The Rogak Report: 07 July 2005 ** No-Fault - Sanctions **
- NO FAULT ATTORNEY WHACKED WITH $34,000 SANCTION FOR SUBMITTING
ALTERED DOCUMENTS TO COURT, WHO COMPARES ATTORNEY TO "THREE CARD
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
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
"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
"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
"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
"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
"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
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!