N.Y. Comp. Codes R. & Regs. Tit. 22 §§ 130-2.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 130-2.1 - Costs; sanctions

(a) Notwithstanding and in addition to the provisions of Subpart 130-1 of this Part, the court, in its discretion, may impose financial sanctions or, in addition to or in lieu of imposing sanctions, may award costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, upon any attorney who, without good cause, fails to appear at a time and place scheduled for an action or proceeding to be heard before a designated court. This Part shall not apply to town or village courts or to proceedings in a small claims part of any court.

(b) In determining whether an attorney's failure to appear at a scheduled court appearance was without good cause and in determining the measure of sanctions or costs to be imposed, the court shall consider all of the attendant circumstances, including but not limited to:

(1) the explanation, if any, offered by the attorney for his or her nonappearance;

(2) the adequacy of the notice to the attorney of the time and date of the scheduled appearance;

(3) whether the attorney notified the court and opposing counsel in advance that he or she would be unable to appear;

(4) whether substitute counsel appeared in court at the time previously scheduled to proffer an explanation of the attorney's nonappearance and whether such substitute counsel was prepared to go forward with the case;

(5) whether an affidavit or affirmation of actual engagement was filed in the manner prescribed in Part 125 of the Uniform Rules for the Trial Courts of the Unified Court System;

(6) whether the attorney on prior occasions in the same action or proceeding failed to appear at a scheduled court action or proceeding;

(7) whether financial sanctions or costs have been imposed upon the attorney pursuant to this section in some other action or proceeding; and

(8) the extent and nature of the harm caused by the attorney's failure to appear.

(c) The court, as appropriate, may impose any such financial sanctions or award costs upon an attorney personally or upon a partnership, firm, corporation, government agency, prosecutor's office, legal aid society or public defender's office with which the attorney is associated and that has appeared as attorney of record.

(d) The imposition of sanctions or award of costs may be made either upon motion or upon the court's own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the attorney's failure to appear and the totality of the circumstances of the case.

N.Y. Comp. Codes R. & Regs. Tit. 22 §§ 130-2.1