Ferraras v Chowdhury

Supreme Court, Kings County

Decided on May 24, 2026

Index No. 517152/2023

Aaron D. Maslow, J.

Introduction

The within action concerns alleged personal injuries resulting from a motor vehicle accident occurring on November 26, 2022, in Kings County. Defendant moved for summary judgment dismissing Plaintiff's complaint on the asserted ground that Plaintiff failed to sustain a serious injury as defined in Insurance Law § 5102 (d) ("serious injury threshold"), as required by Insurance Law § 5104 (a). Upon review of Defendant's papers in support of its motion, the Court realized that factual misstatements were set forth in the attorney affirmation in support. Therefore, it scheduled a sanctions hearing for May 21, 2026, to be held simultaneously with oral argument on the motion, to determine whether the misstatements constituted frivolous conduct for having asserted "material factual statements that are false" (22 NYCRR 130-1.1 [c] [3]).

On May 21, 2026, the parties informed the Court that the action had been settled. The Court then heard from Michael Lachman, of Baker, McEvoy & Moskovits, attorneys for Defendant, and Dino Mastropietro, of Lozner & Mastropietro, attorneys for Plaintiff, with [*2]respect to the issue of the factual misstatements in the attorney affirmation.

This decision discusses the misstatements in the wider context of the usage of a template affirmation in serious injury threshold summary judgment motions, the determination in this instance being not to impose a sanction.

Serious Injury Threshold Summary Judgment

As per Insurance Law § 5104 [a]), "Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss."

Serious injury is defined though nine statutory categories:

a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment [last category known as "90/180"] (Insurance Law § 5102 [d]).

The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law, which may be decided on a motion for summary judgment (see Licari v Elliott, 57 NY2d 230 [1982]). A moving defendant bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that the plaintiff has not suffered a serious injury proximately resulting from the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Curiale v Delfavero, 211 AD3d 905 [2d Dept 2022]).

In order to make out a prima facie case that a plaintiff has failed to achieve serious injury as defined in Insurance Law § 5102 (d), a defendant must rule out all categories claimed in the bill of particulars (see Diaz v Nightingale Bakery & Beverage Distrib., Inc., 241 AD3d 642 [2d Dept 2025]; Santos v Fiktus, 232 AD3d 698 [2d Dept 2024]; Curiale v Delfavero, 211 AD3d 905), and/or must establish that whatever injuries are claimed by the plaintiff did not proximately result from the subject motor vehicle accident (see Lemieux v Horn, 39 NY3d 1108 [2023], affg 209 AD3d 1100 [3d Dept 2022]; Franklin v Gareyua, 29 NY3d 925 [2017], affg 136 AD3d 464 [1st Dept 2016]; Rivera v Fernandez & Ulloa Auto Group, 25 NY3d 1222 [2015], affg 123 AD3d 509 [1st Dept 2014]).

If the defendant has made such a showing that the plaintiff has not suffered a serious injury from the subject motor vehicle accident as a matter of law, the burden shifts to the plaintiff to submit evidence in admissible form to establish that indeed there are material issues of fact regarding serious injury (see Franchini v Palmieri, 1 NY3d 536 [2003]; Grasso v Angerami, 79 NY2d 813 [1991]).

In line with the foregoing, the 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.

Court's Review of Motions

"In the days preceding a Motion Calendar Day, this Court reviews the memoranda and the papers submitted by the proponents and opponents of the motions. Research as necessary into case law is performed. A lot of time is expended in becoming familiar with the motions in advance." (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].)

"Review of motions in advance is a practice of this court (see Matter of Court's Discharge of Its Responsibilities Pursuant to 22 NYCRR § 100.3 (D) (2), (3), --Misc 3d --, 2023 NY Slip Op 23258, *1 [Sup Ct, Kings County 2023]), as is enables full consideration and deliberation which each motion deserves" (Fargiano v WFP Tower D Co., L.P., 2024 NY Slip Op 34686[U] [Sup Ct, Kings County 2024]).

