Opinion
08/14154.
Decided February 15, 2011.
CHRISTOPHER S. CIACCIO, ESQ., of Counsel, Attorney for Plaintiffs, Rochester, NY.
HAGELIN KENT, LLC, MATTHEW J. ROSNO, ESQ., of Counsel, Attorneys for Defendants, Rochester, NY.
Following a directed verdict on October 13, 2010 after a liability only trial, the court scheduled a sanction hearing for November 16, 2010 regarding whether the defendant engaged in a frivolous liability defense (October 13, 2010 trial transcript pgs 99-101, Hearing notice dated October 26, 2010, written order signed November 15, 2010).
Prior submissions were received, and the hearing was held on October 16, 2010. No issue or objection was raised regarding adequacy of notice, or the conduct of the hearing.
Decision:
The Court finds that the defendant law firm of Hagelin Kent LLC engaged in a frivolous defense in violation of Rule 130-1.1(c)(1), (2), (3), and sanctions the law firm of Hagelin Kent LLC the sum of Ten Thousand Dollars ($10,000) to be paid to the Lawyer's Fund for Client Protection within 30 days of receipt of this order and decision.
Plaintiff's Pre-Trial Contention:
Plaintiff contended that he was proceeding east on Route 31 towards its intersection with Hamilton Street, which cross street was controlled by stop signs. Defendant was proceeding north on Hamilton Street, approaching the intersection northerly on plaintiff's right side. Defendant stopped at the stop sign, did not observe plaintiff approaching and entered the intersection without prior warning when plaintiff was 20' away causing a collision in a split second in the lane in which the plaintiff was proceeding. The front end of plaintiff's vehicle collided with the defendant's vehicle just past the defendant driver's door.
Defendant's Pre-Trial Contentions:
The differing contentions at issue here advanced by the defendant are that "the defendant had already entered the intersection and had nearly completed crossing the through street . . ." which intersection-crossing vehicle the plaintiff failed to observe, "until a split second before the accident." (Defendant's Trial Memorandum dated 10/11/10). "The plaintiff's vehicle hit the rear side of defendant's vehicle, which had almost completely crossed the roadway." (Ross letter dated 10/11/10). (underlining added).
Pre-Trial and Trial Evidentiary Proof:
The plaintiff had testified at the prior EBT as follows:
Q: When was the first time you remember seeing the other vehicle that was involved in the accident?
A: About a split second before I hit him. He pulled right out in front of me. (Underlining added).
A: We were probably where I saw him within 20' of each other. . . .
A: Mr. Ellis came right out in front of me when I was driving and I tried to stop in a split second. . . . (underlining added).
(Exam of plaintiff by defendant's counsel, page 10 3/20/10 EBT).
The defendant's EBT testimony also supported plaintiff's testimony as to how the accident happened. Defendant testified at the EBT that when he entered the intersection the plaintiff was so close that he (defendant) could not avoid being hit:
Q: Okay. The car that you had the accident with, did you see it before the accident happened?
A: If I had seen it. It wouldn't have happened. When I seen it, it was coming right in the side of me. . . .
A: What is was, when I come out, they come so close that I couldn't get out of the way of them.
(EBT pg 8 — defendant exam by plaintiff's attorney).
The trial testimony and evidence was consistent with the above pre-trial testimony. It was undisputed that the accident occurred in the first of three lanes on Route 31, which lane was closest to the curb, upon which the plaintiff was traveling easterly, and was the first lane into which the defendant entered. Nor was it disputed that defendant's vehicle was struck just past the driver's door.
Factual and Legal Misrepresentation:
Contrary to defendant's assertion, the accident did not occur after the defendant had "almost completely" crossed the intersection and was almost completely through it. Nor was there any proof to support that claim.
Rather, the accident was solely and wholly in plaintiff's lane of travel. Defendant's factual assertion that the defendant had been "almost through" or "nearly completed" the crossing to support his legal theory was patently false, and evidently so, before the trial. The defendant's attorney advised the court that the defendant at the time of trial was suffering from Alzheimer's, and accordingly knew that the defendant could not contribute any further to the evidence.
During two pre-trial conferences, one with the law clerk and the other with the Judge, immediately prior to trial, it was noted and pointed out that there appeared to be no valid defense on liability. The defendant's attorney insisted there was a valid defense but was vague on the factual basis. The Court then directed that the defendant, before trial began, to submit a statement of his contentions, which had been omitted in his directed trial submissions, and warned of the possibility of a frivolous defense. The plaintiff's attorney at that time also requested the Court to find a frivolous defense, and itemized the evidence to support his position that there was no triable fact or basis to contest liability up to that point, and none likely to be introduced at trial. (10/8/10 Ciaccio letter).
