Upon a hearing on the amount of costs to be assessed against plaintiff's counsel James D. Reddy and whether sanctions are warranted pursuant to the Rules of the Chief Administrator Subpart 130-2 ("Subpart 130-2"), the Court makes the following determination.

The underlying trial involved an inter-family dispute concerning the transfer of ownership of a premises located in Brooklyn. Plaintiff Claudia Diamond who held sole title to the premises alleged that she was fraudulently induced by her daughter Diamond Diamante into conveying the premises creating a joint tenancy with her. On the first day of trial Claudia Diamond testified on direct. On the trial adjourn date of November 15, 2006, plaintiff Claudia Diamond and her attorney James D. Reddy failed to appear. Plaintiff Sheldon Diamond, the husband of Claudia Diamond, appeared and related that Mr. Reddy had told him the day before that he would be unable to be in court, that he had two other cases on Long Island, and to ask for an adjournment. Mr. Diamond was not given an affirmation of engagement to present to the Court by Mr. Reddy. Ms. Punzone, the pro-se defendant, alleged that no-one had contacted her. Mr. Grossman the attorney for defendant Diamond Diamonte informed the Court that he had received a call on November 14, 2006 from Mr. Reddy at about 1:00 o'clock in the afternoon that Claudia Diamond did not want to come to court. Mr. Grossman stated that he informed Mr. Reddy that he would oppose any application for an adjournment. Some two hours later Mr. Reddy called him again saying he had to go to court to file some papers and didn't want to come to Brooklyn to make an application for an adjournment. Mr. Grossman told Mr. Reddy to file an affirmation of actual engagement as he would not consent to an adjournment. Mr. Grossman also presented a letter dated November 14, 2006 addressed to the Court purportedly from Claudia [*2]Diamond stating she had directed Mr. Reddy to drop the case, which was faxed to his office by his client Diamond Diamante. Mr. Diamond claimed to know nothing about the letter.

Mr. Grossman moved to dismiss the action with prejudice. In response Mr. Diamond stated that his wife should not be punished for Mr. Reddy's actions, that hiring him had been a terrible mistake, and that his wife was sick and she should have an opportunity to have justice served. The court clerk indicated that Mr. Reddy had called the day before seeking an adjournment claiming his client Claudia Diamond was sick. In light of the policy of disposing of disputes on the merits, the Court denied the application to dismiss. However the Court found Mr. Reddy's failure to submit an affirmation of actual engagement and simply not appearing inexcusable. It adjourned the trial to January 5, 2007, but conditioned the adjournment on Mr. Reddy paying whatever costs Mr. Grossman and Ms. Punzone incurred in connection with their appearance. The amount was to be determined at a hearing on January 11, 2007, along with whether sanctions should be imposed upon Mr. Reddy pursuant to Subpart 130-2 for the failure to attend a scheduled court appearance.

On January 5, 2007 Mr. Reddy and Sheldon Diamond appeared, however Claudia Diamond again failed to appear. Mr. Reddy represented that she was again ill, and sought to present the Court with a letter from her attesting to this. In response to the Court's query as to why a doctor's note was not being submitted, Mr. Reddy stated it was his understanding that she intended to come to court, but as of that morning was not feeling well. He indicated the letter would explain this and that she was seeking an adjournment. Mr. Grossman interjected that his client saw Claudia Diamond and Sheldon Diamond enter an automobile together that morning and that his client believed Claudia Diamond was in fact somewhere around the courthouse in the automobile. He renewed his application for dismissal arguing that he had been in court in excess of thirty times on this case. At this point, Mr. Reddy claimed he had just been apprised outside in the hallway that Claudia Diamond was in a car nearby, but was feeling mentally pressured as a result of her daughter's threats not to appear in the courtroom for fear of her life. The Court admonished Mr. Reddy concerning his earlier representation that Claudia Diamond was ill and needed an adjournment, when she was in fact waiting in a car near the courthouse. The Court indicated to Mr. Reddy that Claudia Diamond was to appear in the courtroom in ten minutes if she wanted to continue the action or it would be dismissed. After a twenty-five minutes recess, the Court reconvened. Claudia Diamond had yet to appear and Sheldon Diamond was now also absent from the Courtroom. Mr. Reddy alleged that whether plaintiff Claudia Diamond was present or not, he was prepared to go forward with the trial calling other witnesses. The Court reminded him that defendants were entitled to cross-examine her, that she had voluntarily secreted herself and had failed to appear after being given ample opportunity to do so. The Court granted defendant's application and dismissed the action.