Instant Motion

Defendant's attorney affirmation in the case at bar alleged that based on an affirmed independent medical examination (IME) report from Dr. Hugh Selznick, "the allegations of injury are unsubstantiated and cannot meet the statutory threshold requirements of 'serious injury', under any of the applicable categories" (NYSCEF Doc No. 24 ¶ 7).

In connection with the 90/180 category, the attorney affirmation stated, "Plaintiff was not confined to bed as a result of the accident" (id. ¶ 11). "Plaintiff missed two months of work as a result of the accident, and was confined to bed and home for one week per the bill of particulars, and does not meet the 90/180 requirement" (id. ¶ 25).

In an attempt to show that whatever injuries Plaintiff claimed did not proximately result from the subject motor vehicle accident, the attorney affirmation stated:

Specifically, defendants' showing includes objective evidence establishing an "absence of trauma" (See, Kester v. Sendoya, 123 AD3d 418 (1st Dept. 2014), including radiological evidence confirming that no traumatic injury was sustained, which negates a claim of any causally related serious injury under the statute, and is sufficient to meet defendants' burden on this motion. See Ikeda v. Hussain, 81 AD3d 496 (1st Dept. 2011); Johnson v. Selznick, 82 AD3d 565 (1st Dept. 2011); Arroyo v. Morris, 85 AD3d [*3]679 (1st Dept. 2011); Valentin v. Pomilla, 59 AD3d 184 (1st Dept. 2009) . (NYSCEF Doc No. 24 ¶ 18 [emphasis added].)

This was followed by:

By eliminating the accident as a cause of the conditions alleged, defendants eliminate all categories of the statute. See Perl, supra; Toure v. Avis Rent A Car, 98 NY2d 345,746 NYS2d 865 (2002); Linton v. Gonzales, 110 AD3d 534 (1st Dept. 2013); Rickert, supra ; Batista v. Porro, 110 AD3d 609 (1st Dept. 2013); Kreimerman v. Stunis, 74 AD3d 753 (2nd Dept. 2010); Lall v. Ali, 101 AD3d 439 (1st Dept. 2012); Valentin v. Pomilla, 59 AD3d 184 (1st Dept. 2009). (NYSCEF Doc No. 24 ¶ 19 [emphasis added].)

Since a defendant must rule out all categories claimed in the bill of particulars in asserting that the plaintiff failed to sustain a serious injury as defined in Insurance Law § 5102 (d), including 90/180, the Court assumed that the attorney affirmation accurately described Plaintiff's situation with respect to being confined to bed and missing work: "Plaintiff was not confined to bed as a result of the accident" (id. ¶ 11). "Plaintiff missed two months of work as a result of the accident, and was confined to bed and home for one week per the bill of particulars, and does not meet the 90/180 requirement" (id. ¶ 25). However, review of the bill of particulars yielded different information:

12. Plaintiff, DEMAJE NABINETT THOMAS:

A) Was confined to bed for a period of approximately 1 week except for necessary and essential excursions for required purposes.

B), Was confined to home for a period of approximately 1 week except for necessary and essential excursions for required purposes.

13. Plaintiff was incapacitated from employment for approximately 1 week. (NYSCEF Doc No. 26 ¶¶ 12-13.)

First, the attorney affirmation is inconsistent in its own factual aversions regarding Plaintiff being confined to bed, in that paragraph 11 states that Plaintiff was not confined to bed yet paragraph 25 states that he was confined for one week. Second, if the latter is the case, then the statement in paragraph 11 is inaccurate. Third, the statement in paragraph 25 that Plaintiff missed two months of work as a result of the accident is contradicted by the allegation in the bill of particulars that he was incapacitated from employment for approximately one week. None of these inconsistencies were explained.

Since one can also establish lack of serious injury by showing that whatever injuries the plaintiff claimed did not proximately result from the subject motor vehicle accident, the Court endeavored to locate in the motion papers the radiological evidence referred to in the attorney affirmation's paragraph 18. The Court looked through the papers filed on NYSCEF and did not see any x-ray, MRI, or CT reviews. Normally, when a defendant makes a serious injury [*4]threshold summary judgment motion and alleges that radiological evidence supports the absence of serious injury, an independent MRI review is usually submitted; occasionally an independent review of x-rays or CT scan imaging is submitted. Here, there were none. The Court was startled. Surely, if the attorney affirmation stated that "radiological evidence confirming that no traumatic injury was sustained" (NYSCEF Doc No. 24 ¶ 18), then there had to be a report reviewing the imaging. After laying aside review of the motion the Court took another look at it and, still, the Court could not locate a radiology review.

