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The Rogak Report: 07 July 2005 ** No-Fault - Sanctions **

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  • Lawrence Rogak
    NO FAULT ATTORNEY WHACKED WITH $34,000 SANCTION FOR SUBMITTING ALTERED DOCUMENTS TO COURT, WHO COMPARES ATTORNEY TO THREE CARD MONTY DEALER PDG Psychological
    Message 1 of 1 , Jul 7, 2005
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      NO FAULT ATTORNEY WHACKED WITH $34,000 SANCTION FOR SUBMITTING
      ALTERED DOCUMENTS TO COURT, WHO COMPARES ATTORNEY TO "THREE CARD
      MONTY" DEALER

      PDG Psychological PC v. State Farm Ins. Co., NYLJ 7/07/05 (Civil
      Court, Queens County) (SIEGAL, j)

      This decision involved 22 no-fault cases, consolidated for the
      purpose of determining what, if any, sanctions should be imposed
      against Plaintiffs' counsel Alden Banniettis, Esq.

      In the first six cases it was noted that the dates of the
      affirmations of service, affirmed by the plaintiffs' counsel
      were "considerably earlier" than the date indicated for the execution
      of the annexed affidavits, which Plaintiff's counsel witnessed as a
      notary public. Then similar irregularities and more "creative
      filings" were discovered in the other cases.

      "As is clear from the testimony adduced at the hearing and more fully
      set forth below, the conduct of Plaintiffs' counsel, to wit, filing
      facially false affirmations of service, filing papers with the court
      that are wholly different from the documents served upon his
      adversary, and altering (or knowingly submitting altered) documents
      apparently for the purpose of attempting to circumvent prior judicial
      decisions must be held up for opprobrium and not tolerated by the
      courts."

      On the Court's own motion and "after a hearing where the attorney had
      a full opportunity to be heard and to submit evidence in support of
      his position," sanctions in the amount $34,000 were imposed against
      attorney Banniettis.

      "The record revealed, as it became apparent to the court, several
      different types of knowing violations of court rules, the Civil
      Procedure Law and Rules and ethical considerations and rules of
      professional conduct, all of which deceived the court and plaintiffs'
      adversaries. In each of the initial six matters, plaintiff served
      upon defendants a two page affidavit in support of its motion,
      executed prior to the purported date of service. Plaintiffs' attorney
      notarized the affidavit of his client's representative and executed
      an affirmation of service. Invariably, those motion papers (from
      affirmation through the affidavit) were number in sequence until a
      separate 'jurat' page. Significantly, the court, prior to the return
      date of the within motions, had previously rejected similarly
      questionable submissions by plaintiffs represented by Alden
      Banniettis, Esq."

      "However, in these instances, Plaintiffs' attorney went a step
      further, perhaps in response to the court's prior rulings or an
      earlier hearing before the Hon. Edgar Walker, whereupon it came to
      the court's attention that Plaintiffs' attorney removed the earlier
      executed affidavit (which was served upon his adversary) from the
      original motion papers to be filed with the court and replaced same
      with a one page affidavit, substantially different in its language
      and dated well after the affirmation of service. No proof of service
      of these replacement affidavits was filed with the court."

      "For example, the Plaintiff served a two page affidavit where the
      affidavit was denominated as Page 10 with a separate jurat page dated
      March 22, 2004, but the papers filed with the court contained a one
      page affidavit, no page numeration, dated May 12, 2004 with
      substantially different contents. Incredibly the Plaintiff, in yet
      another matter, served motion papers including a two page affidavit
      of Bryan Siegel notarized the same day as the purported service, but
      the affidavit filed with the court was from an entirely different
      individual and provider executed after the purported service upon
      defendant. Meanwhile, in others, the affidavits served upon the
      adversary were undated and on two pages, and yet the papers filed
      with the court contained a single page, dated affidavit."

      "Significantly, none of the defendants were aware of the bait and
      switch until either the conference held in Part 40/41 on the return
      date of the motion or upon the instant hearing. CPLR §2214(c)
      mandates that '[o]nly papers served in accordance with [CPLR §2214]
      shall be read in support of . . . the motion, unless the court for
      good cause shall otherwise direct'. Although given an opportunity to
      assist the court in understanding what appears to be a blatant
      attempt to deceive the court and plaintiffs' adversaries, Mr.
      Banniettis merely states 'I stand by my word' or 'My testimony is my
      proof' and that those documents were served upon the defendants; and
      given an opportunity to provide documentary proof as to the service
      of the subsequent affidavits, apparently submitted to the court but
      not served, no documentary proof was forthcoming. Plaintiffs' counsel
      continued to provide bald, conclusory statements as to his actions
      with respect to motion practice."

