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Wednesday, October 1, 2008

Judicial Bag of Tricks Includes Making Cases Disappear

The Nuclear Option
Judicial Reports by Jason Boog - October 1, 2008
jasonboog@judicialstudies.com

Members of the judiciary have been known to reach into their statutory bag of tricks during litigation to impose the ultimate sanction. And, poof! There goes the case. Is that right? For a litigation battle seemingly vaporized by the judicial equivalent of a mushroom cloud, the bench conference last week in Weissman v. 20 East 9th Street Corp. was downright serene. Supreme Court Justice Joan A. Madden’s quiet, efficient dispatch of the discovery issue before her on Thursday stood in stark contrast to the case’s fate last year before then-Supreme Court Justice Rolando T. Acosta. Exasperated by the plaintiff’s failure to produce a medical report, Acosta had cited a rarely invoked civil practice statute, CPLR 3126, and in one fell swoop granted the defendant’s motion to dismiss. Practitioners have a name for Acosta’s move: the nuclear option. The appellate court in this case had another name for it: reversible error.

THE CASE AT HAND

The original lawsuit began when a trustee overseeing the "supplemental needs trust" of a woman sued her co-op for alleged discrimination, initiating a protracted and ultimately unsuccessful discovery battle in 2007. Acosta grew increasingly frustrated when the plaintiff didn’t obey two orders to undergo an evaluation by a psychiatrist chosen by the defendant company. Fed up with the matter before him, the justice finally nuked it. That statute that Acosta invoked grants judges a number of powers to enforce discovery demands. Most dramatically, it allows jurists to dismiss a case if any party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed.”

In February 2008, however, the Appellate Division, First Department (where Acosta now serves), reversed the decision — ruling that Acosta had prematurely exercised the power. The unanimous decision concluded that the ultimate sanction “is appropriate only where the moving party demonstrates that the non-disclosure was willful, contumacious or due to bad faith.” Attributing the missed evaluations to the plaintiff’s “significant mental illness,” the appellate panel found that the severe pre-conditions for dismissal had not been met and ordered a new trial — shipping the case to Justice Madden’s busy Part 11 courtroom. (While the appellate decision “modified & affirmed” Acosta's ruling, Judicial Reports counts such determinations as reversals since the original dismissal was modified.) Click here to read the Reversal Report about that case. Acosta declined to comment for this article, noting that similar matters might come before him in his current role, and both sides of the case declined to be interviewed.

Under Justice Madden’s ruling last week, the tenant-plaintiff is ordered to provide, before October 8, “a medical report and comprehensive plan regarding [her] medical and psychiatric condition vis-à-vis her ability to occupy the subject apartment consistent with the health, safety and welfare of the cooperative community.” Madden’s opinion carefully dodged the original unfulfilled discovery order that caused Acosta to jettison the case — the defendant landlord’s lawyers had requested a psychological examination of the tenant by a doctor of their choosing. Madden’s decision only required the report — apparently leaving the decision up to the plaintiff of which doctor to choose.

THE NUCLEAR OPTION

Since 1999, this ultimate sanction allowed under CPLR 3126 has evolved in appellate case law. Many decisions cite a single case as the authority, Kihl v. Pfeffer. The plaintiff in that case was a passenger in a one-car accident who sued both the driver and Honda Motor Co. for damages. The plaintiff’s attorney did not completely answer 92 interrogatories posed by Honda during discovery, and the company successfully moved to dismiss the case on a CPLR 3126 motion. The Appellate Division and Court of Appeals upheld the trial court’s dismissal, much to the dismay of Attorney Thomas F. Gleason, a name partner at the Albany firm, Gleason, Dunn, Walsh & O'Shea. (He handled the plaintiff’s appeal, but was not the attorney who earned the original 3126 dismissal.)

During the Court of Appeals battle, Gleason tried to prove that the other attorney had made a good faith effort to comply, but the court ultimately decided that the original lawyer did not meet a basic standard of compliance: “If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity . . . we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully,” wrote Chief Judge Judith S. Kaye in an unanimous opinion. “To my frustration, [CPLR 3126] was the issue . . . on the appeal,” said Gleason, lamenting that the case’s fame derives from application of an obscure statute, rather than the underlying merits. To this day, Kihl v. Pheffer is cited in many CPLR 3126 dismissals, and it has become the case law foundation for resorting to the nuclear option. A basic LexisNexis search for the case turned up 128 different opinions that referenced the case. “Good judges do a good job of managing attorneys without resorting extraordinary measures,” said Gleason, discussing the use of the statute. “I think skilled judges are able to make attorneys toe the line. Obviously, sometimes sanctions are appropriate. They should be resorted to with care.”

