In re Hallock
| Decision Date | 29 June 2022 |
| Docket Number | 2019–03587 |
| Citation | 170 N.Y.S.3d 227 |
| Parties | In the MATTER OF Larry HALLOCK, a suspended attorney. (Attorney Registration No. 2480424) |
| Court | New York Supreme Court — Appellate Division |
Catherine A. Sheridan, Hauppauge, NY (Elizabeth A. Grabowski of counsel), for Grievance Committee for the Tenth Judicial District.
Scalise & Hamilton, P.C., Scarsdale, NY (Deborah A. Scalise of counsel), for respondent.
HECTOR D. LASALLE, P.J., MARK C. DILLON, COLLEEN D. DUFFY, BETSY BARROS, REINALDO E. RIVERA, JJ.
OPINION & ORDER ON REMITTITUR
By order dated January 16, 2019, the United States District Court for the Southern District of New York (hereinafter the District Court) censured the respondent, on consent, for his violation of rules 5.1(b)(1), (2) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ) (failure to ensure that Oleg Smolyar, an attorney under his supervision, conformed to the Rules of Professional Conduct) and (d)(2)(ii) (responsibility for Smolyar's misconduct); and 8.4(h) () of the Rules of Professional Conduct. By opinion and order dated February 13, 2020, this Court imposed reciprocal discipline on the respondent and suspended him from the practice of law for a period of one year, commencing March 16, 2020 (see Matter of Hallock, 181 A.D.3d 125, 119 N.Y.S.3d 573 ). By opinion dated December 14, 2021, the Court of Appeals reversed the opinion and order of this Court and remitted the matter to this Court for further proceedings in accordance with its opinion (see Matter of Hallock, 37 N.Y.3d 436, 159 N.Y.S.3d 385, 180 N.E.3d 549 ).
Upon remittitur, we conclude that the imposition of reciprocal discipline is warranted. Accordingly, the respondent is suspended from the practice of law for a period of one year, nunc pro tunc to March 16, 2020.
The law firm of Hallock & Malerba, P.C. (hereinafter the law firm), of which the respondent was a named partner, represented the plaintiff, Sheri Luscier, in a personal injury action commenced in the District Court entitled Luscier v. Risinger Bros. Transfer, Inc., 2015 WL 4507985 (S.D. N.Y., Castel, J., No. 13–cv–8553 ). The disciplinary action taken by the District Court against the respondent, in the form of a censure, was predicated on the respondent's conduct in that personal injury action, and is detailed in a Memorandum and Order on Sanctions issued on September 17, 2015, by the Honorable P. Kevin Castel, who imposed sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure against the law firm, and pursuant to Rules 11 and 56(h) of the Federal Rules of Civil Procedure against Smolyar (see Luscier v. Risinger Bros. Transfer, Inc., 2015 WL 5638063, *1, 2015 U.S. Dist LEXIS 129640, *3–4 [S.D. N.Y., 13–cv–8553 (PKC)] ).
The relevant facts as set forth in the Memorandum and Order on Sanctions are summarized as follows. Sheri Luscier, who was represented by the law firm, commenced a personal injury action claiming serious injury as a result of an automobile accident (see 2015 WL 5638063, *1–2, 2015 U.S. Dist LEXIS 129640, *1, *4 ). On June 1, 2015, the respondent—the attorney of record—filed an affirmation in opposition to the defendants’ motion for summary judgment. Among the documents filed in opposition to the defendants’ motion was an affidavit from the plaintiff, Luscier (hereinafter the Luscier Affidavit), which was later found by Judge Castel to be a "sham filing of no evidentiary worth" ( 2015 WL 5638063, *1, 2015 U.S. Dist LEXIS 129640, *4 ). Smolyar, the notary public on the Luscier Affidavit, purportedly administered the oath in Suffolk County. The summary judgment motion was denied, and on June 15, 2015, a jury was impaneled (see 2015 WL 5638063, *2, 2015 U.S. Dist LEXIS 129640, *4 ). At trial, on cross-examination, it was elicited from Luscier that she had not previously seen the Luscier Affidavit, did not know its contents, and did not swear to its truth, and that the signature above the attestation of the notary public did not look like her signature. Luscier remembered giving "Mary" permission to sign her name because Luscier was in Massachusetts. Luscier testified that she did not review the Luscier Affidavit before giving her permission and was not sure whether anyone discussed with her "paragraph by paragraph" what was stated in the Luscier Affidavit (2015 WL 5638063, *2, 2015 U.S. Dist LEXIS 129640, *6 ). Judge Castel, in a side bar conference, directed the respondent to have his law partner, Mary Malerba, file a declaration by June 18, 2015, explaining the circumstances surrounding the Luscier Affidavit and its execution. On June 19, 2015, Judge Castel brought to the respondent's attention that no affidavit or declaration had been submitted. The respondent indicated that an associate at the law firm was responsible for the Luscier Affidavit and that he would secure an affidavit from that associate (see 2015 WL 5638063, *2, 2015 U.S. Dist LEXIS 129640, *4 ). That same day, the jury returned a special verdict finding that neither defendant was negligent.
