Stayed Suspension Terminated

A six-month suspension for neglect of medical malpractice and dental malpractice cases while serving a stayed one-year suspension has been imposed by the New York Appellate Division for the Fourth Judicial Department.

Dental case

Respondent admits that, although the trial court directed the plaintiff to file a note of issue on or before March 7, 2018, respondent did not file the note of issue until January 2019. Respondent further admits that, in February 2019, opposing counsel moved to dismiss the complaint or, in the alternative, vacate the note of issue on the grounds that respondent had failed to comply with discovery deadlines or file the note of issue in a timely manner. Respondent admits that, in March 2019, the trial court issued a decision granting the motion to dismiss and noting that respondent had engaged in a “clear and persistent pattern of delay” and was “seemingly unapologetic” for the delay. Respondent admits that his client did not learn of the unmet discovery deadlines and the defendant’s motion to dismiss until after the trial court granted the motion and dismissed the complaint.

Med mal case

Respondent admits that, in July 2013, he filed on behalf of the client a civil complaint against three defendants, including a physician and a hospital that were allegedly involved in the malpractice. Respondent admits that, after the hospital moved for summary judgment on grounds that included respondent’s failure to file a note of issue in a timely manner, respondent advised the client to discontinue the action. Respondent admits that, although he subsequently executed and filed a stipulation of discontinuance on behalf of the client, he failed to provide the client with a copy of the stipulation. Respondent further admits that, although he believed the client had agreed to discontinue the action, the client subsequently contended that she believed that respondent had entered into a settlement.

Mitigation

In determining an appropriate sanction, we have considered that respondent’s misconduct set forth in the joint motion caused harm or prejudice to his clients. We have also considered respondent’s statement in mitigation that the misconduct occurred during the same time period as the misconduct that gave rise to the one-year stayed suspension imposed by this Court in 2019, which occurred while respondent was overwhelmed by a busy caseload, law office staffing problems, and family difficulties (see Cote, 171 AD3d at 171). Accordingly, after consideration of all the factors in this matter, we conclude that the previously imposed one-year stayed suspension should be terminated and respondent should be suspended from the practice of law for a period of six months.

(Mike Frisch)