SIX-FOOT DEEP POCKET
By Mark Thompson
markthomp@yahoo.com
Posted 11-19-08
New York County Justice Barbara R. Kapnick drew an unusually sharp rebuke from the Appellate Division for her role in keeping alive a prison inmate’s lawsuit against a lawyer who died before he was sued.
Amin Marte, a city jail inmate serving as his own attorney, filed the legal malpractice suit in July 2005 against Herman Graber, apparently learning somewhat later that Graber had died three months earlier.
That never seemed to trouble Kapnick, who issued a succession of rulings that helped Marte advance his case. Those efforts were greeted with scorn by Justice James Catterson, writing for a unanimous panel of the Appellate Division. “The matter arrives before this court as a result of a volume of errors rarely seen in this department, and which are set forth below, seriatim,” Catterson announced.
To begin with, Kapnick granted Marte two extensions of time, pushing back for a full year the deadline for service of the summons and complaint. Kapnick was “apparently unaware that time was not the problem in a case where the only named defendant could never be served with the summons and complaint, however long the plaintiff was given to do so,” Catterson scoffed.
She compounded her other errors by granting Marte’s motion to amend the summons and substitute the voluntary administrator of Graber’s estate for the deceased attorney himself, an exercise that Catterson called “adjudicating a nullity.”
Catterson left open the possibility that Kapnick learned only belatedly that Graber had died before he was sued. But even if that were the case, the judge still “would have been in error issuing any order at all since all orders rendered after the death of a defendant, even in a properly commenced action, are void until an order granting substitution,” Catterson observed. No such substitution was ever requested or ordered in this case.
“There simply is no precedent nor any statutory support for a court obtaining jurisdiction over an action commenced three months after the death of the individual named as the sole defendant,” the appellate panel said. The case was a nullity from the outset and Kapnick should have dismissed it at first glance, the panel concluded. Marte v Graber (November 13)
OTHER NOTABLE REVERSALS
BRONX COUNTYPLEA: Justice David Stadtmauer’s bad habit of rushing criminal defendants through plea hearings got the better of him again last year, according to the Appellate Division. For the third time in the last two years, a unanimous appellate panel had to toss out a guilty plea that was hastily processed in Stadtmauer’s court. In the May 2007 plea hearing for Alberto Lopez, who was charged with robbery and burglary, Stadtmauer made no mention of any of the rights that Lopez would be waiving by pleading guilty, including his right to a jury trial, his right of confrontation and his right against self-incrimination. As a result, his plea was not knowing and voluntary and had to be vacated, the appellate panel said. Stadtmauer was reversed twice last year for doing the same thing at hearings in 2002 and 2005, respectively. People v Lopez (November 13)
TORT: Justice Kenneth L. Thompson Jr. tossed out a jury verdict with which the Appellate Division had no quibbles. The Bronx jury had sided with Bernice Brown on her claim that she slipped and fell in a pothole while attempting to board a bus away from the curb, but Thompson set aside the verdict on grounds that the plaintiff never provided proper notice to the city of his intention to sue for breach of the transit authority’s duty to provide a safe place to board a bus. The unanimous appellate panel, in contrast, found that the city had plenty of notice about the plaintiff’s theory of liability in the case. There was no reason for Thompson to second-guess that jury’s conclusion that the bus driver was at fault, the panel concluded, reinstating the verdict on the issue of liability and sending the case back for a trial on damages. Brown v City of New York (November 13)
NEW YORK COUNTYEMPLOYMENT: Justice Debra A. James had no good reason, at least none that the Appellate Division could discern, for blocking the city corrections authority from terminating a probationary employee who wasn’t doing as she was told. James seemed to think Stephanie Bradford deserved another chance, but according to the appellate panel, that’s not James’s call to make. Bradford conceded that she repeatedly failed to submit statistical reports required by the rules and regulations of the Department of Correction, and for that reason alone, since she was a probationary employee, the department had every right to let her go, no questions asked, the panel concluded, reversing James and reinstating Bradford’s termination. Matter of Bradford v New York City Department of Correction (November 13)