Judge Charles J. Markey is asking for a public rehearing. The New York Law Journal and the ABA Journal ran a story detailing how Markey allegedly denied a motion or dismissed a case due to improper stapling. The story was picked up on various legal blogs, including this blog. However, Markey has written a letter to the editor insisting that the facts have been distorted and that this was no “case of first impression” of dismissal for negligent stapling. He seems to have a case.

Markey notes that he only denied a motion and did not dismiss the case. Moreover, it was a denial without prejudice and, most importantly, the stapling section was meant merely as an instruction for the future and not a basis for the holding.

Here is his letter:

October 02, 2009
I am writing you to set the record straight regarding an inaccurate and misleading item that appeared in the “News in Brief” column on page 1 of the Sept. 24 Law Journal.
Although a correction was printed on page 2 in your Sept. 25 edition, I have since been hit with rather negative comments and queries regarding the distorted description of my decision on a motion in the matter of Jones v. Fuentes. (The decision is published below.) It is hoped that this letter and the brief decision will more effectively correct the error and subsequent misunderstanding.
Contrary to the article, I did not dismiss the underlying action. I cited deficiencies in the unopposed papers submitted for a default judgment in a motor vehicle accident case allegedly resulting in injury to plaintiff. A lengthy written decision was unnecessary, and it was, therefore, brief and to the point. And, please note, the motion was denied, without prejudice with leave to renew upon submission of proper papers.
What excited everyone’s attention was the reference to the drawing of blood as the result of sloppy assembly of the papers. The commentary in the decision was meant to be instructive and cautionary. That’s all.
Charles J. Markey
The author is a Queens Supreme Court Justice.

Here is the correction published by the journal”

Correction
September 25, 2009
A News in Brief item yesterday, “Lawyer’s ‘Poor’ Stapling Provokes Motion’s Dismissal,” incorrectly implied that Queens Supreme Court Justice Charles J. Markey dismissed a complaint on the basis of poor stapling. Rather, Justice Markey denied a motion for default judgment. In addition, he cited two other grounds for rejecting the motion: the notice of motion was not signed by counsel and the papers lacked any affidavit by the plaintiff as to her injuries.

While the court did elevate stapling to the inclusion in an opinion (which why it was legitimately notable for the journal), he was listing the failings of counsel in the case and not basing the decision on stapling. Indeed, the motion appears properly dismissed based on the first two findings. However, this will mean that Markey will not be offered the “Jurist of the Year” Award by the National Fasteners Association.