At the subsequent post trial motion for a directed verdict, after the evidentiary facts introduced at trial were as represented by the plaintiff, and not as represented by the defendant's attorney, the defendant's attorney conceded and abandoned his claim that defendant had almost completely crossed the intersection before the plaintiff arrived, and conceded liability of the defendant as a matter of law. However, he, nevertheless, continued to claim comparative negligence on the part of the plaintiff, but asserted a different factual and legal theory. He continued that the plaintiff could be found negligent solely because the defendant's vehicle was struck on the driver's side, which showed the defendant reached the point of impact first in plaintiff's lane of travel. (Trial transcript, pg 92; see PJI 2:80A pg 471, Duty of Driver on through highway, esp. pg 471, "Additionally, a driver has no duty to watch for and avoid a driver who might fail to stop or to proceed with due caution at a stop sign" — (citations omitted)). Defendant further asserted that the burden of proof to show it was not comparative negligence was on the plaintiff. (Trial transcript, pg 93; PJI 1:60 defendant has the burden of proving plaintiff negligent and a substantial factor, pg 67).
Yet, no factual or legal support was provided or proven to support defendant's new legal theory, including the omission of size and distance of the four corners of the intersection, the width of the intersecting road, the width of the three lanes on route 31, the speed of defendant's vehicle, the distance traveled by defendant from the point of stopping to the point of impact, and no reconstruction expert to show that the speed of plaintiff, and other said factors to show that the speed limit of plaintiff could be a causative factor of the accident. Nor was any good faith proof introduced, to show that the earlier investigating adjustor for State Farm had taken any dimensions, pictures, or statements, especially from its own insured, to show the necessary facts to support the defendant's old or new legal theory of plaintiff's possible contributory negligence. That good faith showing is especially relevant here since State Farm had warned the plaintiff directly by letter dated December 4, 2007 that it was investigating comparative negligence, and would reduce its payment of property damage, loss of use, and other out-of-pocket expenses in proportion to the extent that he, the plaintiff, contributed to the accident. State Farm thereafter then proceeded to directly settle those claims in full without any reduction attributed to plaintiff's conduct. (See letter dated 11/18/10). The law firm here retained by State Farm had full access to or could have requested this file and the information therein to determine if there was truly any additional real basis to continue to assert plaintiff's alleged comparative negligence. (State Farm Rep. Connie Jiampetti letter dated 12/4/07 and Erie Subrogation Specialist, Julie Michalec letter dated 11/18/10). No effort was made to produce the same at the sanction hearing, likely since it evidenced the lack of a valid defense.
The Court understands that the attorney trying the case is a young attorney, and that a different attorney conducted the EBT. Also, the Court recognizes that the carrier, State Farm, and its adjustor, who retained the firm, may be the real party in interest, who directed the frivolous defense be asserted. However, the Court has no authority over the carrier, under this Rule, but is limited to submitting the matter to the Commissioner of Insurance for his determination (Saastomoinen v. Pagano, et al, 278 AD2d 218, (2nd Dept., 2000)), which the Court will do. Nevertheless, the statute in this case is directed at the retained law firm, which pursued and implemented the frivolous defense. The Court has also taken into consideration that previously, one of the principles of this law firm had a jury verdict set aside for a myriad of misconduct, including misconduct similar to that employed here, ( Doody v. Gottshall, 18 Misc 3d 1136A, (Sup. Ct., Monroe Cty., 2008), mod'f in part, 67 AD3d 1347, (4th Dept., 2009)), and at a sanction hearing thereafter with imposition of sanctions. (November 16, 2010 hearing). The Court noted in that latter determination that the responder showed little recognition or appreciation of the nature and consequences of the misconduct, which factor the Court believed would likely be repeated if not properly sanctioned. In view of the historical repetition, the Court believes this sanction is essential to preventing further misconduct, and is commensurate therewith. (Valdez, et al v. Cibulski, 171 Misc 2d 49, (Sup. Ct, Queens Cty., 1996); affirmed ( 248 AD2d 707); motion for leave to appeal to Court of Appeals denied, 92 NY2d 808, (1998)).
This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. Attorney for the plaintiff is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.
SO ORDERED.