The hearing on the amount of costs and whether sanctions were appropriate commenced on January 11, 2007 and concluded on February 2, 2007. Mr. Reddy's affirmation of actual engagement for November 15, 2006 was submitted on January 11, 2007.

Ms. Punzone testified that the costs incurred in her November 15, 2006 appearance was $129.00. Mr. Grossman testified that his costs for the appearance having spent at least two hours in preparing for the appearance and spending half a day in court to be $1000.00 plus a parking fee of $23.00.

Mr. Reddy's position was that as a matter of due process and law there was the threshold [*3]question as to whether costs could be assessed for his conduct without first having given him an opportunity to be heard. Mr. Reddy alleged that while there is a requirement to file and serve an affirmation of actual engagement, there is no time requirement in the rules as to when it can be filed. He indicated as a result of an emergency in one of his cases concerning a foreclosure sale he did not have time to file an affirmation of engagement on November 15, 2006, and took it upon himself to file it on January 11, 2007.

Mr. Reddy stated that he did not appear on November 15, 2006 as he took on other engagements after being told his client would not be able to come to court. He believed his client was sick and thus unable to continue with the trial. He called Mr. Grossman the first time to tell him plaintiff was sick and sought an adjournment on consent, which Mr. Grossman would not agree to. He then called the court seeking an adjournment and was told it needed to be on consent. He later called Mr. Grossman back and told him he had other matters pending in Supreme Court, Suffolk County. He claimed he didn't give Mr. Diamond an affirmation of actual engagement to present to the court because Mr. Diamond didn't have a fax machine. As to Ms. Punzone, he claims he was unable to contact her and understands she lost wages. Mr. Reddy does not believe his conduct was frivolous in any way. It was his understanding the trial would not be able to go forward without the plaintiff who was in the middle of testifying, while he had two other matters ready to go. The matters at issue were a preliminary conference on a matrimonial matter before a justice's law clerk, and the submission of an order to show cause ("OSC") for signature seeking a temporary restraining order ("TRO") in a foreclosure sale. As he put it, "[i]t was a question of spending five to six hours to come out to Brooklyn for the purpose of saying that we cannot go forward, which I believe is not an efficient administration of justice". He believes that he did not intentionally delay anything, as he was actually engaged. He claimed to have misunderstood Part 125 of the Rules of The Chief Administrator ("Part 125"), believing that matrimonial actions took precedence over civil actions. However, on further reading he realized that it is matter of discretion for the trial judge. He now realized that a preliminary conference did not rise to the level of a trial, however he felt that the submission of an OSC requiring argument for signature did rise to the level of being actually engaged as defined in Part 125. It was not his position however that this took precedence over a scheduled trial. But he felt there was no conflict in appearances created by submitting the OSC, as in his experience when a party who is necessary for the proceeding to continue is not available an adjournment is given.

In summary while cognizant that there was a continued trial scheduled for which he had not obtained an adjournment on consent, nor obtained an adjournment from the court, nor filed an affirmation of actual engagement, he steadfastly maintains he knew the case could not go forward as Claudia Diamond was unavailable. In response to how that excused him from appearing he opined, notwithstanding his earlier statements, "I think the true core issue from a matter of justice is whether I was actually engaged. I don't really think that was seriously in dispute. I was at two other courts before two other justices on November 15th".

Subpart 130-2 provides for the imposition of financial sanctions or costs for unjustified failure to attend a scheduled court appearance after a reasonable opportunity to be heard and consideration of attendant circumstances. As to the threshold issue raised, Mr. Reddy is confusing costs assessed for an attorney's failure to appear pursuant to Subpart 130-2, with costs assessed as a condition of granting an adjournment. The granting or denial of the adjournment is [*4]within the sound discretion of the trial court. In re Sakow, 21 AD3d 849 (1st Dept 2005). The costs here were assessed as a condition of granting the adjournment to compensate defendant's attorney and the pro-se defendant for their expenses of having come to court for naught as opposed to dismissing the action, and not based on Mr. Reddy's failure to attend a scheduled court appearance under Subpart 130-2. (see CPLR §4402- court may order a continuance in the interests of justice on such terms as may be just). Illustrative in this regard is the case of McCluskey v Ferriter, 292 AD2d 244 (1st Dept 2002), where the Appellate Division vacated the dismissal of a complaint caused by plaintiff's counsel's failure to appear for trial, conditioned on plaintiff's counsel paying all costs, expenses and attorney fees suffered by defendant by virtue of the adjournments caused by him. These costs were assessed notwithstanding plaintiff's counsel's showing of engagement in another court. Thus a finding of engagement in another court does not preclude the imposition of costs as a condition to permitting the continuation of the action. Such engagement however may preclude sanctions and costs predicated under Subpart 130-2 upon a finding of good cause for the attorney's failure to attend a scheduled court appearance.