TRACKING NUCLEAR ATTACKS

In fact, application of the statute’s ultimate sanction is quite rare. While it is impossible to measure exactly how many times the statute has been used in unpublished cases, reviews of it can be tracked at the appellate level. Statewide, Judicial Reports counted 40 appeals of such dismissals during the last five years. Of those, the judges were affirmed 23 times and reversed 17 times. Click here to see the eleven dismissals that were reversed in New York City during the past five years. While there is no foolproof method for tracking the number of times the statute was used, a number of experts agreed it was rare. In the view of frustrated plaintiff’s attorney Gleason, that number implied the existence of a few judges who had lost control of courtroom situations and then resorted to extreme measures to regain control.

One civil practice expert, however, thought that those numbers actually revealed precisely the opposite dynamic. “I think over the last few years, judges have been getting fed up with attorneys who are playing games. What you’d find in the past, most of the time judges weren’t using the power,” explained Burton N. Lipshie, a managing attorney at Stroock & Stroock & Lavan who teaches New York practice at Benjamin N. Cardozo School of Law. “Now, when you have much more of a push to get cases resolved more expeditiously, I think judges have been sensitized to lawyers who delay forever,” he concluded. During the five-year span, the statute was appealed 20 times in the five boroughs: nine times in Kings County, six times in Queens, four times in Manhattan, and once in the Bronx. Of those, only nine dismissals were ultimately upheld in the appellate court.

ACOSTA’S NUCLEAR RECORD

In Manhattan, appeals of Acosta dismissals accounted for two of the four, both heard in 2008. His use of the statute was upheld in one appeal, and dismissed in the other. In February, the court overturned his dismissal ruling in Weissman, but Acosta made legal headlines in August when the Appellate Division barely upheld his 3126 dismissal in Arts4all, Ltd. v. Hancock. In that 3-2 affirmation, the Appellate Division upheld Justice’s Acosta’s decision to dismiss a lawsuit that had begun in May 2003 but struggled through discovery until 2006 when he nuked the case.

Attorneys from both sides of that case did not respond to calls for comment. But First Department Justice James M. McGuire wrote a spirited dissent that faulted Acosta for not providing ample warning during the case’s long discovery process. Calling Acosta’s frustration “understandable,” McGuire nevertheless concluded, “there had been no suggestion from the court that the parties were risking a possible dismissal of their pleadings on account of their conduct.” The rule exposes the tightrope judges sometimes walk between delivering a fair, comprehensive trial, on the one hand and keeping a crowded docket moving, on the other. Acosta is no stranger to the difficult schedules and difficult clients in civil practice. During six years as a staff attorney for the Brooklyn Legal Aid Society, he reached the rank of Director of Government Civil Practice in that organization before winning a spot on the Civil Court. Before ascending to the Appellate Division, Acosta disposed of 481 cases in 2006 — trouncing the New York City average of 400 cases per year in the Individual Assignment System (IAS).

In 1986, the Civil Term adopted this new system insuring that every single case had its own judge, rather than assigning individual motions to different judges. One expert thought that the shift from a segmented court system to an IAS model forced judges, like Acosta, to clamp down on unruly lawyers and clients. “In the days before IAS ... the system was a much more lawyer-driven system,” said Lipshie, the Stroock managing partner. “You’d appear before a different judge every time you made a motion. Judges were less likely to punish, they didn’t know if it had been a pattern. Now the judges know when the system is being gamed and they are under time-pressures that they didn’t have before,” he concluded. Statistically, Acosta had a 43.6 percent reversal rate on the Supreme Court bench at the beginning of the year, exceeding the First Department Civil Term’s average of 37 percent between 2000 and 2005. He worked 208 days in 2006, dropping below the citywide average of 211 for judge days.  CLICK HERE FOR Judicial Reports Website

31 comments:

Anonymous said...

surpised the judge was reversed. this is but one of the "many" tricks in the judicial bag of tricks. of course trial judges may often say, "you can always appeal" even though this process can be fixed and rigged as well. keep up the good work of exposing problems in the state judicial system.

Anonymous said...

