Yvette Morris Brooks, Plaintiff, v. MARINE CAB CORP ASHER JUDAH NEW YORK CITY TRANSIT AUTHORITY METOPOLITAN TRANSPORTATION AUTHORITY (2026)

Introduction

The within decision concerns the issue of sanctions with respect to the submission of an attorney's affirmation in support of a motion made by Defendants Oliver Roy Beals and Marine Cab Corp. seeking summary judgment in their favor on the asserted ground that Plaintiff failed to sustain a serious injury in a motor vehicle accident.

Background

This action arises out of a motor vehicle accident that occurred on December 14, 2023 on Jerome Street at or near its intersection with Blake Avenue in New York City (see NYSCEF Doc No. 51 ¶ 4-5). Plaintiff Yvette Morris Brooks ("Plaintiff") alleged that she was a passenger in an "Access a Ride" transport operated by Defendant Oliver Roy Beals ("Defendant Beals") (see id.) and owned by Defendant Marine Cab Corp. ("Defendant Marine Cab") (see NYSCEF Doc No. 1 ¶ 12). Plaintiff also alleged that Defendants' negligence "caused, allowed and/or aggravated as a result" injuries to her lumbar spine, right knee, right ankle, right hand, and right wrist (NYSCEF Doc No. 51 ¶ 10). Plaintiff further averred that she sustained a serious injury as defined by Insurance Law § 5102 in that she sustained "a permanent loss of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents plaintiff[ ] from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than ninety days during the one hundred [and] eighty days immediately following the occurrence of the injury" (id. ¶ 20).

Defendants Beals and Marine Cab moved pursuant to CPLR 3212 for summary judgment dismissing the complaint, arguing that Plaintiff failed to meet the serious injury threshold requirement mandated in Insurance Law § 5104 (a) (see NYSCEF Doc No. 46). Defendants' attorney, Michael Lachman, Esq., of Baker, McEvoy & Moskovits, submitted an affirmation in support of the motion (see NYSCEF Doc No. 47). Mr. Lachman's affirmation stated "Defendant[s] now move for summary judgment on the ground that plaintiff did not sustain a serious injury. Based on plaintiff's Verified Bill of Particulars, the relevant categories in this action are Insurance Law, section 5102 (d): '. . . permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature, which prevents the injured person from performing substantially all of the material acts, which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury of impairment' " (id. ¶ 6).

Furthermore, Mr. Lachman's affirmation stated: "By finding no current limitations, and also normal results on a variety of objective clinical tests, defendants' doctors ruled out any basis for a permanent consequential limitation. See Mickelson v. Padang, 237 AD2d 495 (2 Dept. 1997); Attanasio v. Lashley, 223 AD2d 614 (2 Dept. 1996)" (id. ¶ 26).

The Court denied Defendants Beals and Marine Cab's motion for summary judgment because "defendants failed to make a prima facie showing as to exacerbation and 90/180. As such, the [C]ourt need not review the remaining categories" (NYSCEF Doc No. 122).

Discussion

The Court now determines whether sanctions should be imposed upon either Mr. Lachman or his law firm, Baker, McEvoy & Moskovits.

I. Discussion of Previous Matter Involving Attorney's Affirmation

Although Plaintiff's bill of particulars did not allege permanent consequential limitation of use of a body organ or member, Mr. Lachman's affirmation in two separate instances stated that Plaintiff did so allege. In fact, Mr. Lachman went as far as to cite case law in support of his claim that there was no permanent consequential limitation.

This Court has previously addressed the issue of template attorney affirmations submitted by the firm Baker, McEvoy & Moskovits in Ferraras v Chowdhury (89 Misc 3d 1202[A], 2026 NY Slip Op 50784[U] [Sup Ct, Kings County 2026]). In Ferraras, the Court noticed that while reviewing papers submitted by Mr. Lachman of Baker, McEvoy & Moskovits, there were factual misstatements set forth in his affirmation in support (see id. at *1). In that affirmation, Mr. Lachman referred to radiological evidence in support of the absence of serious injury but there was none provided, incorrectly stated that the subject accident was eliminated as a cause of the injuries alleged, and inaccurately portrayed information concerning the plaintiff being confined to bed and his employment situation (see id. at *4).

This Court, in Ferraras, discerned that, based on similarities in Mr. Lachman's affirmation to past affirmations submitted by his firm, including verbatim paragraphs and typographical errors, the law firm displayed a lack of care as to the accuracy of their affirmations (see id. at *6-7). However, in light of the facts that the plaintiff's counsel did not waste time opposing the defendant's counsel's defective filings because the action was settled, and the defendant's counsel, Mr. Lachman, took responsibility for the error and apologized for the same, the Court exercised restraint and did not impose a sanction (see id. at *7-8).

