the next two cases which will be heard simultaneously smalls versus county of suffolk is council here for county of suffolk ok thank you ready decision on the underlying motion which i was seeking to develop the record to see whether less sanctions whether the lesser sanctions could be discussed with the court could actually hear what it actually happened that day which was just that i was appearing in two other cases i'm a sole practitioner and made a mistake think i got there by eleven fifteen and didn't call the no judge i was in court and then i called i check my messages and the end of the court says and it's and and it's and it's decisions not the rule sixty motion that made efforts to reach the court that's not accurate it was actually my colleague to the right that actually made two efforts to call me right when the case was called to tell me where the case is being called and secondly if the court had just dismissed the case not on his own motion but sue sponsor moments afterwards sixty first yes miss yes and then after the final judgment after the rule sixty motion had been denied and the court issued its decision that's when i argued for the first time the rule forty one b analysis and together with the rule sixty analysis and i'd like to direct the court for special like to direct the court to the case of harding versus federal reserve bank and i think that case is the most on point case that's been set forth in the entire brief and resubmitted by all the by any of why didn't you find somebody to cover why didn't or why did you do something when you realized you were going to be late but there was another attorney that had covered this case for me before and he was away on vacation that day and the only person to cover the criminal paralegal where i could call the office i could say can somebody get ahold of this individual i would have to be in court of the time eight in the morning you call the clerk's office and say would you please tell john for years i have to be in another cool criminal matter the court could entertain finding me or side that the court could entertain the district court could entertain sanction me directly and not take it on my client's who threw a grenade exploded there he said yes let's talk about how much well i can tell you right now there is a  five defendant witnesses we were all done with our discovery demands and we complied with every other discovery as far as you know as far as i know and they never bought a motion to question how about paying the county fees or preparation for the who went to the expense of paying for the court reporter for the five deposition witnesses and for bringing this case in the first place and initially retaining me i don't there is no case that's been set forth either by the county or by the district court that justifies dismissing this case under these circumstances no t if you look at all the other cases there are really egregious delays and sometimes it seems well fall and other times the kids are totally neglected this is not the case here to do a situation like this since then i don't want to know the details but yes or to show up on time absolutely absolutely but i'm definitely more congress of the now but i think the court should be aware that my case was dismissed when i was fifteen minutes late for the calendar call i've never heard that happen in state court or in a court the record in this case just in the record of the case is there some indication yes some up for us there was some property damage and some alleged stolen property what's the value under ten thousand dollars for those items  proportionate based upon judge feuerstein reasoning in her alternate denial of the sixty p motion wherein she noted that to create the exceptional circumstance that would allow for the  sixty to be granted that evidence should be convincing it's presented to the court and judge you seem found in her decision sixty b they that again evidence should what should be convincing should be highly convincing evidence of of the reason why the moving party was unable to attend your the reason why the rule sixty b should be granted nobody's nobody is contesting whether a sanction was appropriate and even a serious sanction but the question is whether dismissing the case in these circumstances is imposing a sanction which is well it's not so much that it's too serious that it's falling on the wrong person that it is that that we're an attorney has may lead to say an inexcusable failure to appear in time at the court in these circumstances it justified to dismiss the case and throw out the plaintiff's case rather than put a sanction on the attorney i appreciate that your honor what i was getting through is in judge feuerstein is decision she indicated that the reasons that the plaintiff's attorney gave she found to be not convincing and or they were in other words was careless with her time and that is an affront to the court and it should be sanctioned but the question as judge would not have said is did the sanction here fall on the wrong  your honor my view is it did not when essentially what judge furiously was saying his decision in all due respect to plaintiff counsel was that she didn't believe him when he submitted an affidavit for the reasons why it wasn't there she said it was unconvincing that on that and that standard i believe that what she decided was not an abuse of the citizen it's not convincing as a reason for having no one show up in court and not having sent a message to the court to explain that it's not a convincing reason it doesn't exculpate the attorney but i don't see how that that answers the other question as to whether it justifies the imposition of a sanction that consists of throwing out the pla would judge for steen have determined that an appropriate sanction here was dismissal with prejudice that's based on what she did at the conference and that would have been based on his failure to appear not having heard from him of the conference what does our jurisprudence say about what the court then does before taking the action that she took well and that is since it would be wrong for you want to terminations and the the court is always looking for any anything to consider other than the fact that he hadn't shown up he hadn't shown up it's not on the record counsel represented that i did and don't we like to know what's on the record so that we can make some assessment of how the district court has assessed these things and review that for abuse of discretion i just gesture when that there wasn't anything in the record at the time not a new recruit right not in the record but ultimately in her decision is not a problem so i think it would be a problem if it wasn't in the sixty b decisions she revisits that in the sixty b the session and addresses the concept of the rule forty one standards mostly looking at the the impact of the nonappearance on the time and resource  the court and she read visits that in the so there is some basis to evaluate why she dismissed that in the first instance there is but not one that she had before her at the time she made the ruling that that she put on the record no don't even live there but i've driven there once i don't even think that's possible i don't have to be in court church i'm so practitioner for whatever it's worth and i did and the only other there's another attorney that conferences case twice and in this case