Matter of Premo v. Breslin, 679 N.E.2d 630 (NY 1997). · Go Syfert
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Matter of Premo v. Breslin, 679 N.E.2d 630 (NY 1997). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases · …only if there is legislation or a court rule authorizing the sanction at p. 997 ✓
11 citation events (8 in the last 25 years) across 4 distinct courts.
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Devine v. Annucci
N.Y. App. Div. · 2017 · confidence medium
Since the petitioner failed to demonstrate “a clear legal right” to prohibition on that ground (Matter of Premo v Breslin, 89 NY2d 995, 997 [1997]), the Supreme Court should have denied that branch of the petition/complaint.
discussed Cited as authority (rule) Zanker-Nichols v. United Refining Company
N.Y. App. Div. · 2015 · confidence medium
Further, the timely appearance of an attorney at the outset of a scheduled proceeding to request an adjournment on the ground that he or she is unable to proceed does not constitute a failure to appear within the meaning of this provision (see Matter of Premo v Breslin, 89 NY2d 995, 997 [1997]; see also Matter of Tanisea K, 44 AD3d 1043 , 1044 [2007]).
cited Cited as authority (rule) In re Brown
N.Y. App. Div. · 2012 · confidence medium
Indeed, an attorney can properly be subject to monetary sanctions “only if there is legislation or a court rule authorizing the sanction” (Matter of Premo v Breslin, 89 NY2d 995, 997 [1997]). .
cited Cited as authority (rule) In re Brown
N.Y. App. Div. · 2012 · confidence medium
Indeed, an attorney can properly be subject to monetary sanctions “only if there is legislation or a court rule authorizing the sanction” (Matter of Premo v Breslin, 89 NY2d 995, 997 [1997]). .
discussed Cited as authority (rule) Donohue v. Donohue
N.Y. App. Div. · 2007 · confidence medium
An award of an attorney’s fee is not justified where, as here, the ACS attorney’s conduct was not “frivolous” as defined in 22 NYCRR 130-1.1 (a) (cf. Brocklebank v City of Lockport, 198 AD2d 906 [1993]), and the ACS attorney did not fail to appear as defined in 22 NYCRR 130-2.1 (see Matter of Premo v Breslin, 89 NY2d 995, 997 [1997]).
discussed Cited as authority (rule) Seth Rubenstein, P.C. v. Ganea
N.Y. App. Div. · 2007 · confidence medium
As a general matter, courts do not have the authority to impose a penalty or sanction absent enabling legislation or court rule authorizing the penalty or sanction (see Matter of Premo v Breslin, 89 NY2d 995, 997 [1997]; Matter of A.G.
Retrieving the full opinion text from the archive…
In the Matter of Brian D. Premo, Appellant,
v.
Thomas A. Breslin, as Judge of the County Court of Albany County, Respondent
New York Court of Appeals.
Mar 25, 1997.
679 N.E.2d 630
APPEARANCES OF COUNSEL, MacKrell, Rowlands, Premo & Pierro, P. C., Albany (Charles B. Dumas and Brian D. Premo, pro se, of counsel), for appellant., Dennis C. Vacco, Attorney-General, Albany (Peter G. Crary, Peter H. Schiff and Barbara G. Billet of counsel), for respondent.
Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley Concur in Memorandum.
Cited by 10 opinions  |  Published

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, the petition granted in its entirety and respondent prohibited from imposing sanctions on petitioner pursuant to 22 NYCRR part 130.

This is a proceeding pursuant to CPLR article 78 which was initiated in the Appellate Division pursuant to CPLR 506 (b) (1) to prohibit the respondent Judge from imposing a sanction on the petitioner pursuant to 22 NYCRR part 130.

Petitioner is an attorney whose firm was retained to represent a defendant in a criminal matter on October 19, 1995. The defendant had been charged with various sex offenses including the rape and sodomy of a 14-year-old girl. Prior to the retention of the law firm, the defendant had been represented by other counsel.

On October 30,1995, petitioner was informed by respondent’s secretary that a hearing would take place in the criminal matter on Thursday, November 2, 1995, at 1:00 p.m. On the day before the hearing, petitioner requested an adjournment, indicating that he had thought the Judge’s chambers would get back to him if the hearing was still scheduled. An adjournment was denied. When he appeared on the day of the hearing, petitioner stated that he had not had sufficient time, but was prepared to go forward. The Judge concluded that the peti[*997] tioner was unprepared to go forward, adjourned the matter and imposed a sanction of $250 for his unpreparedness.

An attorney is subject to sanction only if there is legislation or a court rule authorizing the sanction (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1). Here there is no legislation or court rule authorizing the sanction. While 22 NYCRR 130-2.1 allows sanctions for a failure of an attorney to appear in certain scheduled matters, the rule does not include a sanction for unpreparedness. We do not equate unpreparedness with a failure to appear.

We reject the respondent’s contention that prohibition does not lie in this case. Prohibition is appropriate here where the Judge clearly exceeded his authority, there is a clear legal right to the relief and the harm in imposing the sanction is great (Matter of Pirro v Angiolillo, 89 NY2d 351).

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur in memorandum.

Judgment reversed, etc.