Judge John K. McGuirk from the Orange County Supreme COurt in Goshen. Knows very well about these type of deals. It appears he is not only a member but he is also a client. Hey McGuirk how long do you think you can hide behind your robe to hide the criminal activities of your special law guardians and attorneys? Maybe somebody can get ex Judge Horrowitz to talk about the deals McGuirk has made in chambers in divorce and custody cases. McGuirk racism is a crime and will get you off the bench, on top of your other "deals"

Anonymous said...

McGuirk is not the only one doing deals in chambers in the Orange County Court in Goshen. There are various rats dressed in black engaging in child endangerment such as cases of pedophilia and child sexual abuse. CPS, the DA's Office and the police refused to take action and claim that these acts of sexual abuse is not illegal. Clearly the News paper in the county won't cover the stories of corruption in the court despite their knowledge, familial pedophilia and cases where children are been sexually exploited and judges are making cases dissapear or just won't register any motions.

Anonymous said...

Dishonest judges are up north too, i.e. Plumadore and Caruso. The news media would not want the people to know the courts were totally corrupt. Hear no evil, see no evil and don't report any evil. Let the people believe the courts would fix any problems. The scum line goes from the courts to the media. Didn't the people learn in school and on TV that the right attorney could easily correct any injustice. The media doesn't want to pop any legal delusional bubbles floating in the minds of the people.

Anonymous said...

Plumadore is a creature of arrogance that his led him to belive that his war stint, has made him another hero like... McCain. Two old has beens, believing that they are still respected..if only a lot of people were alive to remember!
He is consistant in reminding people often that he has a constitutional right to destroy innocent single mother's careers, reputations and financial assests ..because the military was graced with his service in Viet Nam!
He also has family in the military ...so it looks like a new crop of Plumadore abusers is in the making for future females!
I often wondered how a Mrs Plumadore would handle conduct displayed by her nasty, corrupt and disgusting husband...maybe she could write and describe the scenario that would put her there.... as a victim!
Plumadore also refuses to submit any appropriate requests for discovery, stalling for years....and these requests were made by a federal court of law.. imagine how ignorant and illegal that is, as well as in violation of the time element set forth by a federal judge...hopefully worthy of future repercussions... counting on some excellent luck!
Don't know what Caruso you are speaking about...but do know one such person..could it be him...what is the first name and what did he do...would love to know!
Yes... upstate NY is infiltrated with the Saranac Lake snake...wish he would retire or go to prison, so we could judge if this hero is as much of a man as as he flaunts himself as he does, IN THE the OFFICE OF CORRUPT ADMINISTRATION!
Would love to meet the beast of the Saranac Sea in person, but he has shown himself as a coward and facing his lies would be destroy any heroic feelings he is in mentality...waiting for you..though!

Anonymous said...

Above should be...he has in his mentality..so sorry..Plumadore as a person , place and thing just sickens me!

Anonymous said...

Office of the court administration keeps records of how many cases a judge heard, how many were dismised
and how many were overturned. Ofiice of the court Administration denies that they keep such detailed records.
I was told this from more than one source that knows them well.
When Judges do not want to bother trying to settle a case they just throw it out. It saves them work and time. If they leave the case open it will make the court have to do more work. Appeals are difficult and expensive.
IF JUDGES want to move up in the court system they have to either settle cases or dismiss them.
If the judge wants to stay a judge pollitcaly he has to get rid of cases. They use the excuse that
that it shows job performance.
It is safer for a judge to dismiss cases by ruling against the party with less money. This way they can not afford the appeal.
Start calling your Office of court administration and ask them for records on judges.
I think they are being paid by the state but they act like they work for the judges.

Anonymous said...

OCA does keep very accurate records of all the judges work...criminal, civil, small and commericial claims etc. I know, because I am a clerk of the court, and I track and produce those reports for several years, and am compelled by OCA to submit them weekly and monthly!
These reports exist in massive numbers and are used for state and federal stats!
Judges do dismiss and remove cases quite often from their calendars, because case decisions are appealed from theses many unlearned judges of the law often...because they are unbelievably mistake ridden, and are easily overturned on appeal!
Political maneuvering through numbers, is one method OCA and politicians use to tout their candidate, but lately OCA is just assigning judges to courts, using the ACTING TITLE, and negating the ability of the taxpayer to vote for their independent judge!
So...if you are demanding ( which you should and must do) of OCA the records of judicial performance...please insert the question, as to why you can no longer vote for judges, in many of the vacancies...due to this ACTING process they are using!? If you need further explanation of that process..just ask me!
If OCA BS'S you, write to every agency and lawmaker you can think of in America...we need an intensive investigation INTO this NY STATE COURT SYSTEM!