Mr. Reddy's argument that the action should have been adjourned pursuant to Part 125 as he was actually engaged and there being no time requirement for filing an affirmation of actual engagement is deficient on two grounds. Uniform Rule of the Trial Courts §202.32 provides that no adjournment shall be granted on the ground of engagement of counsel except in accordance with Part 125. While engagement of counsel is a ground for an adjournment [Part 125.1(a)], each engagement has to be proved by affidavit or affirmation filed with the court [Part 125.1(e)(1)], and in determining an application for an adjournment on the ground of engagement elsewhere, the court shall consider the affidavit of engagement [Part 125.1(e)(2)]. It is self evident that a court cannot consider an affirmation of actual engagement in determining an application for an adjournment when it has yet to be filed. Consequently the later filing of the affirmation cannot retroactively serve as the basis to grant an adjournment even if the attorney was in fact engaged as defined in Part 125. The affirmation of engagement has to be before the court at the time the court is considering the application.

Even assuming Mr. Reddy had properly filed his affirmation of engagement so that it was before the Court on November 15, 2006, he still would not have been entitled to an adjournment. Part 125.1(b) provides that engagement of counsel means actual engagement on trial or in argument before any state or federal trial or appellate court, or in an arbitration proceeding under CPLR §3405. A preliminary conference before a law clerk clearly does not meet this requirement. As to the oral argument for the OSC in the foreclosure action, Mr. Reddy in his affirmation of engagement submitted on January 11, 2007 indicates that when he appeared at the Suffolk County courthouse in the afternoon of November 15, 2007, he "was informed by the Court that a request to appear for oral argument in opposition to the stay had been received by the Court", which was held before a Justice with opposing counsel appearing telephonically. Thus Mr. Reddy had not even aware that oral argument would be required at the time he chose not to appear before this Court. However even assuming he had not created the conflict by choosing to submit the OSC that day and he knew beforehand of the oral argument, where a trial has already commenced an adjournment of the trial is in the sole discretion of the judge presiding thereat [Part 125.1(f)]. This Court would not have granted an adjournment based on "engagement" of counsel for argument on a OSC.

The failure to file an affirmation of actual engagement for a scheduled court appearance [*5]however does not in and of itself compel a finding that the failure to appear was without good cause and that sanctions are warranted, rather it is only one of the eight considerations listed in Part 130-2.1 (b) for determining whether a sanction is appropriate.

Another consideration is the explanation by the attorney for his nonappearance. Mr. Reddy avers that he took on other matters as he believed the case could not go forward, due to Claudia Diamond being ill. This in and of itself is insufficient and does not excuse his nonappearance. He had the obligation to appear before this Court and seek an adjournment based on his client's alleged illness given that he knew Mr. Grossman was not consenting, and not compound the problem by not appearing himself. While he characterizes it as an inefficient administration of justice to spend five to six hours to come out to Brooklyn for the purpose of saying that we cannot go forward, it appears that it was not so much an inefficient administration of justice as he believed it was an inefficient use of his time. The efficient administration of justice impels compliance with its rules and mandates. Mr. Reddy had a scheduled court appearance in a continued trial and was required to appear, even just to ask for an adjournment based on his client's alleged illness. That he felt that his time could be better and perhaps more profitably spent elsewhere, does not excuse his nonappearance.Notwithstanding this explanation for failing to appear being insufficient, even were the Court disposed to find Mr. Reddy's nonappearance not to have been in bad faith, but rather a lapse in good judgment based on his belief, his later actions undercut and militate against such a finding. At the January 5, 2007 continuation of the trial when Claudia Diamond again failed to appear he indicated that he could continue the trial without her through other witnesses. Lest the Court have misunderstood Mr. Reddy or perhaps think that he spoke without due consideration of his prior position, in his later affirmation of engagement dated January 11, 2006 he reiterates in paragraph 21 that he was fully prepared to continue the trial, even in the absence of Claudia Diamond. The Court is in no way indicating that the trial could continue without Claudia Diamond, but is solely looking to Mr. Reddy's state of mind. No explanation is proffered as to why he was so adamant in believing the trial could not go forward without her on November 15, 2006, while insisting he could proceed in her absence on January 11, 2007. The only conclusion the Court can draw is that Mr. Reddy espouses whatever position is expedient to him at the time.

