The Rogak Report: 28 Dec 2004 ** No Fault - Affirmations **
- COURT FINES NO FAULT LAWYER $35,000 FOR DECEPTIVE PRACTICES
Freedom Medical Diagnostic PC a/a/o Freddie Estrella v. General
Assurance Co. et al., (District Court, Suffolk County 2004 ) (Index
no. HUC 1835/03)
A hearing was held on November 19, 2004 to address "certain ethical
concerns raised by irregularities in the papers submitted by
plaintiffs' counsel," stated the Court. Plaintiff's attorney Edward
Shapiro and his associate Jason Moroff appeared at the hearing as
directed, as well as counsel for the defendants. The plaintiffs moved
for summary judgment in each of these seven actions for assigned
first-party no-fault benefits. Each of the plaintiffs' motions for
summary judgment contains an Affirmation by Edward Shapiro in which
Mr. Shapiro affirms that the plaintiff's "bills" were mailed on a
particular date by "Edward Shapiro, Attorney at Law." This
Affirmation was offered to establish the timely mailing of each
plaintiff's no-fault claim as part of that plaintiff's prima facie
In response to Mr. Shapiro's Affirmation, defendants Progressive
Northeastern Insurance Company and General Assurance Co. have cross-
moved for summary judgment and to disqualify Edward Shapiro as
attorney for the plaintiffs under the witness-advocate rule, set
forth at Disciplinary Rule 5-102 of the Code of Professional
Responsibility (22 NYCRR 1200.21) on the ground that Mr. Shapiro's
testimony is necessary to establish a material element of each
plaintiff's cause of action.
The matter was set down for a hearing after it was noted that there
were "obvious differences in the signatures of Mr. Shapiro and his
associate, Mr. Moroff, in papers filed with the court, and that
affirmations submitted by Mr. Shapiro and Mr. Moroff contained
patently contradictory and misleading language." Specifically, Mr.
Shapiro's affirmations in support of summary judgment indicated that
he personally mailed each plaintiff's no-fault claim, while Mr.
Moroff's affirmations opposing disqualification stated that a non-
lawyer employee of the law firm submitted the claims and that "at no
time does an attorney submit the bills to the insurance carrier."
These irregularities, stated the Court, "are of particular concern
given the fact that Mr. Shapiro's law firm has commenced hundreds of
actions in the Third District Court on behalf of medical providers
for assigned first party no-fault benefits, and has brought similar
motions for summary judgment in many of those actions. The stated
purpose of the hearing was to determine whether counsels' actions
constituted sanctionable conduct under 22 NYCRR 130-1.1(a) .
At the hearing, both Mr. Shapiro and Mr. Moroff stated that the
plaintiffs' bills were not actually mailed by Mr. Shapiro, but by a
representative of the firm. It was their contention that at the time
the bills were mailed to the carriers, the name of the firm
was "Edward Shapiro, Attorney at Law." In January of 2004,the firm's
name was changed to "Edward Shapiro, P.C." Both maintained that the
office inadvertently failed to change the template on the
attorney's "Affirmation" of mailing to read "Bills were sent... by
Edward Shapiro, P.C."
Counsels for the plaintiff contend that it was not their intent to
deceive the court and expressed their apologies if that impression
was given. But, "Although it is Mr. Shapiro's assertion that it was
not his intent to deceive the Court as to who actually mailed the
claims to the carriers, after reviewing the testimony of both Mr.
Moroff and Mr. Shapiro, this court is constrained to conclude
otherwise. It is this Court's opinion that Mr. Shapiro engaged in a
pattern of behavior which can only be characterized as a deliberate
attempt to mislead the court."
"Each affirmation in support of the motions for summary judgment sets
forth the elements for establishing a prima facie case for a no-fault
claim. The inclusion of the Affirmation of Mailing in each of these
cases conclusively establishes the awareness by counsel that such
documentation was an important element in determining whether summary
judgment was appropriate. Moreover, it is inconceivable that Mr.
Shapiro, whose practice involves substantial work in the no-fault
field, was unaware that an affirmation or affidavit of mailing must
be submitted by the person who actually did the mailing."
"The assertion that it was not their intent to deceive this court is
further unbelievable upon this court's review of Mr. Moroff's
Affirmation... The Affirmation of Mailing by Mr. Shapiro states that
the bills were mailed by 'Edward Shapiro, Attorney at Law.' Mr.
Moroff in his Affirmation states 'In this instance Edward Shapiro,
P.C. did not submit the bill in question.' However, in paragraphs 12
and 13, it states than an employee of their office mailed the bill.
