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Danyluk v. Glashow

January 23, 2008

ANDREW DANYLUK, PLAINTIFF,
v.
JONATHAN L. GLASHOW, M.D., P.C., DEFENDANT.



The opinion of the court was delivered by: P. Kevin Castel, U.S.D.J.

MEMORANDUM AND ORDER

In this action invoking this Court's jurisdiction by reason of diversity of citizen- ship, Andrew Danyluk, a citizen of Massachusetts, alleges that Jonathan L. Glashow, M.D., P.C. ("Glashow"), a corporation organized under the laws of New York with its principal place of business in New York, has been unlawfully holding over in an office condominium apartment since March 1, 2006. Danyluk's complaint seeks a declaratory judgment that Glashow is in default under a contract to purchase the condominium from Danyluk and that Glashow is wrongfully occupying the condominium. Danyluk also seeks the difference between the down payment and the contract price, $6,000 per month for occupancy of the premises during the holdover period and attorneys' fees.

These are my findings of fact and conclusions of law after trial, a trial in which Glashow did not attend or participate. Danyluk is entitled to a declaratory judgment that Glashow is in default under the contract of purchase and that Glashow's possession of the condominium is wrongful. Danyluk is also entitled to injunctive relief ejecting Glashow from the condominium. Danyluk is not entitled to attorneys' fees under the contract nor is he entitled to the difference between the down payment and the contract price.

Background

This action was commenced on October 4, 2006. Glashow was served on October 20, 2006. (Doc. # 3.) The case is designated for the Court's Electronic Filing System which provides remote access to the docket sheet and copies of orders in .pdf format as well as email notification of docket entries to attorneys who have properly registered.

An initial case management conference was scheduled for January 12, 2007, but was adjourned at the request of Glashow's attorney for health reasons. (Doc. # 5.) On March 1, 2007, Danyluk's attorney advised the Court that Glashow's attorney had not fully recovered and sought and was granted a further adjournment of the conference. (Doc #6.) On April 13, 2007, the conference was held and a schedule was entered as an Order of the Court ("April 13 Order") which set July 31, 2007 as the date for completion of fact discovery and September 15, 2007 for the completion of expert discovery. (Doc #7.) As noted in the April 13 Order, the next pre-trial conference was scheduled for August 3, 2007 at 10:00 a.m. (Id.)

On August 3, 2007, counsel for Danyluk appeared, but Glashow's counsel did not. (Minute Entry for Aug. 3, 2007.) I put the conference over to September 28, 2007. During that conference, which was after the close of fact and expert discovery, I scheduled this case for trial on Monday, November 26, 2007 at 10:00 a.m. (Minute Entry for Sept. 28, 2007.) Plain-tiff's counsel indicated that he might seek to withdraw as counsel for reasons unrelated to the scheduling of the trial and was instructed to proceed with his motion if that was his desire. In this non-jury case, I instructed plaintiff's counsel to submit witness declarations for the plain-tiff's direct case by November 4, 2007 and defendant's counsel to do the same for defendant's case-in-chief by November 14, 2007. (Id.) The joint pretrial order, proposed findings of fact and conclusion of law and any trial memoranda were all due November 14, 2007. (Id.) Although the Court never received a motion to withdraw from plaintiff's counsel, an additional attorney appeared on behalf of Danyluk on October 31, 2007. (Doc. # 9.)

When none of the ordered materials had been filed by November 14, 2007, I issued an Order on November 15, 2007 stating:

Because neither party complied with the foregoing directions, I assume the case has settled. If that is the case, I direct that a fax letter be sent to chambers forthwith so that I can remove the scheduled trial from my calendar. If the case has not settled, I direct the parties to forthwith comply with my directives. The case remains scheduled for trial on November 26 at 10:00 A.M. (Order of Nov. 15, 2007; Doc. #10.) No party objected to the Order and no party complied with the Order. I received nothing.

On November 20, 2007 at 2:28 p.m., I received a fax from counsel for Glashow who expressed concern that Danyluk's counsel had failed to file a motion to withdraw, a matter which should have been of relative indifference to him, particularly in view of the additional counsel's appearance for Danyluk. He also complained of the new attorney's "failure to send to the undersigned any of the documents your Honor requested to be sent prior to trial." (Letter of Nov. 20, 2007.) Lest there be the slightest bit of confusion as to whether the November 26, 2007 trial date remained in place or the consequence of non-appearance, I entered a further Order as follows:

I expect counsel of record for plaintiff and defendant to be ready for trial as scheduled, i.e. November 26 at 10:00 a.m. in Courtroom 12C. The parties are on notice that the Court will dismiss the complaint in the case of the plaintiff or strike the answer in the case of the defendant if the party does not proceed as indicated. (Order of Nov. 20, 2007; Doc # 11.)

Danyluk and his counsel appeared for trial on November 26, 2007. Glashow and his counsel did not. Danyluk testified as did Edmund F. Wolk who had been both the original counsel of record in this action and also the attorney who negotiated the underlying purchase agreement.

Three days later, Glashow's counsel faxed to the Court a letter in which he asserted that he did not believe he or his client needed to appear for trial because he had spoken to Danyluk's new attorney on November 21, 2007 who said he would appear on November ...


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