"[T]he factual presentation put forward in support of a serious injury threshold summary judgment motion is extremely important and should be absolutely accurate so that the Court is able to make an informed determination" (id. at *2). Like in Ferraras, Mr. Lachman's affirmation in the instant matter contained inaccuracies which hindered the Court's ability to efficiently make its determination.

Furthermore, the Court wastes time and energy on such errors. Leading up to a motion calendar day, the Court reviews the motion papers submitted by the parties and conducts related legal research to be able to properly deliberate on each motion (see id. at *2, quoting Matter of Court's Discharge of its Responsibilities Pursuant to 22 NYCRR 100.3 (D) (2), (3), 80 Misc 3d 813, 814 [Sup Ct, Kings County 2023]). Inaccuracies like that in the instant matter impair the Court's ability to fairly adjudicate the matters before it.

II. Attorney's Conduct Implicates Several Rules Under 22 NYCRR § 1200.0

In addition to the impact filings containing erroneous statements have on the Court, an attorney who submits them is in serious jeopardy of violating 22 New York Codes, Rules and Regulations § 1200.0, Rules of Professional Conduct ("22 NYCRR § 1200.0"). 22 NYCRR § 1200.0 Rule 1.1 ("Competence") provides, in relevant part, "(a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Mr. Lachman's affirmation raises substantial concerns under Rule 1.1. Competent representation requires careful review of the pleadings and supporting record before submitting motion papers. Here, the affirmation asserted twice that Plaintiff alleged a permanent consequential limitation of use despite Plaintiff's bill of particulars containing no such allegation. Counsel further cited authority directed to that category of serious injury. These errors suggest that the motion papers were not prepared with the degree of thoroughness and care contemplated by Rule 1.1.

Mr. Lachman's conduct furthermore implicates 22 NYCRR § 1200.0 Rule 1.3 ("Diligence"), which provides, in relevant part, "(a) A lawyer shall act with reasonable diligence and promptness in representing a client." Rule 1.3 (a) requires careful attention to the factual record so that advocacy advances a client's position. By relying upon an inaccurate description of Plaintiff's claims, Defendants' counsel devoted portions of the motion to an issue not actually presented by the pleadings. Such carelessness detracted from otherwise legitimate arguments and diminished the persuasive value of the motion. Diligent advocacy requires ensuring that attorneys assert legal arguments which correspond to the claims asserted.

Moreover, such factually incorrect statements need to be adjudged under 22 NYCRR § 1200.0 Rule 3.3 ("Conduct before a tribunal"), which states, in relevant part, "(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." The present record does not establish that counsel knowingly misrepresented Plaintiff's allegations or intentionally attempted to mislead the Court. Nevertheless, attorneys appearing before a tribunal are obligated to ensure that factual representations accurately reflect the record. Although the Court cannot conclude on this record that counsel acted knowingly, the inaccuracies nevertheless delayed the Court's deliberation over the motion.

Additionally, Defendants' counsel's statements brings into question 22 NYCRR § 1200.0 Rule 5.1 ("Responsibilities of law firms, partners, managers and supervisory lawyers'), which states, in relevant part:

(a) A law firm shall make reasonable efforts to ensure that all lawyers in the firm conform to these Rules.

(b) (1) A lawyer with management responsibility in a law firm shall make reasonable efforts to ensure that other lawyers in the law firm conform to these Rules.

(2) A lawyer with direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the supervised lawyer conforms to these Rules.

(c) A law firm shall ensure that the work of partners and associates is adequately supervised, as appropriate. A lawyer with direct supervisory authority over another lawyer shall adequately supervise the work of the other lawyer, as appropriate. In either case, the degree of supervision required is that which is reasonable under the circumstances, taking into account factors such as the experience of the person whose work is being supervised, the amount of work involved in a particular matter, and the likelihood that ethical problems might arise in the course of working on the matter.

(d) A lawyer shall be responsible for a violation of these Rules by another lawyer if:

(1) the lawyer orders or directs the specific conduct or, with knowledge of the specific conduct, ratifies it; or

(2) the lawyer is a partner in a law firm or is a lawyer who individually or together with other lawyers possesses comparable managerial responsibility in a law firm in which the other lawyer practices or is a lawyer who has supervisory authority over the other lawyer; and

(i) knows of such conduct at a time when it could be prevented or its consequences avoided or mitigated but fails to take reasonable remedial action; or

(ii) in the exercise of reasonable management or supervisory authority should have known of the conduct so that reasonable remedial action could have been taken at a time when the consequences of the conduct could have been avoided or mitigated.

