The opinion of the court was delivered by: BLOCK
On May 31, 1991, defendant Incorporated Village of Rockville Centre (the "Village") terminated plaintiffs' long-term employment as parking meter repairmen. Plaintiffs initiated this lawsuit on November 27, 1991, approximately six months later. Their complaint charged the Village with age discrimination, under both federal and state law (the "age discrimination claim"), and for breaches of certain protective provisions of a collective bargaining agreement (the "contract claim") between the Village and plaintiffs' union, defendant Rockville Centre Civil Service Employees Association (the "Union"). It also charged the Union and its President, Glenn A. Hudson ("Hudson"), in both his official and individual capacities, for breaching their duty of fair representation (the "fair representation claim"). Plaintiffs expanded their claims against the Union and Hudson in an amended complaint on May 15, 1992, adding charges of negligence and breach of fiduciary duty. On August 31, 1995, the Court granted the Union and Hudson partial summary judgment, dismissing the negligence and breach of fiduciary duty claims, as well as all claims against Hudson in his individual capacity. See Memorandum and Order, dated August 31, 1995 (Platt, J.). The age discrimination, contract and fair representation claims were thereafter brought to trial on March 5, 1996. After a jury had been selected and all the parties had made opening statements in respect to each of these remaining claims, the Village's trial counsel, Rivkin, Radler & Kremer ("Rivkin"), in the personages of James P. Nunemaker, Jr., Esq. ("Nunemaker") and Ken Novikoff, Esq. ("Novikoff"), moved to dismiss plaintiffs' contract claim on the ground that plaintiffs had not complied with the notice of claim requirements of New York Civil Practice Law and Rules § 9802 ("CPLR § 9802"). Quite understandably, this discombobulated plaintiffs' attorneys, each of whom were sole practitioners, who were not prepared for such a surprise.
The Court reserved decision on the motion in order to afford plaintiffs an opportunity to submit responsive papers. It also decided to sever the contract and fair representation claims. The trial was, accordingly, limited to plaintiffs' age discrimination claim against the Village, which the jury rejected.
Troubled by the Village's counsels' trial tactic, Nunemaker and Novikoff were afforded a full opportunity to explain to the Court during the course of the trial whether there was any plausible reason why the motion could not have been made at an earlier time. Not being satisfied with their explanations, the Court informed them that it was considering sanctions, and invited submission of papers on the issue.
Having received plaintiffs' responsive papers to the Village's motion to dismiss, and a memorandum of law from Rivkin in response to the sanction issue, the Court now determines that the Village's motion should be denied, and that Nunemaker and Novikoff should be sanctioned pursuant to 28 U.S.C. § 1927 ("§ 1927") for their trial ploy.
No action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued. . . . The omission to present a claim or to commence an action thereon within the respective periods of time above stated applicable to such claim, shall be a bar to any claim or action therefore against said village.
Plaintiffs seek to avoid these acknowledged failings by contending that their defective notice of claim, when coupled with their subsequent complaint, was sufficient to put the Village on notice of their contract claim. They argue, alternatively, that the Village waived its right to seek dismissal by not raising the notice of claim issue prior to the commencement of the trial.
The Court initially met with Nunemaker and Novikoff, and the other parties' attorneys, in chambers on January 5, 1996, two months prior to the commencement of the trial, to review a joint pre-trial order that had been submitted two years before. The Court next met with all counsel on January 26, 1996 to review an amended pre-trial order and to set a trial date. The jury was thereafter selected on February 26, 1996, and a final pre-trial conference was held on March 4, 1996, the day before the trial began. Counsel was apprised at the pre-trial conferences of the Court's practice and policy to attend to all objections to proposed exhibits and all other legal issues that could be disposed of prior to trial in order to obviate any trial surprises or delays. The Court also advised counsel that it was particularly sensitive to the effective utilization of the jurors' time and that they should not engage in conduct that would unnecessarily require detention of the jury once the trial started. A number of legal matters were raised and resolved at the pre-trial conferences; but not a word was mentioned by Nunemaker or Novikoff about the notice of claim issue.
When initially questioned by the Court upon the making of the motion why it could not have been made earlier, Novikoff responded that it was raised as expeditiously as possible:
THE COURT: This is not a motion that could have been made before?
NOVIKOFF: No, Your Honor.
The Court summarily then denied the motion, but nonetheless engaged in the following colloquy:
THE COURT: You had every opportunity to raise that issue before. You had summary judgment motions made. Why do you wait until after opening to make an application like that? This is not trial by ambush.
NOVIKOFF: For that reason we did not wait until the end of plaintiffs' case. We found no evidence of a notice of claim. Until we found out that the evidence would not be submitted, we cannot make the motion. It has to be pled and proven.
NOVIKOFF: Absolutely not.
THE COURT: You can raise this at any time during the course of the trial.
NOVIKOFF: I would submit, Your Honor, there are two opportunities prior to trial to raise this, one, after openings, two, on a motion for a directed verdict.
THE COURT: You gave no advance notice to anybody that you wish to do that. Why could you not have done this before we selected a jury and commenced the trial? ...