ACS NY v. Gerald Schwartz, Amicus Curiae. (2001)

Order, Family Court, New York County (Jody Adams, J.), entered on or about February 25, 2000, which imposed a $250 sanction upon the nonparty appellant for unjustifiably failing to attend a scheduled court appearance, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the order vacated.   Appeal from order, same Court and Justice, entered on or about April 6, 2000, which denied nonparty appellant's motion for reargument of the aforementioned order, unanimously dismissed, without costs, as taken from a non-appealable paper.

The court improvidently exercised its discretion pursuant to 22 NYCRR 130-2.1 in sanctioning appellant, a staff counsel for petitioner ACS NY, under circumstances where his conduct was not deliberate or without good cause (see, Matter of Walsh v. People of the State of New York, 206 A.D.2d 434, 614 N.Y.S.2d 441).   Appellant was only 35 minutes late for a fact-finding hearing and most of the delay was due to circumstances beyond his control, namely a fire drill and a defective elevator in the courthouse, as well as a last-minute problem with his witnesses for the hearing.   Moreover, even though his witnesses were available immediately after the court adjourned the hearing, the court refused to recall the case.