Not only that, the Court attempted to confirm that Defendant "eliminate[ed] the accident as a cause of the conditions alleged" (id. ¶ 19). Realizing that there was no radiology report, the Court re-read Dr. Selznick's affirmed IME report. Perhaps Defendant was conveying that Dr. Selznick read a radiology report which concluded that the accident was not a cause of any injuries. The Court's re-reading of Dr. Selznick's affirmed IME report did not yield any such information. Dr. Selznick reviewed only one document: the verified bill of particulars (see NYSCEF Doc No. 29 at 1). Neither did Dr. Selznick opine that the subject accident was not the cause of any injuries. By stating that conditions had "resolved," it appears he implied that Plaintiff's condition improved from whatever injuries he had sustained in the accident (id. at 3).

It became obvious to the Court that the reference to radiological evidence in paragraph 18, the statement in paragraph 19 that the accident was eliminated as a cause of the conditions alleged, and the information concerning Plaintiff being confined to bed and his employment situation were all inaccurate. The most egregious of the misstatements was stating that Defendant had radiological evidence.

Template Attorney Affirmations in Serious Injury Threshold Summary Judgment Motions

Ever since assuming the bench in 2023, the Court has noticed the ubiquity of template attorney affirmations submitted by the firm of Baker, McEvoy & Moskovits in support of serious injury threshold summary judgment motions. The Court compared the attorney affirmation in the case at bar with those submitted in a sampling of six other actions: Burd v Rikelman (Index No. 514311/2018 [Sup Ct, Kings County]); St. Louis v Revishvili (Index No. 513654/2022 [Sup Ct, Kings County]); Berthold v Williams (Index No. 508768/2023 [Sup Ct, Kings County]); Thomas v Peak Limo Inc. (Index No. 515578/2023 [Sup Ct, Kings County]); Jean Philippe v Islam (Index No. 520505/2023 [Sup Ct, Kings County]); and Barrios Gramajo v Fox Ride Inc. (Index No. 525473/2023 [Sup Ct, Kings County]).

The Court initially focuses on the assertions in the attorney affirmation herein, "[D]efendants' [sic] showing includes objective evidence establishing an 'absence of trauma' [citation omitted] including radiological evidence confirming that no traumatic injury was sustained" (NYSCEF Doc No. 24 ¶ 18), and "By eliminating the accident as a cause of the conditions alleged, defendants [sic] eliminate all categories of the statute (id. ¶ 19). The exact same text as set forth in paragraphs 18 and 19 in the attorney affirmation herein appear in the respective attorney affirmations submitted by defense counsel in support of serious injury threshold summary judgment motions as follows: Burd v Rikelman (Index No. 514311/2018), in paragraphs 18 and 19; Berthold v Williams (Index No. 508768/2023), in paragraphs 19 and 20; [*5]Thomas v Peak Limo Inc. (Index No. 515578/2023), in paragraphs 21 and 22; Jean Philippe v Islam (Index No. 520505/2023), in paragraphs 21 and 22; and Barrios Gramajo v Fox Ride Inc. (Index No. 525473/2023, in paragraphs 21 and 22. In St. Louis v Revishvili (Index No. 513654/2022), paragraph 27 is exactly the same as paragraph 18 herein but for the addition of six additional words; paragraph 28 is exactly the same as paragraph 19 herein. The identicality of the text of these pairs of paragraphs is so glaring that they even include the same typographical errors: a space between "2009)" and the period at the end of the first paragraph, and a space between "supra" and a semicolon in the second paragraph.