Anonymous said...

Vito Caruso replaced Plumadore when he moved up. Vito is running for reelection. The only thing following a termite in rotten wood is another termite. They destroy the structure from within.

Anonymous said...

Question for the clerk of the court with the OCA knowledge: What is your understanding of the process OCA goes thru in making these "Acting" Appointments, elevating County Judges to "Acting Supreme" and the like? Answer the question from the perspective of the politics involved; is it a call from the Appointments Office in the Chamber in Albany that is made? a fellow Judge trying to get a buddy into the Acting gig? What about the Review process at OCA? What if the Judge has had multiple CJC Complaints filed? does this impact the "Acting" designation? there are many in upstate very curious about this part of the system, another part which needs to be cleansed and reformed.

Anonymous said...

hmmm.. "Acting v. Due Process".. I wonder...

Law in it's regular course of administration through courts of justice is due process. Leeper vs. Texas, 139, U.S. 462, II SUP CT. 577, 35 L ED 225.

Anonymous said...

Only an inspection of the record of the case showing that the judge was without jurisdiction or violated a person’s due process rights, or where fraud was involved in the attempted procurement of jurisdiction, is sufficient for an order to be void
Tamimi, v. Tamimi Supreme Court of New York, Appellate Division, Second Department 38 A.D.2d 197; 328 N.Y.S.2d 477; 1972 N.Y. App
13.

Anonymous said...

The ACTING APPOINTMENTS are definitely political...and generally connected to the administrative and chief judges of all courts!
I have yet to see one ACTING JUDGE who did not know either!
Most ACTING judicial positions, stem from the lower court judges being appointed to higher court positions and then the lower court jobs are filled with the politically connected judges who are lawyers from the TOWN justice courts...and it goes complete from there!
I don't believe that any criteria...other than the political connection to the above stated, is needed!
If no conviction of misconduct or disciplinary proceeding exists or are proven....the person will be elevated!
This judicial raise process is gatitude and greed among friends..period!
The public would be shocked, at the number of judges who have this status and still remain in the same job they got elected for at a lower grade or position, at the same court.
They then are afforded new permission to remain for many more years than what they got elected for!
This is really OCA'S brass, circumventing the lack of a judicial raise and term limits!
If OCA ever got a raise, the job elevation would still remain!
What I stated is the biggest scam on taxpayers and those ignorant of the judicial system....OCA never quits with multiple deceptions in every catergory they can corrupt!
Aren't you mad that you can't vote for your judicial representative in the court system, that represents you in most facets of your personal and professional life, and is also a constitutional right?
Here is you chance to address the OFFICE OF COURT ADMINISTRATION!
Answers are needed and they must be asked by the public ,en masse.
Access the court's website, through.... the ny state office of court administration.... and click... contact us... on the left side of the homepage...and write whatever comes to you mind and especially this subject.. and don't mind if you cannot articulate well...just make the point!
Hope everyone is interested enough to at least express some outrage!

Anonymous said...

To anonymous 2:27,
Your comments indicate that you are not a litigant, particularly a litigant in the 2nd Dept. No jurisdiction, fraud in procuring jurisdiction, violation of every single law and court rule about jurisdiction, is no problem in the 2nd Dept.
There are two sets of rules. One for attorneys and another for litigants who object to their unethical, improper and illegal games. It doesn't make a bit of difference what you say or what you show them, judges are going to do whatever they want to. They have no ethical or moral problem scr*wing anyone out of anything.
I was naive and thought my children and I would be protected. Not a chance.

Anonymous said...

Acting Supreme Court Justices are illegal and unconstitutional. These are supposed to be only temporary. Temporary means under a year not indefinite. The OCA seems to think that if they keep renewing for a year at a time, it makes it temporary. They make up their own rules a definitions as the see fit.

Anonymous said...

So they are suing the state for a salary increase to an office they weren't elected to???

Isn't that a false claim?

Anonymous said...

Anyone familiar with the paperwork that must be submitted to OCA or prepared by OCA as part of the "Acting" designation? what does it say about judicial or attorney conduct complaints even if no discipline is isssued? what does the rest say?

