Promed Durable Equip., Inc. v. Geico Ins.

Full title: Promed Durable Equipment, Inc. as Assignee of Shavonne Flinch, Respondent…

Court: Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: May 1, 2014

2014 N.Y. Slip Op. 72451 (N.Y. App. Term 2014)

Opinion

Motion No: 2012-00035 KC 2012-23 Q C

05-01-2014

Promed Durable Equipment, Inc. as Assignee of Shavonne Flinch, Respondent, v. GEICO Insurance, Appellant.

MICHAEL L. PESCE

, P.J.

THOMAS P. ALIOTTA

MARTIN M. SOLOMON, JJ.

DECISION & ORDER ON MOTION

Promed Durable Equipment, Inc. as Assignee of Nyanza McMillian, Respondent, v GEICO Insurance, Appellant.

Appellate Term Docket No.

2012-34 Q C

Lower Court # 131587/08

Promed Durable Equipment, Inc. as Assignee of Roberto Martinez, Respondent, v GEICO Insurance, Appellant.

Appellate Term Docket No.

2012-35 Q C

Lower Court # 25107/09

Promed Durable Equipment, Inc. as Assignee of Jack Woods, Respondent, v GEICO Insurance, Appellant.

Appellate Term Docket No.

2012-37 Q C

Lower Court # 139984/08

Promed Durable Equipment, Inc. as Assignee of Karnod Knowles, Respondent, v GEICO Insurance, Appellant.

Appellate Term Docket No.

2012-38 Q C

Lower Court # 70741/09

Promed Durable Equipment, Inc. as Assignee of Tonia Haynes, Respondent, v GEICO Insurance, Appellant.

Appellate Term Docket No.

2012-39 Q C

Lower Court # 25158/09

Promed Durable Equipment, Inc. as Assignee of Luis Abreu, Respondent, v GEICO Insurance, Appellant.

Appellate Term Docket No.

2012-92 Q C

Lower Court # 96067/08

Promed Durable Equipment, Inc. as Assignee of Dmitry Davydov, Respondent, v GEICO Insurance, Appellant.

Appellate Term Docket No.

2012-108 Q C

Lower Court # 42777/09

Appeals in the above-captioned matters from eight orders of the Civil Court of the City of New York, Queens County, entered, respectively, October 25, 2011, November 21, 2011, October 25, 2011, November 21, 2011, October 28, 2011, October 6, 2011, October 24, 2011 and November 23, 2011, which appeals were determined by decisions and orders of this court dated August 16, 2013. In each of the decisions and orders dated August 16, 2013, counsel for the respective parties were directed to show cause why an order should or should not be made and entered imposing such sanctions upon Jonathan R. Vitarelli, Esq., counsel for respondent, and Ilona Finkelshteyn, Esq., counsel for respondent, as the court may deem appropriate pursuant to the Rules of the Chief Administrator (22 NYCRR) § 130-1.1.

Upon the orders to show cause and the papers filed in response thereto, it is

ORDERED, on the court's own motion, that the orders to show cause are consolidated for the purpose of disposition; and it is further,

ORDERED that within 20 days after service of a copy of this decision and order on motion upon him, Jonathan Vitarelli, Esq., counsel for respondent, shall pay a sanction in the sum of $250 to the Lawyers' Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); and it is further,

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, Ilona Finkelshteyn, Esq., counsel for respondent, shall pay a sanction in the sum of $500 to the Lawyers' Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); and it is further,

ORDERED that the Clerk of this Court, or his designee, shall serve a copy of this decision and order on motion upon counsel for the parties by regular mail; and it is further,

ORDERED that within 10 days after payment of the sanction, Jonathan Vitarelli, Esq., and Ilona Finkelshteyn, Esq., shall each file proof of payment with the Clerk of this Court.

Where a respondent submits an appellate brief, it shall include, pursuant to CPLR 5528, the respondent's appellate argument (see Rules of App Term, 2d, 11th & 13th Jud Dists [22 NYCRR] § 731.2 [a]). Sanctions and costs may be imposed against an attorney or party to the litigation, or both, for engaging in frivolous conduct (Rules of the Chief Administrator [22 NYCRR] § 130-1.1). We note generally that rule 3.3 (f) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that "[i]n appearing as a lawyer before a tribunal, a lawyer shall not . . . engage in undignified or discourteous conduct" (see also Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 899 [2011]). We further note that rule 5.1 of the Rules of Professional Conduct (22 NYCRR 1200.0) governs the responsibilities of law firms, partners, managers and supervisory lawyers.

