Silverberg v. Dillon
| Decision Date | 21 December 1979 |
| Parties | In the Matter of Sanford M. SILVERBERG and Bernard F. Hamsher, Petitioners, v. Hon. John A. DILLON, Judge of the Erie County Court and Nicholas G. Baich, Pistol Permit Administrator of Erie County, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, by Paul J. Cambria, Jr., Buffalo, for petitioners.
Robert Abrams, Atty. Gen., Albany, by Kenneth E. Graber, Asst. Atty. Gen., Buffalo, for respondents.
Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, CALLAHAN and MOULE, JJ.
Petitioners Silverberg and Hamsher are lawyers who on October 24, 1978 while in a conference room in Part 4 of the Family Court of Erie County caused a .38 caliber revolver to discharge. Hamsher suffered a superficial wound to his left index finger. The two attorneys had been discussing their guns and Hamsher asked to see Silverberg's revolver. Silverberg took his gun out unloaded it without counting the shells and handed it to Hamsher who dry fired it. When Hamsher pulled the trigger the second or third time the gun discharged.
As a result of this incident and on the same day, then Erie County Court Judge Colucci suspended each of the petitioner's pistol permits. A letter dated October 24, 1978 advising of the suspension and directing them to turn their weapons over to police authorities was sent to petitioners by the Administrator of the Pistol Permit Department of Erie County. Thereafter an informal hearing was held on November 6, 1978. Both petitioners appeared before Judge Colucci and were advised to voluntarily surrender their permits. Subsequently, both petitioners were told by the Administrator upon instructions from the Judge, that the suspensions would be continued for another six months. On May 7, 1979 the Administrator informed both petitioners that inasmuch as the six months period was about over he would hold hearings on May 11, 1979 relative to a final determination on their pistol permits. Both men appeared and were shown the Sheriff's Report of the incident which indicated that it was accidental; but, that they had used poor judgment in the handling of a weapon. Petitioners were advised by the Administrator that he would recommend to Judge Dillon, the present supervising County Court Judge (Judge Colucci retired December 31, 1978) that their permits be revoked. On May 18, 1979 petitioners were further advised that all papers in the matter had been turned over to Judge Dillon and that if they wanted to be heard they should contact him. Neither petitioner took any action and on May 31, 1979 the Administrator advised each of them in writing that his pistol permit had been cancelled by order of Judge Dillon.
On this application petitioners argue that the "law of the case" precluded Judge Dillon from acting; that they were denied due process and that the sanction imposed was harsh and excessive. None of these arguments is persuasive.
It appears that the policy of the Pistol Permit Department is to review permit suspensions at the end of the suspension period upon the totality of all the facts involved in order to determine whether to return the permit, continue the suspension or revoke and cancel the permit. The first judge orally indicated that the suspension of the permits would be for six months and may well have intended their eventual return to petitioners. However, he did not memorialize such intention either by a written order or by an oral direction to the Administrator. Thus, the present judge had before him a written suspension with no indication of duration (although concededly there was an oral indication from the Administrator that it was to be for approximately six months) and, more significant, without specification as to what was to occur upon the expiration of the suspension.
It is fundamental that one judge may not review or overrule an order of another judge of coordinate jurisdiction in the same proceeding (Matter of Wright v. County of Monroe, 45 A.D.2d 932, 357 N.Y.S.2d 330). The decision of the judge who first rules in a case binds all courts of coordinate jurisdiction as "the law of the case" (Belski v. New York Cent. R.R., 38 A.D.2d 882, 883, 329 N.Y.S.2d 345, 346), regardless of whether a formal order was entered (Collins, Inc. v. Olsker-McLain Ind., 22 A.D.2d 485, 489, 257 N.Y.S.2d 201, 204). The "law of the case" doctrine articulates the sound policy that, within various stages of the same litigation, an issue once judicially determined should end the matter so far as judges of...
To continue reading
Request your trial
-
Cherry v. Koch
...a limitation on the Court's power (Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152; Matter of Silverberg v. Dillon, 73 A.D.2d 838, 423 N.Y.S.2d 760, lv appl C/A denied 50 N.Y.2d 803, 431 N.Y.S.2d 1026, 409 N.E.2d 1004; see also People v. Leone, 44 N.Y.2d 315, 320,......
-
Rose, Matter of
...N.Y.S.2d 646, affd. 272 App.Div. 798, 71 N.Y.S.2d 926; People v. Mason, 97 Misc.2d 706, 712, 411 N.Y.S.2d 970; Matter of Silverberg v. Dillon, 73 A.D.2d 838, 839, 423 N.Y.S.2d 760; Matter of McGrath v. Gold, 36 N.Y.2d 406, 413, 369 N.Y.S.2d 62, 330 N.E.2d 35; People v. Leone, 44 N.Y.2d 315,......
-
People v. Cocilova
...The rule of law to apply in civil cases is sometimes referred to as the "law of the case doctrine". As stated in Matter of Silverberg, 73 A.D.2d 838, 839-840, 423 N.Y.S.2d 760: "It is fundamental that one Judge may not review or overrule an order of another Judge of co-ordinate jurisdiction......
-
People v. Carson
...Application of the "law of the case" doctrine is a matter of judicial discretion and is not without limitations (Matter of Silverberg v. Dillon, 73 A.D.2d 838, 423 N.Y.S.2d 838). In this case the application for the eavesdropping warrant was made ex parte. Its veracity and the claimed exist......