Anonymous said...

Technically they are suing for a raise for the job they were elected to, but if they are upgraded temporarily to higher positions and that title receives a legal raise..they are entitled to that compensation, as they are legally assigned to that title!
It is all worked out to scam the public and benefit the judiciary..probably concocted by OCA'S legal office...who do nothing but think of ways to screw the legally stupid public taxpayer and OCA employees with hopes of impressing the judiciary...all of whom they aspire to become!

Anonymous said...

"they are entitled to that compensation, as they are legally assigned to that title!"

Are the appointments truly lawful??

and for how long???

Anonymous said...

The judge that decided the raise, was a "certificated" judge. He was past age 70 and mandatory retirement. They are supposed to be certified both physically and mentally.
Many of these "certificated" judges seem to get a free pass on these requirements. I had one of these "certificated" judges, who had terminal cancer, and was "recertified" two months before they died, and while they were in the hospital. The OCA refused to confirm medical certification.
I don't know how many others also have serious and terminal illnesses.
The guy who made the ruling has absolutely nothing to lose and everything to gain. Can you say, "conflict of interest"?

Anonymous said...

re: salaries for Acting judged;
Salaries are set by the legislature. If the legislature has not set a salary for the "acting" position, should that position get the higher rate than they were elected for?

Anonymous said...

to the above...

An excellent question!!

Anonymous said...

Unfortunately, the word ACTING in these judicial titles is just a formality, and silently vanishes from the actuality of the salary grade when needed, at the time these judges would be rewarded with this new salary, from there concocted elevated positions!
The raises are granted to these ACTING judges, because these judicial hacks are ...allegedly doing the work commensurate with that title and job!
Trust me..the scam has been well planned and executed, so the ability to void the process would be almost impossible...unless massive numbers of "taxpayers" in NY STATE went beserk!

Anonymous said...

Interesting concept. If your boss makes you do his work, you get his pay? Why didn't I know about this earlier?
Is this in the law somewhere? Or is this just another, "I can do whatever I want because I make the rules"?

Anonymous said...

Taxpayers...

Or.. a high dollar decision rendered by an acting judge... that needs revisiting...

Or.. a wrongful conviction... made under the same circumstances..

Or property wrongfully transferred... etc...

The potential for calamity... would appear to be enormous....

Anonymous said...

Don't forget to mention Andrew Bivona and Debra Kiediasch judges from the Orange County Court in Goshem also endagering the welfare of minors. Andrew Bivona is up for reelection and nobody running against him. There is a bank in Orange County where is believe the money is been moved by one special crook attorney who the Grievance Committee has refused to take action against despite numerous reports of misconduct and criminal activities. I wonder if someone within is been paid off out of this bank, is known this crook is working together with someone with direct connections to the AG's Office.

Anonymous said...

Judge John K. McGuirk from the Goshen Supreme Court in Orange County is an unethical officer of the court. John how much is your soul worth? John when you die you won't be able to use the money in hell. Would you be advocating for sexual predators there too?

Anonymous said...

Many judges have no souls... they have just derived the color for the robe, from their past existence of one!
I saw a robe, that a judge used to relieve his sexual tensions and intentions...so we now have knowledge of the existence of a soul by the robers, being used to expose the usage of the sacred garment, to unveil a very interesting and useful need.
The judicial soul, portrays itself within their gown! Just don't go looking for it..yuk!

Anonymous said...

It appears the Orange County Supreme Court in Goshen New Yuck, where judge McGuirk presides has been advice of the posting in here. The criminal retaliations are at full force against litigants. You do not have control over every court John, you just had a decision over turned in September 2, 2008 and removed from your courtroom. John the rigging of child custody, divorce cases or any other cases is illegal. How long do you think you can abuse in your discretion to break the law?

Anonymous said...

Some judges in Orange COunty are covering up racketterring, allowing extrotion, kidnapping and child sexual abuse. I wonder if they are getting a cut from the child porn?

Anonymous said...

McGuirk just had a case overturned on September 2, 2008 about child custody and divorce, he was removed from the case. For been an incompetent Officer of the Court dressed in black. Hey McGuirk people are working very hard to get you off the bench Pataki won't be able to protect you and don't count on Senator Larkin, he is another one coming down. Your "alleged" crimes won't go unpunished John here on earth or down there in hell, just remember your actions will not be forgotten especially after what you have done to children and litigants.

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