Public Adm'r of County of New York v. Cohen

• Decision Date: 30 November 1995
• Citation: 221 A.D.2d 297,634 N.Y.S.2d 106
• Parties: In re PUBLIC ADMINISTRATOR OF the COUNTY OF NEW YORK, etc., et al., Petitioners, For an Order, etc. v. Honorable Stuart C. COHEN, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 106

634 N.Y.S.2d 106

221 A.D.2d 297

In re PUBLIC ADMINISTRATOR OF the COUNTY OF NEW YORK, etc et al., Petitioners For an Order, etc. v. Honorable Stuart C. COHEN, etc., Respondent.

Supreme Court, Appellate Division First Department.

Nov. 30, 1995.

K. Heller, for petitioners.

D.M. Piergrossi, respondent.

Before SULLIVAN, J.P., and WALLACH, ASCH and TOM, JJ.

MEMORANDUM BY THE COURT.

Petition for writ of prohibition is unanimously denied, and respondent's cross motion to dismiss the proceeding is granted, without costs. Petition for writ of mandamus is unanimously denied, and respondent's cross motion to dismiss the proceeding is granted, without costs; a sanction is imposed against petitioner's attorney in the amount of $1,500, to be paid to the Lawyers' Fund for Client Protection in accordance with § 130-1.3 of the Rules of the Chief Administrator of the Courts (22 NYCRR Subpart 130-1).

The trial of this 19-year old maritime wrongful death action has most recently been stayed pending this Court's decision on appeal of the viability of punitive damage claims. In a related disposition in February 1995, this Court directed substitution for the justice who had presided over the case until that point (see, Matter of Omnium Transp. Co. v. Greenfield, 212 A.D.2d 388, 623 N.Y.S.2d 103). In an obvious effort to move the case along, respondent, the replacement justice recently assigned to the case, held a hearing on August 11 in which he sketched out a timetable for proceeding with discovery in the wake of the Appellate Division's decision on the pending punitive damage appeal. Specifically, respondent suggested that the trial commence within 75 days of service of the Appellate Division's order on appeal. In order to facilitate such a schedule, respondent called on the parties to confer with him on the first Friday after release of our decision on that appeal. In the petition for prohibition, petitioner asserts that respondent exceeded his authority in setting the 75-day timetable, ignoring, in the process, counsel's statement that the families of the claimants would need a minimum of 90 days in which to obtain visas to travel here from Brazil.

Aside from the fact that a CPLR Article 78 proceeding is wholly inappropriate where more conventional relief is otherwise available (Matter of Veloz v. Rothwax, 65 N.Y.2d 902, 493 N.Y.S.2d 452, 483 N.E.2d 127), there is no indication, from the transcript of the August 11 hearing, that respondent offered anything more than a suggested timetable to move the case forward in an expeditious manner following disposition of the punitive damage appeal now pending in this Court. As illustration of the flexibility of this timetable, we note respondent's call for a further hearing immediately after announcement of our decision on the appeal, and the fact that respondent's suggested 75-day notice was never reduced to a written order. ¹ Respondent, brought in for the very reason that the case had...