Numerous other paragraphs in the instant attorney affirmation submitted by defense counsel are exactly identical to those it submitted in the surveyed affirmations. Consider, for example, the following consecutive paragraphs herein:

13. The purpose of the No-fault law (Insurance Law, sections 5102, et seq.) is to guarantee first party benefits for basic economic loss and to prevent litigation where serious injury has not been sustained. There is an intentional trade-off in the statute: in return for prompt payments for medical bills and lost income, as provided by the statute, there is a restriction on personal injury lawsuits that do not exceed such basic economic loss. Only plaintiffs who can establish a "serious injury" as defined by Insurance Law § 5102(d), can maintain a lawsuit and it is incumbent upon the judiciary, in the first instance, to scrutinize the medical evidence and to bar claims, which do not qualify. See, Report, of the Joint Legislative Committee on Insurance Rates Regulation and Recodification of the Insurance Law, NY Legis. Doc. 1973, No. 18.

14. As stated by the Court of Appeals, in Licari v. Elliot, 57 NY2d 230 (1982):

"[T]acit in this legislative enactment is that any injury not falling within the new definition of serious injury is minor and a trial by jury is not permitted under the no-fault system." Licari, supra, at 572. "...Thus, we believe the Legislature intended that the court should decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within the class of injuries that, under no-fault, should be excluded from judicial remedy. If it can be said, as a matter of law, that plaintiff suffered no serious injury

See also Armstrong v. Wolfe, 133 AD2d 957 (3d Dept. 1997).

15. The no-fault law was designed to prevent fraud and clogging of the court system with frivolous claims. That Court of Appeals has recognized that no-fault abuse "abounds". In 2005, Chief Justice Judith Kaye noted "[F]rom 1992 to 2000, reports of No-Fault fraud rose more than 1,700% and constituted 75% of all automobile fraud reports received by the Insurance Department in 2000." She also stressed the importance of identifying and dismissing claims that do not meet the statutory requirements from those that should proceed to trial, stating:

"there is . . . abuse of the No-Fault law in failing to separate "serious injury" cases, which may proceed in court, from the mountains of other auto accident claims, which may [*6]not . . . . [and] failure to grant summary judgment when where the evidence justifies dismissal, burdens court dockets and impedes the resolution of legitimate claims."[emphasis added] Pommells v. Perez, 4 NY3d 566 (2005).

16. The Court's concern has not changed. In the recent case of Perl v. Meher, 18 NY3d 208 (2011), the Court of Appeals stated:

"No-fault abuse still abounds today. In 2010, no-fault accounted for 53% of all fraud reports received by the Insurance Department (Annual Report to the Governor and the Legislature of the State of New York on the Operations of the Insurance Frauds Prevention Act at 23). "Serious injury" claims are still a source of significant abuse, and it is still true, as it was in 2005, that many courts, including ours, approach claims that soft-tissue injuries are "serious" with a "well-deserved skepticism" (Pommells, 4 NY3d at 571)."

17. It is important to note that it is not the number of motions that should concern the Court, but rather the number of non-meritorious motor-vehicle lawsuits in the courthouse. Cases lacking sound medical evidence of a minor accident that caused a "serious injury", are a great burden on the court system and its resources, not to mention the county's jury pool. This is a case in which the evidence does not indicate a "serious injury", and which more closely from the "mountain of . . . other claims . . . " lacking merit under this legislative scheme.[ ] (NYSCEF Doc No. 24 ¶¶ 13-17 [bolding in original].)

The exact same text as set forth in paragraphs 13-17 in the attorney affirmation herein appears in the respective attorney affirmations submitted by defense counsel in support of serious injury threshold summary judgment motions in the six sampled cases as follows: Burd v Rikelman (Index No. 514311/2018), in paragraphs 13-17; St. Louis v Revishvili (Index No. 513654/2022), in paragraphs 22-26; Berthold v Williams (Index No. 508768/2023), in paragraphs 14-18; Thomas v Peak Limo Inc. (Index No. 515578/2023), in paragraphs 16-20; Jean Philippe v Islam (Index No. 520505/2023), in paragraphs 16-20; and Barrios Gramajo v Fox Ride Inc. (Index No. 525473/2023), in paragraphs 16-20. The same typographical errors were maintained in five of the six attorney affirmations: lack of a space between the paragraph ending in "See also Armstrong v. Wolfe, 133 AD2d 957 (3d Dept. 1997)" and the one beginning with "The no-fault law was designed."^FN1; lack of a period at the end of the long paragraph quoting Licari v Elliot; and lack of a space between the quotations about No-Fault abuse and "[emphasis added]." The same underlinings and bolding appear as do the inconsistencies in citation: one case name is italicized while others are not, and the defendant's name in one citation is italicized and underlined while the plaintiff's is not. Even the failure to convert inner quotation marks to singular ones within a quotation is identical in each attorney affirmation.