In raising these arguments in opposition to disqualifying Edward
Shapiro, Esq. as attorney for plaintiff, it would stand to reason
that his reference in paragraph 6 to 'Edward Shapiro, P.C.' is in
fact Edward Shapiro, Esq. Notwithstanding the protestations of Mr.
Moroff and Mr. Shapiro to the contrary, the language utilized by Mr.
Shapiro, i.e., that the bills were mailed by 'Edward Shapiro,
Attorney at Law,' can only be construed as a representation that Mr.
Shapiro personally mailed the bills. There can be no doubt that the
statements purportedly made by Mr. Shapiro in these 'affirmations'
were deliberately false," stated the Court.
"Equally disturbing to this court is Mr. Shapiro's admission that
none f the documents purportedly executed by Mr. Shapiro were, in
fact, executed by him. Clearly, Mr. Shapiro cannot once again contend
that it was not his intent to deceive the court. Pursuant to the
Rules of the Chief Administrator, all documents prepared by counsel
that are "served on another party or filed or submitted to the court
shall be signed by an attorney . . . There was not a single excuse or
good cause offered by counsel for his failure to execute any of these
documents. Mr. Moroff similarly admitted that on at least two
occasions he instructed someone else to sign his name to documents
submitted to the court even though he was present in the office. The
original signature by counsel is intended to certify that the
presentation of the papers or the contents contained therein are not
frivolous... The purported unintended error in the Attorney
Affirmation of Mailing may be considered a mistake or an inadvertent
error on the first few submissions of these similar motions. However,
had counsel reviewed the moving papers, the error would have or
should have been detected and corrected. The acknowledgment that the
error was only corrected most recently, after this hearing was
ordered, demeans the integrity of this court and the profession. The
methods practiced by Mr. Shapiro and Mr. Moroff strongly suggest a
greater interest in their own monetary benefit than in the integrity
of the documents submitted."
Finally, Mr. Moroff and Mr. Shapiro contend that whether the
affirmation of Mailing satisfies a requirement of their prima facie
case is no longer at issue once the carrier acknowledges receipt of
the bill on the NF-10 Denial of Claim form. But as the Court pointed
out, in several of the causes of action at issue the insurer had not
acknowledged receipt of the bill.
In any event, held the Court, "such arguments are not relevant to the
regarding counsels' pattern of misrepresentation. An attorney, as an
officer of the court, has an ongoing professional duty to state the
truth in papers filed with the court.... In acknowledgment of the
attorney's awareness of this duty and of the consequences for making
a false statement, CPLR 2106 authorizes the attorney to simply sign
her own statement and to affirm its truth subject to the penalties of
perjury. Such affirmation has the same effect as an affidavit sworn
to before a notary public."
"An 'affirmation' of an attorney which has not been signed by the
attorney is of no force and effect. Moreover, an affidavit purported
to be that of one person, but signed by another is worthless and a
nullity. A falsely subscribed attorney's affirmation is not only
worthless, but may be sanctionable as well."
In the court's opinion, "the failure of counsel to sign the
affirmations filed with this court in each of these seven actions,
without good cause shown, nullifies the motions. Plaintiffs' motions
for summary judgment are accordingly denied."
Also, "in each of the actions the original summons and complaint, as
admitted by counsel, do not bear his true signature. The fraudulent
signatures offered by counsel in feigned compliance with the
requirements of 22 NYCRR §130-1.1-a are part of the pattern of
deceptive practices engaged in by Mr. Shapiro and Mr. Moroff which
has prejudiced the defendants in these actions. The Court in its
memorandum decision in these actions dated October 24, 2004 apprised
Mr. Shapiro and Mr. Moroff of the differences in attorney signatures.
This irregularity was one of the issues for which the hearing was
scheduled. With full knowledge of the false signatures on the summons
and complaints, there was never an attempt or offer to correct the
signatures in each action. Consequently, the complaint in each action
shall be dismissed without prejudice."
"Viewing the actions in totality," concluded the Court, "this court
finds the actions of
Mr. Shapiro and Mr. Moroff to be sanctionable under 22 NYCRR §130-
1.2 . Despite the comments by Mr. Moroff and Mr. Shapiro, these
actions demonstrate an intent to deceive the court and their
adversaries. Material factual statements were falsely presented to
this court. This conduct is deemed frivolous and sanctionable. The
egregious actions by counsel cannot be ignored. A total fine of
$35,000 ($5,000 for each action) is hereby assessed against counsel
for the plaintiffs to be paid to the Lawyer's Fund For Client
Protection, 119 Washington Ave., Albany, New York 11210.
This constitutes the order and decision of this court.
Thanks to Eric Mallinson of The Hartford for bringing this decision
to my attention -- Larry Rogak