Ethics standards are clear and precise so that any attorney knows beforehand what conduct is unacceptable. Attorney John Smith [his real name keeps in secret], knowingly and willfully, committed the following violations and crimes:
a) Mr. John Smith knowingly entered my property without my consent and without a legal right to do, so he committed a simple trespass.
b) The video record clearly shows Mr. John Smith putting his yellow envelope inside the property of the United States Postal Service, which is federal crime. (See 18 U.S.C. §1725).
c) Mr. John Smith did not meet me personally at this or any other day, but he affirms under penalty of perjury, that he “served a true copy of annexed affirmation in opposition along with supporting papers upon the Plaintiff by delivering the same personally to the person or entity and at the address indicated below”. By so doing, Mr. John Smith perjured himself.
d) Finally, Mr. John Smith, knowingly and willfully, attached a forged page from the lease that forms the parties’ underlying dispute as Exhibit A to his Reply to my summary judgement motion, in contravention of the Supreme Court’s prior ruling”. See Tamburello v. Tamburello, 85 N.Y.S.3d 199 (2d Dep’t 2018).
Mr. John Smith, who engaged in frivolous conduct, placed his license in jeopardy. The same frivolous conduct prohibited by the Court Rules leads a lawyer to professional discipline and suspension for a violation of the Rules of Professional Conduct. These violations are sufficiently unethical and unprofessional, and as result, incompatible with the legal representation required in this proceeding. According to 22 CRR-NY sections 130-1.1, 130-1.2 the court may impose such financial sanctions against either an attorney or a party to the litigation or against both. Lack of legal or factual basis was apparent, should have been apparent, and was brought to the attention of Mr. John Smith and his client. This legal position was confirmed and supported by Appellate Division of the NYS Supreme Court:
a) A lawyer was suspended for six months for, among other things, for frivolous litigation. Matter of Gurvey, 102 AD3d 197 (1st Dept 2012);
b) A lawyer was suspended for one year for the pursuit of fraudulent and meritless litigation. Matter of Rosenberg, 97 AD3d 189 (1st Dept 2012);
c) The Appellate Division affirmed an order which imposed sanctions upon the defendant and his lawyer in the amount of $10,000 each. Defendant submitted an affidavit to the court that was intentionally misleading. This deliberately misleading representation was properly found to be sanctionable, as it related to material facts on a pending motion. Capetola v. Capetola, 947 N.Y.S.2d 94 (1st Dep’t 2012);
d) Counsel was sanctioned by the Appellate Division. In imposing sanctions, the court characterized counsel’s conduct as “inexcusable” since his position ran counter to all established precedent. McMurray v. McMurray, 557 N.Y.S.2d 149 (2d Dep’t 1990),
SUMMARY OF RELEVANT FACTS AND PROCEDURAL HYSTORY:
[factual and personal information keeps in secret]
The lease expired on January 31, 2017, but the Defendant did not vacate the premises. Instead, the Defendant occupied my property, without my permission and without any payment for possession, during all of February of 2017 and 21 days of March of 2017. Before the Defendant moved out, she intentionally caused huge damage: she flooded my house with water, cut electrical wires, poured cement down the drain, drilled steam heating pipes, destroyed the wood floor in the living room, made the collapse the ceiling in the basement, and committed many other acts of vandalism. My home insurance covered most of the damage. Then the insurance company cancelled my policy due to claim history.
The transcript dated December 19, 2016 and the transcript dated February 15, 2017 clearly and unequivocally demonstrates the exact termination date of the Lease. That date is January 31, 2017.
“The defendant, through her attorney, moved to set aside the agreement contending, in effect, that there had been a novation such that the agreement had been replaced by an affidavit of support. The Appellate Division found that the conduct of the defendant’s attorney was frivolous. He continued to advance his contention relating to the affidavit of support, which was completely without merit in law, in contravention of the Supreme Court’s prior ruling”.
Tamburello v. Tamburello, 85 N.Y.S.3d 199 (2d Dep’t 2018)
I commenced Holdover Proceeding on February 1, 2017.
In his Answer Defendant’s attorney, Mr. John Smith, confirmed the conditions of the actual Second Lease: “the lease annexed was not set to expire until January 31, 2017”.
The Defendant moved out of the premises on the night immediately before our Eviction hearing. The hearing was scheduled for March 22, 2017. Defendant vacated the premises on March 21, 2017. Mr. John Smith represented her during the Eviction case.
This action was commenced on June 23rd, 2020 by summons and complaint. Mr. John Smith was again retained by Defendant to represent her in this proceeding.
However, in his Answer on September 11, 2020 Mr. John Smith and his client fraudulently reference and rely on terms of a Lease that never existed. Defendant’s answer contradicts the testimony previously given by Mr. John Smith. The alleged “copy” of Lease Two, which Defendant attached as Exhibit A to her Opposition to my summary judgment motion dated September 11, 2020, is a forgery. It shows that Mr. John Smith knowingly made a false and misleading statement under oath in a signed legal document.
“Sanctions have been granted for frivolous conduct based on a party’s’ false testimony at trial as to a material issue”.
Sanders v. Copley, 605 N.Y.S.2d 281 (1st Dep’t 1993).
According to Kramer v. Berardicurti, 913 N.Y.S.2d 856 (4th Dep’t 2010), the counsel should be put on notice by the other party that a sanction is being sought or contemplated, and the attorney has right to be heard, See Breslaw v. Breslaw, 619 N.Y.S. 2d 323 (2nd Dep’t 1994).
Both Mr. John Smith and his client have so badly abused the judicial system in this action that anything less than an imposition of harsh sanctions will embolden them to continue and repeat their conduct. Most disturbingly, though, and evident from the transcripts, is that Mr. John Smith and his client knew my action had been confirmed by the previous Supreme Court hearings. I believe that sanctions against Defendant and her counsel are proper and necessary, and I hereby put Mr. John Smith on notice that I am seeking a sanction against him.
THEREFORE, the Plaintiff, Karina Duvall respectfully request that the Court to:
1) Impose appropriate sanctions on Defendant in the amount of $5,000 for her misconduct.
2) Impose appropriate sanctions on Defendant’s attorney, Mr. John Smith, in the amount of $10,000 for each single occurrence of attorney’s misconduct.
3) Refer Mr. John Smith to the attorney disciplinary committee to investigate his conduct;
4) Refer Mr. John Smith to the district attorney’s office to investigate his crimes;
5) Award the Plaintiff reasonable costs associated with the motion.