Claim dismissed pursuant to Court of Claims Act §19 (3) for Claimant's failure to prosecute decade-old Claim.
|Claimant short name:||REID|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Hanschke, PC
By: Peter Hanschke, Esq. (No Appearance)
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Ray A. Kyles, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 10, 2020|
|See also (multicaptioned case)|
Claimant Cedric Reid, an inmate then proceeding pro se, filed this Claim on November 16, 2009 alleging that Defendant was negligent in failing to protect him from an assault by another inmate. On February 28, 2014, Claimant was released to parole supervision.
On July 7, 2014, after the Court was notified of Claimant's new address, this Claim was transferred from the prisoner pro se calendar to the Individual Assignment Calendar of Hon. Nicholas V. Midey, Jr.
In preparation of a status conference via telephone scheduled for January 27, 2015, Claimant provided the Court with a phone number which, it was later discovered, belonged to Peter Hanschke, Esq. (Attorney Hanschke) Attorney Hanschke advised the Court that he would be representing the Claimant. Although Attorney Hanschke stated that he would file a Notice of Appearance by a scheduled calendar call on February 23, 2015, he failed to do so. However, Attorney Hanschke did appear at the February 23, 2015 conference on Claimant's behalf. At the conference, the Court directed Attorney Hanschke to file a Notice of Appearance within 10 days and to report to the Court within 30 days as to the status of the Claim. Attorney Hanschke filed a Notice of Appearance on February 27, 2015.
In late March 2015, Attorney Hanschke contacted Judge Midey's Chambers via telephone regarding the status of the case. Although Attorney Hanschke was advised to submit a letter detailing the status, he failed to do so. On April 25, 2015, Attorney Hanschke advised the Court that Defendant had failed to respond to his discovery demands for three weeks. However, Attorney Hanschke did not request a conference to resolve the discovery issue. The Court thereafter scheduled a status conference by telephone to be held on July 14, 2015 to resolve outstanding discovery issues.
By Amended Order dated July 14, 2015 and filed July 28, 2015, the Court set a disclosure schedule. As relevant here, the Court ordered Claimant to file a Note of Issue and Certificate of Readiness on or before December 9, 2015. The Amended Order advised in all capital letters that "[f]ailure to comply with any of these directives, or timely obtain an extension thereof, may result in the imposition of costs or other sanctions as authorized by law, including dismissal of the claim." Attorney Hanschke failed to file a Note of Issue of Certificate of Readiness by December 9, 2015 or timely seek an extension.
The Court thereafter scheduled a status conference by telephone for March 7, 2016. Attorney Hanschke failed to appear at the status conference at the scheduled time. Attorney Hanschke contacted the Court later that day and explained that he was experiencing an issue with discovery and intended to bring a motion to compel. Attorney Hanschke was advised that the discovery issue must be conferenced with the Judge prior to the filing of any discovery motion in accordance with the Court's rules (see Uniform Rules for the Court of Claims [22 NYCRR] 206.8 [b]). Consequently, Attorney Hanschke was directed to request a conference, in writing, to address the outstanding discovery issues. By letter dated June 24, 2016, Attorney Hanschke requested a status conference regarding same.
A status conference pursuant to Attorney Hanschke's request was conducted on July 11, 2016; and the Court granted Attorney Hanschke's permission to file a motion to compel discovery.
Attorney Hanschke filed his motion to compel on November 3, 2016 (M-89462). During the pendency of the motion, Defendant advised the Court that it had provided the outstanding discovery and argued that the motion was moot. Accordingly, the Court directed Attorney Hanschke to notify the Court of any outstanding issues with his discovery demands in light of Defendant's production. Attorney Hanschke failed to respond to the Court's request, either orally or in writing, and his motion to compel was denied as moot. The Decision and Order denying the motion to compel was sent to Attorney Hanschke's last known address on file with the Chief Clerk and was returned as undeliverable. An independent search conducted by the Chief Clerk's Office revealed that Attorney Hanschke had changed the name of his law firm and had moved to a different location. The Court's Decision and Order was thereafter sent to Attorney Hanschke's new address with a note advising that he notify the Chief Clerk of his new address in accordance with the Uniform Rules for the Court of Claims (22 NYCRR) § 206.6 (f). To date, Attorney Hanschke has failed to so notify the Chief Clerk's office of his new address.