In the instant cases, the briefs submitted on respondent's behalf contained, among other things, pages denominated "Table of Authorities" and "Summary of the Argument" that merely stated that these pages were "left blank intentionally." The "Question Presented" stated only: "WHAT'S A BOY TO DO?" The remainder of the respondent's briefs did not address the facts of the cases or interpose any specific arguments as to why the orders appealed from should be affirmed. Rather, shortly after beginning what was denominated as "legal argument," respondent's briefs stated that "[i]t is curious how clearly this Appellate Court wants to protect the Insurance Company defendants despite the well-settled laws of the State of New York," before eventually asserting that "[t]he shortsighted nature of apathetic plaintiffs is equaled to the shortsightedness shown by this court's attempt to improperly impose new made-up law after a series of decisions in which this court chose to decide by a results-oriented analysis rather than a process oriented analysis." The briefs continued by declaring:

"the recent Park Slope decision is replete with foundationless claims and misunderstandings of both law and argument. The funny thing is there is nothing to be done about it, except go to the Court of Appeals given the unavailability of the Appellate Division, Second Department. It seems clear from discussion with Plaintiff firms and judges that there is an agreement that this Appellate Term will redefine the laws of evidence in order to suit the insurance company business model, while at the same time the Appellate Division will not accept cases from the Appellate Term."

A mere eight lines above Mr. Vitarelli's signature, the briefs stated "I went to write this brief in earnest, then I realized, given the court's clear position, there is not [sic] point." After the section denominated "Legal Argument," immediately above Mr. Vitarelli's signature, were the words "[w]ith all due respect."

In assessing sanctions against Mr. Vitarelli, the court finds that Mr. Vitarelli's submissions were disrespectful, insulting or undignified (see e.g. Matter of Probst, 36 AD3d 216 [2006] [attorney censured for sending letter to judge, with copy to adversary, which contained statements that were either derogatory, undignified , or intemperate]; Matter of Hayes, 7 AD3d 108 [2004] [censure for disrespectful behavior before the court, including accusations of racism and prejudice]; Matter of Wisehart, 281 AD2d 23 [2001] [two-year suspension for, inter alia, making false accusations of incompetence and bias against two judges]; Matter of Dinhofer, 257 AD2d 326 [1999] [three-month suspension where attorney disrespectful to judge during telephone conference, including calling judge corrupt]; Matter of Golub, 190 AD2d 110 [1993] [censure for unprofessional and degrading statements about a judge to the press]). In assessing the aforesaid sum, the court has taken into consideration the punishment already suffered by Mr. Vitarelli, i.e., termination from The Law Offices of Ilona Finkelshteyn.

With respect to Ilona Finkelshteyn, Esq., the name of whose law firm appears on each brief submitted by Mr. Vitarelli, the court finds that "in the exercise of reasonable management or supervisory authority, [Ms. Finkelshteyn] knew [as alleged by Mr. Vitarelli] or should have known" of Mr. Vitarelli's conduct (Matter of Berkman, 55AD3d 114, 117 [2008]) and failed, under the circumstances, to adequately supervise the work submitted by Mr. Vitarelli, which bore Ms. Finkelshteyn's name (see Matter of Shapiro, 55 AD3d 291 [2008]).

Under the circumstances, while an associate with Mr. Vitarelli's experience need not be closely supervised, and it may be reasonable for a supervisor not to review every submission prepared by such an experienced associate, it is reasonable to expect that some review of the associate's work would be undertaken. Even a cursory review by Mr. Vitarelli's supervisors would have led to the discovery of the offending briefs. In determining the amount of the sanction against Ms. Finkelshteyn, the court has taken into consideration that, upon discovery of the misconduct when served by the court with the orders to show cause, she took swift remedial action by terminating Mr. Vitarelli.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk