Slip-and-Fall Slip Up

The New York Appellate Division for the Second Judicial Department has suspended an attorney for three years 

The respondent is a partner at the law firm Blyer & Kurland, P.C. (hereinafter the law firm). In February 2018, the law firm represented Chiriboga in connection with a slip-and-fall accident that occurred on February 10, 2017. The law firm was to commence an action on Chiriboga’s behalf. The statute of limitations for the cause of action expired on February 10, 2020, and the law firm failed to commence an action before the statute of limitations expired.

On or about February 18, 2020, the respondent filed a summons and complaint in Supreme Court, Queens County, titled Chiriboga v Chopenko (Index No. 702814/2020). In the complaint, the respondent asserted that Chiriboga’s accident had occurred on February 20, 2017, rather than February 10, 2017. The respondent also signed the name of another attorney, Andrew Staulcup, to the summons, complaint, and the attorney’s verification without Staulcup’s knowledge or consent. On or about June 13, 2020, the respondent served the complaint on the defendant. On or about January 27, 2021, the respondent executed a stipulation of discontinuance with prejudice in the action without Chiriboga’s consent. The respondent did not notify Chiriboga until on or about February 7, 2022, that her case had been discontinued with prejudice. As of March 31, 2022, the respondent had not informed Chiriboga that she may have a legal malpractice claim against the law firm.

Respondent’s evidence

The respondent and Staulcup met Chiriboga through her brother. According to the respondent, Chiriboga’s brother was the “family representative” and the respondent communicated with the brother about various legal matters for which the family had retained the law firm. However, according to the respondent, when Chiriboga was injured in the slip-and-fall accident, she called Staulcup to retain the law firm, and Staulcup alone was handling this case.

According to the respondent, a few days after February 10, 2020, shortly before Staulcup left for vacation, Staulcup placed a copy of the summons and complaint for the Chiriboga matter on the respondent’s desk. On the summons, Staulcup had written, “SOL Has Been Blown.” The respondent testified that he subsequently had a conversation with Staulcup regarding the date of the accident, and the respondent continued to believe that the date of the accident was February 20, 2017. Staulcup left for vacation, and the respondent retrieved a copy of the summons and complaint from the law firm’s computer, changed the complaint to state that the date of the accident was February 20, 2017, signed Staulcup’s name on the summons, complaint, and attorney’s verification, and filed those documents in the Supreme Court, Queens County, on February 18, 2020.

The respondent testified that he kept Staulcup’s name on the court filings because Staulcup had drafted the complaint and the respondent and Stualcup had an understanding that they could sign the other’s name if one of them was not in the office. The respondent testified that although Staulcup, who had been strictly handling Chiriboga’s slip-and-fall case, had informed the respondent that the date of the accident was February 10, 2017, the respondent did not call Chiriboga to verify the accident date because the respondent was “embarrassed” that he did not know about the case. The respondent figured that if Staulcup was correct and the date of the accident was February 10, 2017, then the case would not proceed. If the respondent was correct and the date of the accident was February 20, 2017, the respondent would avoid embarrassment and the case would proceed. During his examination under oath (hereinafter EUO), the respondent testified that he did what he thought was best for the client and that his actions were “not to benefit [himself] in any way.”

When Staulcup returned from vacation, he discovered that the respondent had signed Staulcup’s name on the summons, complaint, and attorney’s verification, and expressed his disapproval. The respondent testified that he and Staulcup had a short conversation during which the respondent explained that signing Staulcup’s name to the court filings was “the simplest way to get it done.” The respondent admitted that Staulcup told the respondent not to serve the summons and complaint on the defendant, but the respondent did so anyway because Staulcup never provided evidence that the respondent was wrong about the date of the accident.

On or about October 19, 2020, Staulcup produced an email from Chiriboga stating that her accident had occurred on February 10, 2017. At the respondent’s EUO, he contended that this email was “fictitious.” Nevertheless, after the respondent was shown the email, he testified that he had notified the parties at a preliminary conference on November 20, 2020, that the statute of limitations had expired. A stipulation of discontinuance dated January 27, 2021, was not filed until March 19, 2021.

Sanction

In view of the evidence adduced at the hearing and the respondent’s admissions, we find that the Special Referee properly sustained all seven charges in the amended petition. Accordingly, the Grievance Committee’s motion to confirm the Special Referee’s report is granted. In determining an appropriate measure of discipline, we have considered the respondent’s prior disciplinary history for similar misconduct, his lack of remorse, the injury to the client, and the mitigation provided by the respondent.

Under the totality of the circumstances, we find that the respondent’s conduct warrants a suspension from the practice of law for three years.

(Mike Frisch)