On July 19, 2019, this Claim was transferred to the undersigned. By letter dated September 9, 2019, the Court scheduled a calendar call for the above Claim on September 25, 2019 at the New York State Court of Claims in Syracuse, New York. The letter advised that personal appearances were required and the failure to appear could result in sanctions, including dismissal of the Claim. On September 24, 2019 at 5:18 p.m., the Court received a facsimile transmittal from Attorney Hanschke advising in a letter that he would not be able to attend the calendar call because he "failed to properly account for the travel time and make sure that nothing else was scheduled for [September 25]." Attorney Hanschke apparently had appearances for other cases on September 25, 2019. The Court graciously permitted Attorney Hanschke to appear for the calendar call via telephone.
At the calendar call, Attorney Hanschke reported that he recently met with Claimant, who was then incarcerated at Sing Sing Correctional Facility, about this Claim. Attorney Hanschke stated that Claimant wished for Attorney Hanschke to continue representing Claimant in this litigation. The parties reported that no depositions had been conducted for this Claim despite the fact that Judge Midey's July 2015 Amended Order directed that depositions be completed by November 20, 2015. At the conclusion of the calendar call, the undersigned directed Attorney Hanschke to submit an engagement letter by the end of the day showing that he was scheduled to appear in court in New York City on September 25, 2019. The Court also requested that Attorney Hanschke submit a list of proposed dates in February 2020 so that he can appear for an in-person calendar call for the Claim at the New York State Court of Claims in Syracuse, New York without conflict. Moreover, the Court reminded Attorney Hanschke of his responsibility of updating his address with the Chief Clerk.
In accordance with the Court's directive, Attorney Hanschke submitted an engagement letter stating that he was scheduled to be in Kings County Supreme Court in the morning and New York County Supreme Court in the afternoon of September 25, 2019. Moreover, Attorney Hanschke affirmed "I will be certain to appear in person in Syracuse for your February conference with the only dates of unavailability being Feb 4, 7, 17, 18, and 20."
By Order dated September 26, 2019, the Court directed (1) all discovery, including examinations before trial, be completed on or before December 31, 2019 and (2) Claimant to file a Note of Issue and Certificate of Readiness on or before January 31, 2020. The Order states that these deadlines would not be extended absent a motion on notice for good cause shown. The Order set an in-person status conference for February 5, 2020 at 1:00 p.m. at the New York State Court of Claims in Syracuse, New York. Lastly, the Order emphasized in all capital letters that "[f]ailure to comply with any of these directives, or timely obtain an extension thereof, may result in the imposition of costs or other sanctions as authorized by law, including dismissal of the Claim."
Attorney Hanschke failed to file a Note of Issue and Certificate of Readiness or move for an extension thereof by January 31, 2020. Additionally, Attorney Hanschke failed to appear at the conference scheduled for February 5, 2020 despite the Court's accommodation of his schedule. To date, Attorney Hanschke has not contacted the Court regarding his failure to file the Note of Issue, seek an extension of same, or his lack of appearance at the February 5, 2020 conference.(1) Moreover, Attorney Hanschke has failed to update his address with the Chief Clerk in accordance with the Uniform Rules for the Court of Claims (22 NYCRR) § 206.6 (f) despite being directed by the Court.
Court of Claims Act § 19 (3) provides that "[c]laims may be dismissed for failure to appear or prosecute . . . in the discretion of the court" (see Dickan v State of New York, 16 AD3d 760, 761 [3d Dept 2005]). Further, the Uniform Rules for the Court of Claims (22 NYCRR) § 206.10 (g) permits the Court to dismiss a claim "[i]f any party fails to appear for a scheduled conference." As the Court of Appeals has stated "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v Pfeffer, 94 NY2d 118, 123 ).
As detailed above, Attorney Hanschke's conduct since his initial appearance in this litigation in February 2015 evinces not only a general pattern of delay in prosecuting this decade-old Claim (see CPLR 205) but establishes his blatant disregard of Court orders and directives.
Accordingly, it is hereby:
ORDERED that Claim No. 117689 is dismissed pursuant to Court of Claims Act § 19 (3) and the Uniform Rules for the Court of Claims § 206.10 (g).
February 10, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
1. After Attorney Hanschke failed to timely appear at the status conference, this Court's chambers contacted his office to inquire what time Attorney Hanschke was going to appear. A representative from Attorney Hanschke's office stated the attorney had an emergency and could not attend the conference. This representative stated the Court's telephone number could not be located to advise of this purported emergency.