I was the victim of a total breakdown in communication between judges. In fact, two judges that I had never met, in which Court I almost never practice. Luckily, I don’t hide my emotions well, and I certainly made enough of a stink to get some recourse. After all, “The squeaky wheel gets the grease.” I got certainly got the most grease.
I had three cases in the Civil Court, one which was going to be discontinued, and two commercial cases, which were ready for trial. I appeared on both of these cases, along with witnesses for both, (one case, with a witness from out of state, and on the other, with four witnesses), before a Judge, let’s call him, Judge Moe. The Defendant’s attorneys on both of these cases were also there, and all parties checked in with the clerk, who marked the cases “Ready, Trial”.
The typical procedure in this Court is that all parties appear before Judge Moe on the first floor, and he assigns each ready case to another Judge’s part to conduct the trial. The Court Clerk instructed us to wait in the Courtroom until we were called again.
We waited for well over two hours. They did not call the case. We never left the room, and never heard the case called. When the third case that I was on was called and resolved, I inquired with Judge Moe as to whether we would be sent out for trial on the two ready cases. The Judge then proceeded to berate me, screaming that both cases had already been sent up to another Judge, and the burden was on me, to find out if and how they were sent up. I argued that neither he nor the clerk ever called the case again. Judge Moe refused to consider what I was saying, and in open Court, accused me of calling him a liar. Of course, the Court Clerk looked at me, and stated that she had no record of the matter being assigned. Judge Moe insisted that he had assigned it out. However, he refused to tell me what part. I asked him to at least tell me which Judge, and he finally told me that it had been sent to… let’s call him, Judge Larry. I asked Judge Moe to tell me which part and room Judge Larry presided in, and Judge Moe refused, stating that I should go find a Court directory, and figure it out myself. The Court Clerk, scrambled through a Court directly, and advised me of the room.
As such, all the witnesses and adversaries and I proceeded to Judge Larry’s part. When we got there, the room was empty except for a Court officer, who informed us that the Judge has dismissed both cases. I asked to speak to Judge Larry, and the Court attorney came out, and told me that the cases were dismissed for non-appearance by either side. I tried to explain to the Court attorney that Judge Moe never advised us to come up, and that the matters were never called out. I argued that it was patently unfair. We were marked ready, not advised of the room, and now, dismissed because the Court did not properly advise us. Clearly all parties were in the Courthouse, and before dismissing it, Judge Larry’s part could have called down to Judge Moe’s part, to inquire as to where all parties were, since we were all still waiting downstairs. The Court attorney told me to include that argument when I bring my order to show cause to vacate the dismissals.
I requested to see the Judge, and the Court attorney refused my request. I then stated that I wanted to see the Administrative Judge, and was told to “Do whatever you have to do.”
As such, the Defendants left, with feces-eating grins on their faces, skipping gaily, high-fiving each other while singing “We are the Champions” in four part harmony, I begrudgingly told my witnesses to leave, as we could not proceed with a dismissal marking, and with no adversary. After they scooped their jaws up from the linoleum, they told me that despite their shock and ire, they knew it wasn’t my fault.
I then marched myself to the fifth floor to meet with the Administrative Judge, futilely trying to keep my supratrochlear veins from bursting. When I got there, there were two Court officers. One asked me “May I help you, sir?” Contemporaneously, the other said, “Man, you ok, buddy?”
They called in the Court attorney, as the Administrative Judge, Judge Curly, was still on the bench. The Court attorney advised me that while she noted my complaint, it was not official until I put it in writing (which I did do, subsequently). Shortly thereafter, while I was still speaking to her, Judge Moe’s Court attorney Lucille, walked into the room, and asked me to go with her back downstairs. Apparently, Judge Larry and Judge Moe had a… heated discussion about these matters, and now, both cases would be restored to the calendar, without the need for further motions.
I went back down to Judge Moe’s part, and when he signed the order to restore the cases, he shied away from me, and avoided any eye contact.
After I got back to the office, I received a call from another attorney who was in the Courtroom when I was with Judge Curly. He told me that apparently, Judge Larry came storming into Judge Moe’s room, in just a shirt and tie, no robe or jacket, and said, “Moe, it’s not my fault!”
“Well, why did you dismiss the cases?” Judge Moe responded.
“You never told all those people to come to me! How was I supposed to know?” retorted Judge Larry.
“Whatever, you’ll have to take it up with Judge Curly!”
“No, you will!”
And then, apparently, Court attorney Lucille then told them to go back into chambers to finish their discussion, whereupon, they apparently agreed to grease my wheel, and restore the actions to the calendar.
Timothy Wan is a partner in the firm Smith Carroad Levy & Wan, in Commack, New York, and can be reached at twan@smithcarroad.com. Everything in this actually happened, as best as can be told, except for one paragraph, and Tim leaves it up to you to figure out which one.
(Originally published in Commercial Law World Magazine, January 2012
