; Judiciary Law § 211), there is no prohibition on the exercise of that power by this court absent a Court Rule or statute to the contrary. Similarly, the Uniform Rules; although not applicable in this instance, now expressly authorize the imposition of monetary sanctions against any party in a criminal...