angry judge

What Constitutes Adequate Notice by Judge for Attorney to Appear in Court?

A late afternoon call

Plaintiff moved for summary judgment. Defendant filed opposition. Neither party requested oral argument.

One day before the return date of the motion, at about 4:00 p.m., court staff called the parties to notify them that the court desired to hear oral argument the next morning. Defendant did not answer the telephone call, and court staff left a message on an answering machine. The next morning, only the attorney for plaintiff appeared for oral argument. At 9:15 a.m., the court stated it would proceed in defendant’s absence and heard the motion. Following a brief colloquy with counsel for plaintiff, the court stated it saw no disputed issues of fact in the summary judgment submissions and granted plaintiff’s motion as presented. Defendant filed a timely notice of appeal.

I’ll show you who’s boss

“Initially, we address the court’s decision to hear oral argument in defendant’s absence. Rule 1:6-2(d) authorizes the court to direct that oral argument be held for a civil motion even if neither party has requested it. But inherent in the rule is that the court will give adequate notice of the scheduled oral argument so that the parties can attend and participate. Here, the court attempted late contact with the parties but did not confirm that defendant had received the message. The court proceeded to hear from plaintiff’s attorney alone without determining whether defendant had voluntarily chosen not to attend. When the court learned that staff had not communicated directly with defendant, it should have adjourned the argument, attempted to contact defendant again, or dispensed with oral argument entirely. If defendant had been reached that morning, he may have been able to participate by telephone, or he may have come to the courthouse. He may also have provided valid reason for adjourning the motion. As it occurred, defendant was not given a fair opportunity to be heard in his opposition to plaintiff’s summary judgment motion.”

Defendant’s lack of participation at oral argument affected the Law Division’s understanding of his opposition papers. At the argument, the court expressed its belief that defendant had conceded the debt because he had attached some of the credit card billing statements to his opposition. The court misunderstood defendant’s opposition as contending that “it’s not [plaintiff] FIA, it’s somebody else I owe the money to.” In fact, defendant’s answer to the complaint, discovery responses, and opposition to the summary judgment motion all stated uniformly that plaintiff was suing on a credit card account number that was not defendant’s account.”

The Appellate Division’s decision

Reversed and remanded because:

…plaintiff’s proofs did not establish the debt specifically claimed, and the court improperly neglected to consider defendant’s opposition, we reverse and remand to the Law Division to reinstate the case on its active docket.”

Commentary

The  arrogance of the motion judge is something to behold. His honor decides  to fix defendant lawyer for ignoring the message his staff left on the defendant lawyer’s answering machine late Thursday afternoon to appear for oral argument the next day at 9:15 a.m. So, he proceeds without defendant lawyer, rules against defendant lawyer, and enters summary judgment in favor of plaintiff.

Problem was, it was bad behavior and the wrong decision. Kudos to the appellate division for righting this wrong.

We all learn from our mistakes, right?

FIA Card Services, NA v Kessie–sj v atty reversed and remanded

[image of judge courtesy of Bwog]

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About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information and beating NYC parking tickets for the driving community

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