Also troublesome is the following paragraph in the within attorney affirmation:

In addition, defendant's doctors reported near normal findings on a myriad of objective tests, with full ranges of motion and no functional disability. This evidence clearly defeats any claim of significant injury, or other category of the statute. See Toure v. Avis Rent A Car, 98 NY2d 345, (2002); Grasso v. Angerami, 79 NY2d 813 (1991); Madera v. Gressey, 84 AD3d 460 (1st Dept. 2011); Sayas v. Merrick Transport, 23 AD3d 367 (2nd Dept. 2005); Farozes v. Kamran, 22 AD3d 458 (2nd Dept. 2005); Verette v. Zia, 44 AD3d 747 (2nd Dept. 2007). (NYSCEF Doc No. 24 ¶ 20.)

The identical paragraph is set forth in the other attorney affirmations: paragraph 20 in Burd v Rikelman (Index No. 514311/2018); paragraph 29 in St. Louis v Revishvili (Index No. 513654/2022) (absent the word "near"); paragraph 21 in Berthold v Williams (Index No. 508768/2023); paragraph 23 in Thomas v Peak Limo Inc. (Index No. 515578/2023); paragraph 23 in Jean Philippe v Islam (Index No. 520505/2023); and paragraph 23 in Barrios Gramajo v Fox Ride Inc. (Index No. 525473/2023). What is disturbing in the usage of the identical content is that there is no differentiation between cases where there are multiple doctors reporting their findings or where there is only one doctor. As in the instant case, where there was only Dr. Selznick, they all use the plural word "doctors." This is misleading as the paragraph conveys that multiple doctors made findings on physical examinations. Incidentally, in the instant case, the findings were not "near normal." They were completely normal.

The attorney affirmations submitted by defense counsel next contain the following paragraph:

In light of the affirmations submitted by defendant's doctor, it is clear that defendants have made a prima facie showing that plaintiff's allegations of injury were either not caused in this accident, and/or have not resulted in impairments which would qualify as serious injury in this accident, such that the action should be dismissed, unless plaintiff can present competent medical evidence sufficient to demonstrate an issue of fact. See Toure v. Avis Rent A Car, supra, 98 NY2d 345 (2002); Vilomar v. Castillo, 73 AD3d 758 (2nd Dept. 2010); Ortiz v. Ianina Taxi, 73 AD3d 721 (2nd Dept. 2010); Valentin v. Pomilla, 59 AD3d 184 (1st Dept. 2009); DeJesus v. Paulino, 61 AD3d 605 (1st Dept. 2009). (NYSCEF Doc No. 24 ¶ 21.)

The corresponding identical paragraph numbers in the sampled cases are 21 in Burd v Rikelman (Index No. 514311/2018); 30 in St. Louis v Revishvili (Index No. 513654/2022) (individual plaintiffs are named); 22 in Berthold v Williams (Index No. 508768/2023); 24 in Thomas v Peak Limo Inc. (Index No. 515578/2023); 24 in Jean Philippe v Islam (Index No. 520505/2023); and 24 in Barrios Gramajo v Fox Ride Inc. (Index No. 525473/2023). The carelessness of this paragraph is evidenced by the reference to "defendant's doctor" in the singular and immediately afterwards to "defendants" in the plural. This occurs regardless of whether there is one defendant or multiple ones being represented by defense counsel.

Sanctions for Frivolous Conduct in the Nature of Material False Factual Statements

"[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" (id. 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"]).

Conversely, it has been held:

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, 700 N.Y.S.2d 71). 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]; Elting v Shawe, 129 AD3d 648 [2d Dept 2015].)

