STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

JAMES T. BRADLEY; AND

DAVID CHIMERA,


Plaintiffs,

-vs- Index #H-05294


JOHN C. ALONGE, JR.,


Defendant.


 

JAMES T. BRADLEY,


Plaintiff,

-vs- Index #H-8914


BRIAN CHAPIN YORK,


Defendant.


 



SCOTT F. HUMBLE, ESQ.

for James Bladley


CHRISTOPHER E. WILKINS, ESQ.

for John Alonge, Jr.


SAPERSTON & DAY, P.C.

(Katherine B. Roach, Esq.

of Counsel) for Defendant

York


BRIAN CHAPIN YORK, ESQ.

Pro Se



DECISION and ORDER


GERACE, J.


Plaintiff moves for reargument of motions basically resolved by the February 28, 1995 Decision and Order of this Court which dismissed plaintiff's malpractice suit against defendant; and postponed a decision on sanctions, costs and attorney fees pending a report from the ethics committee of the Jamestown Bar Association. Defendant York has cross moved for sanctions, attorney fees and costs for frivolous conduct.


Plaintiff's ultimate objective is to deny defendant York attorney fees on the Bradley v. Alonge matter and to deny Saperston & Day and Mr. York sanctions, attorney fees, and costs outlined in that Decision and Order.


Plaintiff's motion for reargument is denied. Ordinarily, a motion to reargue must be made within the time in which an appeal from the original order could have been taken. LIBERTY NATIONAL BANK & TRUST CO V. BERO CONSTR. CORP., 29 AD2d 287 (4th Dept); DAVID D. SIEGEL, NEW YORK PRACTICE, Sec. 254, p.383. That was not done here.


The motion "seeks to convince the court that it was wrong and ought to change its mind." SIEGEL, supra. This Court is not convinced it was wrong.


The Court has received, and incorporates in this Decision, the report of the Ethics Committee of the Jamestown Bar Association dated July 27, 1995, copies of which will be sent to counsel along with this Decision and Order.


The underlying negligence case of James T. Bradley and David Chimera vs. John C. Alonge, Jr., Index No. HO5294 has been settled along with the action of John C. Alonge, Sr.. The carrier placed its entire policy of $20,000 on the table and the three injured parties, including Bradley, have agreed to divide that sum equally.


The Court hereby orders that the Bradley share of the settlement be held in escrow by attorney Humble until the Court resolves the questions of the amount that Mssrs. York and Humble would be entitled to for attorney fees in the Bradley case, and, until the Court resolves the issue of sanctions against Bradley, Humble and York.


Pursuant to CPLR 8303-a and Part 130-1 of the Uniform Rules, the Court hereby schedules a joint sanction hearing for the sanctions, costs and attorneys fees sought by York, Humble, and Saperston and Day on their respective motions, and, at said joint sanction, hearing, Humble, York and Bradley must show cause why sanctions, costs and attorney fees should or should not be imposed. Any and all matters filed in the office of the Chautauqua County Clerk relevant to the hearing will be marked in evidence, as will the July 27, 1995 report of the Ethics Committee of the Jamestown Bar Association.


The joint hearing is hereby scheduled for August 24, 1995, at 11:00 A.M. in Supreme Court, Chautauqua County, Mayville, New York. A prehearing conference to consider options will be held one hour before the joint hearing.


This is the Decision and Order of the Court. No further Order shall be necessary.


Dated: August 1, 1995

Mayville, New York




 

JOSEPH GERACE

Justice of Supreme Court


PROPOSED DECISION AND ORDER


In its February 28th Decision and Order, the Court said:


"While sanctions may be appropriate, and may be

considered by the Court, it is equally important,

if not critical, that counsel have a greater

appreciation and sensitivity to the level of

professionalism and ethics required of attorneys."



The Court referred the matter to the Ethics Committee to act as

mentors to assist in that effort.


Unfortunately, according to its report, the Ethics Committee

expressed concern that "the attorneys may not have gotten the full

message."


Based on what has been before the Court, sanctions are justified

here. The papers on the motion to reargue support the observation

of Ethics Committee.


Each attorney points an accusing finger at the other, and, to a

large extent, both are correct. But, even if Mr. York was wrong in

delaying transfer of the file, and even if Mr. York had been

guilty of malpractice, there is no way Mr. Humble can justify a

malpractice action in the multi-millions on the facts in this

case.


Not only was the action premature, but, the policy limit for

Bradley's claim was $10,000 and the facts indicate that Mr.

Bradley was at least comparatively negligent if not entirely

responsible for the accident.


Sanctions appear to be justified, but, the case may be closed

without such a finding if the parties agree to the following

considerations of the Court.

Bradley will receive 1/3 of 20,000, or $6,666.66 from the

settlement. York and Humble together would be entitled to 1/3 of

that amount, or $2,222.; York $740, Humble $1,482.00.


Saperston & Day seek at least $3202.00 and $211.00 in

disbursements, plus costs and fees on this motion.


Mr. York wants from $6,000 to $8,000.00. in sanctions.


If Mr. Humble agrees to pay $1,500.00 plus disbursements of

$211.00 to Saperston & Day on behalf of the carrier, and,

$1,500.00 to York, the matter may be settled without a hearing and

without a finding and award of sanctions.


The Court declines to award the full claim for attorney fees to

Mr. York. It was his attempt to represent both Bradley, the

driver, and Chimera, his passenger, the settlement of Chimara's

claim on the no fault; and his delay in arranging a transfer of

the file that precipitate the events.