The repeated use of substantially similar affirmations containing factual inaccuracies suggests a larger deficiency in the law firm's supervisory practices. The Court previously noted similarities between Mr. Lachman's affirmation and prior firm filings, including verbatim language and recurring errors, indicating that the firm failed to ensure that its attorneys' work was adequately reviewed before filing.¹ These recurring mistakes support the conclusion that the firm's management and supervisory procedures are insufficient to ensure compliance with the Rules of Professional Conduct.

Finally, Mr. Lachman's conduct is in potential breach of 22 NYCRR § 1200.0 Rule 8.4 ("Misconduct"), which states, in relevant part: A lawyer or law firm shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another. The Court does not conclude that Mr. Lachman intentionally engaged in deceit or acted with dishonest purpose. Rather, the concern arises from the submission of an affirmation containing material factual inaccuracies that should have been discovered before filing. Such errors diminish confidence in counsel's submissions and unnecessarily consume judicial resources, concerns previously identified by this Court in Ferraras. Although the Court previously exercised restraint in declining to impose sanctions in the above-referenced matter, it nevertheless emphasized that inaccurate submissions waste judicial resources and impair the Court's ability to make informed decisions.

III. Discussion of Sanctions

As previously discussed in Ferraras v Chowdhury:

"[T]he court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart" (22 NYCRR 130-1.1 [a]). "For purposes of this Part, conduct is frivolous if: . . . (3) it asserts material factual statements that are false" (130-1.1 [c] [3]). "In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (id. 130-1.1 [c]). "An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case." (Id. 130-1.1 [d].)

A party's presentment of inaccurate claims warrants a sanction (see Cram v Keller, 166 AD3d 846 [2d Dept 2018] ["no good faith basis for the defendant's motion to set aside the verdict to the extent it was predicated upon the inaccurate claim that the defendants did not own the subject property"]). (Ferraras, 2026 NY Slip Op 50784[U] at *6.)

On the other hand, as recognized in Ferraras (see id.), not every inaccuracy warrants a sanction:

Here, however, the motion brought by the nonparty appellant Steven B. Ferber on behalf of the claimant was not so frivolous as to warrant the imposition of a sanction (see, Musumeci v Musumeci, 267 AD2d 364). The statement made by the nonparty appellant Thomas J. Bailey in his affirmation in support of the motion regarding the use of an aerial photograph at pretrial conferences, while inaccurate, was not material to the resolution of the motion to vacate the judgment. Accordingly, the nonparty appellants' conduct did not warrant the imposition of sanctions pursuant to 22 NYCRR part 130. (Bahamonde v State, 269 AD2d 551, 552 [2d Dept 2000]); see Elting v Shawe, 129 AD3d 648 [2d Dept 2015].)

Conclusion

Although Mr. Lachman's submitted affirmation herein indeed misstated facts and his conduct might rise to the level of overstepping certain provisions of 22 NYCRR § 1200.0, the Court finds that this mistake does not rise to the level of frivolous as defined by 22 NYCRR 130-1.1 and, therefore, it does not warrant the imposition of sanctions. Indeed, even a trained eye reading Plaintiff's bill of particulars could mistakenly infer that Plaintiff was in fact claiming permanent consequential loss of use, although this was not explicitly stated. The Court has observed that many motor vehicle accident plaintiffs who allege a serious injury often allege permanent consequential loss of use coupled with significant limitation of use. It is not unlikely that an attorney experienced in serious injury matters may inadvertently believe a plaintiff to have claimed both categories and thus listed both out of habit. Therefore, the Court declines to sanction Mr. Lachman and Baker, McEvoy & Moskovits. Nonetheless, the Court emphasizes, as it did in Ferraras, that the law firm's misstatements are troublesome and cast a shadow on the credibility of arguments advanced (see Ferraras, 2026 NY Slip Op 50784[U] at *6-7).

Dated: Sept. 7, 2026

Hon. Aaron D. Maslow

Justice of the Supreme Court of the

State of New York

FOOTNOTES

FOOTNOTE.  

1.   Mr. Lachman's affirmation in the case at bar contains identical content and stylistic errors present in those reviewed in Ferraras.

Aaron D. Maslow, J.* FN* This Court acknowledges the assistance of Maxine Como, judicial intern and second year student at Cardozo School of Law, in the preparation of this decision.