Vacated Admonition Becomes A Censure

The New York Appellate Division for the First Judicial Department has imposed a public censure for an attorney’s mishandling of two personal injury matters

The parties have stipulated to the following facts. Respondent was retained by T.E. to represent her in a civil action for injuries resulting from a car accident that occurred in April 2010. T.E. thereafter retained respondent to represent her and her mother, M.E., in connection with a separate motor vehicle accident which occurred in October 2010. At a February 2011 meeting, respondent informed T.E. and M.E. (the clients) that their respective injuries in the October 2010 accident did not meet the threshold standard for serious injury. The clients disagreed and advised respondent that they would retain new counsel.

Having not been substituted, respondent commenced an action in October 2013 based upon the October 2010 accident in order to preserve the clients’ rights. Contrary to the representations that he made to his clients, respondent alleged in the verified complaint that both women “sustained serious injuries as defined by §5102(d) of the Insurance Law of the State of New York.” Respondent affirmed the truthfulness of this complaint under penalty of perjury.

Respondent did not serve the defendants until March 2015. In April 2015, the defendants filed an answer asserting lack of personal jurisdiction as an affirmative defense. In May 2015, the defendants moved to dismiss the complaint because respondent failed to properly serve them within 120 days after commencement of the action pursuant to CPLR 306-b.

In June 2015, respondent opposed the defendants’ motion and cross-moved for an extension of time to effect service. Respondent argued that he had attempted to timely serve the defendants but was unable to do so because the defendants’ homes were gated. He conceded that his law office failed to follow up with the process server and incorrectly marked the complaint as timely served. He contended that his inability to timely serve defendants was the result of a “procedural irregularity” and “not jurisdictional.” Lastly, he submitted that “new evidence concerning deterioration of [the clients’] medical and economic conditions rise to a level entitling them for a grant to renew the motion.”

In January 2016, the trial court granted the defendant’s motion to dismiss. The court noted that respondent had proffered no proof of timely service.

In February 2016, respondent moved for leave to reargue and renew, arguing that the court overlooked and misapprehended matters of law and fact. Specifically, respondent asserted that plaintiffs made multiple efforts to serve the defendants within the 120 days of the filing, using two process servers. However, he provided no evidence to support these claims. In July 2016, the court denied the motion.

In November 2019, the clients filed separate complaints against respondent with the Committee where they alleged that respondent, inter alia, failed to inform them that he had filed a lawsuit pertaining to the October 2010 accident.

In respondent’s answer to the complaints, he stated that he commenced the action for the October 28, 2010 accident on October 11, 2013 but did not pursue the action in accordance with his clients’ directions “because the injuries claimed in said action were duplicative of those in the April 4 [sic], 2010 accident.”

Respondent had received an admonition that he moved to vacate.

He was then deposed

In June 2021, respondent appeared for a deposition before the Committee. He admitted in his deposition testimony that he did not think his clients’ injuries would meet the threshold necessary for an action pursuant to §5102(d) of the Insurance Law of the State of New York. When asked to explain his failure to serve the complaint, respondent testified that “once you serve [the complaint] . . . [y]ou have to really work the case.  I didn’t want to work it given the issues.” Respondent admitted that he never moved to withdraw as counsel.

As to respondent’s papers submitted in response to the motion to dismiss, the Committee asked respondent what new evidence he had concerning the deterioration of his clients’ medical conditions. Respondent testified that this was just “boilerplate language to get them [the clients] in the door . . . I was probably playing on the sympathy of the court to grant [the clients an extension of time to effect service].”

He was then charged with six rule violations. (Mike Frisch)