On June 23, 2015, the respondent filed on the District Court's electronic case filing system an "affidavit" from Smolyar—the "associate" that the respondent claimed was responsible for the Luscier Affidavit (2015 WL 5638063, *3, 2015 U.S. Dist LEXIS 129640, *7 ). Although labeled "Attorney's Affidavit" and signed by Smolyar, the document was neither sworn before a notary nor was it declared under penalty of perjury. It is undisputed that the Attorney's Affidavit was drafted "verbatim" by the respondent ( 2015 WL 5638063, *6, 2015 U.S. Dist LEXIS 129640, *17 ). Smolyar explained in the Attorney's Affidavit that he read the Luscier Affidavit to Luscier "word for word," that he made several changes upon her request, and after making the changes, he again spoke with her about the contents and "advised her that the papers were due and needed her signature" ( 2015 WL 5638063,*3, 2015 U.S. Dist LEXIS 129640, *7 [internal quotation marks omitted]). Smolyar stated that Luscier advised him that the law firm had a power of attorney, and that he had permission to sign her name. Smolyar admitted that he "signed those papers on her behalf and they were submitted to the court" ( 2015 WL 5638063, *3, 2015 U.S. Dist LEXIS 129640, *8 [internal quotation marks omitted]).
As a result of these revelations, on June 23, 2015, Judge Castel issued an order to show cause directing the law firm, the respondent, Malerba, and Smolyar to show cause why sanctions should not be imposed.
On July 13, 2015, Smolyar, who was now represented by counsel, submitted a declaration recanting the Attorney's Affidavit, stating that he never spoke to Luscier about her affidavit, that she never suggested and he never incorporated any edits to the draft affidavit, and that he never read the Luscier Affidavit to her (see 2015 WL 5638063, *3, 2015 U.S. Dist LEXIS 129640, *9 ). Smolyar stated in his declaration that Malerba had explained to him the urgency of the matter, that Luscier was in Massachusetts and would be physically unable to sign her affidavit in time to submit it to the District Court, and that the law firm had Luscier's power of attorney, which permitted the firm to sign documents on Luscier's behalf. Smolyar emphasized that Malerba told him that either she or the respondent would review the contents of the affidavit with Luscier before submitting it to the District Court (see 2015 WL 5638063, *3, 2015 U.S. Dist LEXIS 129640, *9 ). Smolyar stated that the incident was an "isolated and aberrational incident" and that to the best of his recollection, he "ha[d] never before signed the name of any client onto any document" nor had he ever "notarized [his] own signature or the signature of an individual who did not sign in [his] presence" ( 2015 WL 5638063, *4, 2015 U.S. Dist LEXIS 129640, *10, *11 [internal quotation marks omitted]). He further stated in his declaration that the respondent and Malerba had to have known, in this "urgent" matter, that he could not have possibly met with Luscier and notarized her signature in person. In sum, Smolyar's declaration clarified that the jurat on the Luscier Affidavit was false and that the Attorney's Affidavit, which explained the circumstances of the Luscier Affidavit, contained several material falsehoods ( 2015 WL 5638063, *4, 2015 U.S. Dist LEXIS 129640, *11 [internal quotation marks omitted]).
After receiving Smolyar's declaration, Judge Castel issued another order, expanding the bases for possible sanctions. Judge Castel placed Smolyar on notice that the District Court was considering sanctioning him based upon his submission of false statements to the court, i.e., the Attorney's Affidavit (see Rules of Professional Conduct rules 3.3[a][1], [3 ]; 8.4[a], [c], [d]). The respondent, Malerba, and the law firm were also placed on notice and directed to explain why they should not be sanctioned based upon the submission of false statements to the District Court, failure to correct false statements of material fact to the District Court, offering or using evidence that the lawyer knows to be false, engaging in conduct that amounts to violating or attempting to violate the Rules of Professional Conduct or knowingly assisting or inducing another to do so, engaging in conduct that is prejudicial to the administration of justice, and for failure to supervise (see Rules of Professional Conduct rules 3.3[a][1], [3 ]; 5.1, 8.4[a], [c], [d]).
In response to the order to show cause, the respondent and Malerba submitted declarations denying knowledge or involvement in the execution of the Luscier Affidavit. The respondent and Malerba claimed that they had no reason to believe that the Luscier Affidavit had not been signed by Luscier and were shocked to learn about Smolyar's conduct (see 2015 WL 5638063, *5, 2015 U.S. Dist LEXIS...
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