      "Plaintiffs' attorney also knowingly submitted altered documents to
      the court, such documents being the very bases of the lawsuits
      commenced herein. A proper proof of claim is mandated as a building
      block of a provider's prima facie case seeking reimbursement under
      New York State's No Fault Insurance Law. Consequently, the courts
      require a copy of the proof of claims as documentary proof.
      Apparently to avoid denial of its summary judgment motion, the claim
      forms were altered after service of motion papers upon its adversary
      (the served papers were not so changed), and, it follows logically,
      after the initial submission of the claim to the insurance carrier.
      Each claim form (NF-3) was altered by either adding a 'signature' or
      the corporate name with the word 'by' next to the provider's
      signature, apparently to signal legal authority."

      "In some instances, Plaintiff's attorney combined both, by serving
      upon defendant papers including a two page affidavit denominated as
      page 14 with a separate undated jurat page and a duplicate of the
      claims form actually filed with the defendant, but filing with the
      court substantially different papers including a one page affidavit,
      dated and signed, and an altered claims form."

      "Plaintiffs' attorney admitted to knowing that the documents were
      altered and stated they were altered (by his clients) because the
      court, in essence, had previously rejected motions containing
      unsigned claims forms or claims forms with other defects."

      Rule 130-1 provides that frivolous conduct is conduct, that, among
      other deficiencies, "asserts material factual statements that are
      false"

      "Every pleading, written motion, and other paper, served on another
      party or filed or submitted to the court shall be signed by an
      attorney . . . ." and that signature "certifies" that
      the "presentation of the paper or the contentions therein are not
      frivolous."

      "Accordingly, a false certification alone is sufficient grounds for
      the imposition of sanctions. In the instant matters we find both
      false 'certifications" and false affirmations of service, both
      executed by Alden Banniettis. Moreover, the documents were
      misleading, and improper material was submitted knowingly by this
      attorney. The court and Plaintiffs' adversaries were both initially
      deceived and, through such deception, Mr. Banniettis violated the
      court rules as well as the CPLR and sought to affect the decision
      making process of the court. Although the Court has not addressed the
      merits of many of the underlying motions, it simply cannot get beyond
      the false and perhaps perjurious filings. Plaintiffs' counsel has
      provided no good faith reason for falsifying documents or for
      submitting documents to the court never served upon his adversaries.
      The only conclusion the court can conjure is that Plaintiffs'
      attorney purposely sought to deceive his adversaries and improperly
      influence the court's decision."

      "As such, the court is constrained, by this attorney's actions and
      failure to justify or explain in any way his conduct, to impose
      sanctions."

      "The course of conduct displayed by Plaintiffs' counsel is the
      equivalent of street corner three card Monty with the court and
      adversaries forced to guess which set of papers contains the proper
      submission and when Mr. Banniettis is 'busted' at one corner, he
      reassembles on to another corner with yet another type of
      impropriety. The court is simply not willing to play the game. In the
      instant matter, the measure of sanctions must take into account the
      seriousness of the unrebutted improprieties, the proven intent to
      deceive both court and adversaries and the magnitude of the conduct."

      "Accordingly, the court imposes sanctions against Alden Banniettis in
      the amount of $4,000 for each of the six initial matters in which the
      court found false affirmations of service that included affidavits
      dated after the date of such affirmation and $1,000 for each other
      matter in which the court found sanctionable conduct payable to the
      Lawyer's Fund for Client Protection for a total of $34,000 and
      directs that the Clerk enter judgment against him pursuant to 22
      NYCRR §130.1-2. The Court further directs that a copy of this
      decision and order together with a copy of the transcript of the
      within hearing be forwarded to the Disciplinary Committee, Second
      Department."

      Comment: I don't know why, but the first thing that came to my mind
      after reading this decision was the scene in "Casablanca" where
      Louie, the Prefect of Police, blows his whistle in the Cafe Americain
      and says to Rick, "I'm shocked. Shocked! To find that there is
      gambling going on in this establishment." Then the croupier hands
      him a bundle of cash and says, "Your winnings, sir." Louie
      mumbles "Thank you" as he stuffs the cash in his jacket pocket.

      Dishonesty going on in no-fault litigation in the courts of our great
      city? Is nothing sacred? Oh, the humanity!

      Larry Rogak
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