Another consideration is whether the attorney notified the court and opposing counsel in advance that he would be unable to appear. Mr. Reddy's first call to opposing counsel Mr. Grossman concerned not his inability to appear, but rather that of his client. It was only after Mr. Grossman failed to consent to an adjournment that Mr. Reddy later called him back and stated that he had other appearances. Mr. Reddy's notification to the court was that his client was ill and therefore was seeking an adjournment, not that he was unable to appear.

Another consideration is whether substitute counsel appeared in court to proffer an explanation for the attorney's nonappearance. Here Mr. Reddy relegated his client to come in to convey the message that he was not coming and to ask for an adjournment. Mr. Reddy claimed he did not provide Mr. Diamond with an affirmation of actual engagement to present to the court as Mr. Diamond did not have a fax machine, however this Court does. Mr. Reddy could have called and requested the number and faxed the affirmation of engagement to the court. Instead he left his client in the position of being unrepresented with nothing before the Court while opposing counsel made an application to dismiss the case with prejudice.

Another consideration is whether the attorney on prior occasions in the same action failed [*6]to appear. Although Mr. Grossman alleges he made some thirty prior appearances in this action, the Court is not aware of whether Mr. Reddy missed any of those appearances. Mr. Reddy appeared on the date the trial commenced which was the one prior appearance before this Court. For the purposes of this opinion the Court will consider Mr. Reddy's nonappearance on November 15, 2006 to be his only nonappearance.

Another consideration is the adequacy of the notice to the attorney of the date and time of the scheduled appearance. Mr. Reddy's claim is not that he had inadequate notice of the continued trial date, but rather he did not appear due his client's alleged illness.

Another consideration is whether financial sanctions or costs had been previously imposed upon the attorney. Having no information to the contrary, the Court assumes that Mr. Reddy has not been previously sanctioned.

The final listed consideration is the extent and nature of the harm caused by the attorney's failure to appear. This was limited by the Court, as over defendants's attorney's objection the action was adjourned rather than dismissed.

On consideration of the attendant circumstances the Court finds Mr. Reddy failure to appear on November 15, 2006 was without good cause. The Court is cognizant of the fact that Mr. Reddy is a solo practitioner and is loath to impose sanctions. In consequence the Court sought to avoid having the hearing and encouraged Mr. Reddy to settle the costs matter with Mr. Grossman and Ms. Punzone. The Court indicated if a settlement was made, the Court would consider the matter closed regarding his nonappearance on November 15, 2006 and not proceed with the sanctions hearing. However, Mr. Reddy insisted in the correctness of his actions and that he had been entitled to an adjournment under Part 125. Mr. Reddy has totally misconstrued the function of Part 125 which is to delineate and provide the criteria upon which an attorney may obtain an adjournment based on being otherwise engaged. This is in recognition of the fact that at times the responsibilities of competing cases may cause an attorney through no fault of his/her own to have conflicting engagements. Its purpose is to set up priorities when such conflicts arise, not to create a way for an attorney to extricate himself from a scheduled trial date he is aware of, by setting up a conflict and then using the conflicting engagement as the excuse for not appearing when the other side will not consent to an adjournment. No less than his own affirmation of engagement establishes that his failure to appear was self-created and avoidable. As stated at paragraph 13, "[b]ased on the reported illness of the plaintiff Claudia Diamond by her husband and the inability to continue her testimony on November 15, 2006, I seized the opportunity to seek a temporary restraining order...." (emphasis added). Mr. Reddy's explanation for not appearing is without merit and is inexcusable.Accordingly the Court finds based on the testimony elicited at the hearing that the reasonable amount of costs incurred by Ms. Punzone due to her appearance on November 15, 2006 to be $129.00; and the reasonable amount of costs incurred by Mr. Grossman to be $500.00. The Court further imposes upon Mr. Reddy sanctions pursuant to Subpart 130-2 in the sum of one thousand dollars ( $1000.00) to be deposited with the Lawyers' Fund for Client Protection. Judgment is granted against Mr. Reddy accordingly.

The foregoing constitutes the decision and order of the court.

E N T E R [*7]

J. S. C.