Opinion
No. 98 Civ. 2466 JSR SEG.
August 7, 1998
Mr. Chaudhry Ali, Brooklyn, New York.
Avi Lew, Assistant Attorney General, Litigation Bureau, New York, City.
MEMORANDUM
* 1 I ordered on April 22, 1998 that Respondent serve within sixty days a copy of his answer to the habeas corpus petition herein and submit the transcript of the trial and copies of all briefs and decisions on appeal or in connection with proceedings pursuant to New York Criminal Procedure Law Article 440.
By letter dated June 19, 1998, just three days before the due date for his papers, Respondent's counsel asked for an extension of time until August 6, 1998. He explained that he needed "a reasonable period of time" to obtain and review the state court records and transcripts, for which he was "currently waiting." The letter did not indicate that Petitioner's consent had been sought nor even that a copy of the letter had been sent to petitioner. I note that petitioner is not incarcerated, lives in Brooklyn and is readily available.
On June 22, 1998 by memo endorsement I granted the extension in the following words: "Granted. No further extensions."
Respondent's counsel has now sent a letter dated August 5, and received yesterday, the due date for his papers, asking for a further extension to September 16. The reason given is that he is awaiting return phone calls from a court reporter.
Counsel's letter refers to the previous extension, but makes no mention of the plain language in that order: "No further extensions." No explanation is offered for why counsel waited until the day before his papers were due to seek this extension. Nor, once again, is there any indication that Petitioner's consent has been sought to this request.
First, when this Court issues an order that says "No further extensions," it means what it says. Counsel are expected to take such orders with the utmost seriousness. Unforeseeable circumstances may lead counsel on rare occasions to seek modification of the order. But it is not acceptable practice routinely to seek extensions, especially in the face of a clear and plain order saying they would not be granted.
Second, my rules of practice, Part I section E state: "All requests for adjournment or extensions of time must state . . . (4) whether the adversary consents and, if not, the reasons given by the adversary for refusing to consent." These rules, and those of the other judges of the Southern District of New York, are published in the New York Law Journal, and are also available at the courthouse, on the Internet, and from my chambers. Counsel practicing in this district, and especially the Attorney General's office, are certainly expected to know and follow the rules of the court. It is not acceptable practice to fail to comply with these rules, much less without any explanation for the noncompliance.
Third, the eve of when papers are due is not the time to ask for an extension. Counsel should have called chambers as soon as it became known that there would be difficulty in obtaining the transcripts on time. Waiting until the last minute, perhaps on the assumption that the request must then be granted because the alternative is default, is not acceptable practice.
*2 Finally, I note that it appears that the reason the extension is needed is that counsel has not made any diligent efforts to obtain the transcript and other papers in order to meet the court's deadlines. The letter of August 5 states that the transcript is not in the New York Supreme Court library because petitioner was represented by a private attorney at his trial. There is no indication whether that attorney has been contacted, or petitioner himself, both of whom may very well have copies. To place a call to a court reporter and simply await a return call in the face of a court-ordered deadline is hardly appropriate.
In other habeas corpus petitions before me, the Attorney General's office (including the Assistant assigned to this case) routinely seeks extensions on the eve or even after court-ordered deadlines often without good cause and generally without seeking consent of the petitioner despite the court's rules to the contrary. It is hereby ORDERED that Respondent is granted two additional weeks, until August 21, 1998, to submit his answering papers in full. Should this deadline not be met, a sanction of fifty dollars ($50.00) will be imposed upon Respondent, payable to Petitioner, for each day thereafter of noncompliance.
SO ORDERED.