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