MZ Dental, P.C. v. Progressive Northeastern Ins.

6 Misc. 3d 649
CourtSuffolk County District Court
DecidedDecember 23, 2004
StatusPublished
Cited by5 cases

This text of 6 Misc. 3d 649 (MZ Dental, P.C. v. Progressive Northeastern Ins.) is published on Counsel Stack Legal Research, covering Suffolk County District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MZ Dental, P.C. v. Progressive Northeastern Ins., 6 Misc. 3d 649 (N.Y. Super. Ct. 2004).

Opinion

OPINION OF THE COURT

Toni A. Bean, J.

[650]*650A hearing was held, on November 19, 2004 to address certain ethical concerns raised by irregularities in the papers submitted by plaintiffs’ counsel in the above-captioned actions, as set forth in this court’s interim memorandum decision and order dated October 28, 2004. Edward Shapiro and his associate Jason Moroff appeared at the hearing as directed, as well as counsel for the defendants.

The plaintiffs, represented by Edward Shapiro and his law firm, have 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 plaintiffs “bills” were mailed on a particular date by “Edward Shapiro, Attorney at Law.” This affirmation has been offered to establish the timely mailing of each plaintiffs no-fault claim as part of that plaintiffs prima facie case.

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 plaintiffs 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 plaintiffs no-fault claim, while Mr. Moroff’s affirmations opposing disqualification stated that a nonlawyer 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 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 counsel’s actions constituted sanctionable conduct under 22 NYCRR 130-1.1 (a).

[651]*651At 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, EC.” 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.” Counsel for the plaintiffs contend that it was not their intent to deceive the court and expressed their apologies if that impression was given.

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. (See, e.g., Comprehensive Mental v Lumbermens Mut. Ins. Co., 4 Misc 3d 133[A], 2004 NY Slip Op 50745[U] [App Term, 9th & 10th Jud Dists 2004]; Oceanside Med. Healthcare, P.C. v Progressive Ins., NYLJ, May 23, 2002, at 22, col 4; Vinings Spinal Diagnostic v Liberty Mut. Ins. Co., 186 Misc 2d 287, 290-291 [2000].)

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 in MZ Dental, Inc. v Progressive Northeastern Ins. Co. 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” (emphasis added). However, in paragraphs 12 and 13, it states that an employee of their office mailed the bill. In raising these arguments in opposition to disqualifying Edward Shapiro, Esq. as attorney for [652]*652plaintiff, 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.

Equally disturbing to this court is Mr. Shapiro’s admission that none of 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 of the Courts, all documents prepared by counsel that are “served on another party or filed or submitted to the court shall be signed by an attorney” (22 NYCRR 130-1.la [a]). 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. (See, 22 NYCRR 130-1.la [b].) 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wilmington Sav. Fund Socy., FSB v. Matamoro
2021 NY Slip Op 05741 (Appellate Division of the Supreme Court of New York, 2021)
People v. Torre
48 Misc. 3d 745 (Nassau County District Court, 2015)
Vista Surgical Supplies, Inc. v. Travelers Insurance
50 A.D.3d 778 (Appellate Division of the Supreme Court of New York, 2008)
In re Edward Shapiro, P.C.
9 Misc. 3d 369 (Civil Court of the City of New York, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
6 Misc. 3d 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mz-dental-pc-v-progressive-northeastern-ins-nydistctsuffolk-2004.