Discussion

At the hearing, Defendant's attorney stated that he was preparing affirmations in various motions and erroneously included the statements adverted to by the Court, including the one pertaining to radiological evidence. He did not elaborate on exactly how many motions he was working on.

Opposing counsel (for Plaintiff) informed the Court that he had previously dealt with Defendant's attorney and found him to be honorable and approachable in terms of settling matters. In the instant matter, Plaintiff's counsel recognized weaknesses in his client's case and pursued settlement, which was readily agreed to by defense counsel. Since the matter was settled, Plaintiff's counsel did not submit opposition to the serious injury threshold summary judgment motion. Had he done so, he would have scrutinized the attorney affirmation and called any errors to the Court's attention. It is apparent to the Court that Plaintiff's counsel did not [*7]support the imposition of sanctions predicated on the contents of Defendant's attorney affirmation.

It is to be expected that when the same principles of law apply to an issue which recurs in litigation, there will be an identicality of content in presentations to the courts. However, when one is dealing with facts, use of identical statements is replete with challenges. What is standard must become individualized. The assertion of facts which might apply in one situation to every single other situation without a single change poses the potential for error, inaccuracy, misstatement, or falsity. Indeed, that is what transpired here. The attorney affirmation in support of Defendant's serious injury threshold summary judgment motion informed the Court that radiological evidence supported the position that Plaintiff's allegations of injury were not related to the subject accident. This was outright inaccurate because there was no radiological evidence, and neither did Defendant's IME doctor opine that there was a lack of proximate causation. Valuable time spent by the Court in searching for an MRI or other diagnostic imaging report could have been spent on reviewing a motion in another case.

The lack of care as to accuracy in the attorney affirmations submitted by the law firm is manifest when there is no change even in reference to parties or doctors — whether there is only one doctor or more. If there is only one doctor's affirmed report, then referring to "doctors" is erroneous. The respect for the Court is diminished when the same typographical and citation errors are included. The earliest of the attorney affirmations sampled for purposes of this decision was dated April 23, 2022 (in Burd v Rikelman [Index No. 514311/2018]), and the latest was dated December 17, 2025 (in the instant action). Occasional typographical and citation errors are expected but, surely, in a period of over two a half years, an effort could have been made to correct recurring ones. Moreover, the extended period of lack of attention to the specific details of the facts in each particular case casts a shadow on the credibility of arguments advanced. While other paragraphs in the attorney affirmations contained matter specific to each case (such as range of motion findings), boilerplate inaccuracies (the universal reference to radiological evidence where none exists) should not be tolerated.

Here, the misstatements as to radiological evidence, eliminating the accident as a cause of the conditions alleged, Plaintiff's confinement to bed and employment situation, and multiple doctors for defendant reporting near normal findings cannot be attributed merely to working on multiple motions. This is evident from the usage of the exact same boilerplate paragraphs where it is obvious that they are not assiduously reviewed for individual accuracy. As such, the Court concludes that material factual statements that are false were asserted (see Cram v Keller, 166 AD3d 846).

However, "the circumstances under which the conduct took place" (22 NYCRR 130-1.1 [c]) must be taken into account in determining whether there was frivolous conduct. The Court takes into account that Plaintiff did not suffer prejudice inasmuch as he was not confronted with having to rebut the inaccuracies — he did not need to interpose opposition because the action was settled. If he had to, then the time Plaintiff would have needed to rebut the affirmation — in addition to the Court's time having already been wasted — would have become a factor. Also considered is Plaintiff's counsel's entreaty as to counsel's integrity and the lack of malevolent [*8]intent. Defendant's attorney was contrite and the Court presumes that the misstatements and inaccuracies will not be repeated. Proportionality weighs against sanctions here. The Court possesses broad discretion in determining whether sanctions are appropriate, and that discretion should be exercised with restraint. In light of these factors, the Court does not impose a sanction in this instance.

Conclusion

The within sanctions hearing is closed without the issuance of a sanctions order.

May 24, 2026

HON. AARON D. MASLOW

Justice of the Supreme Court of the State of New York