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LAW OFFICES OF

MICHAELS. ROSS

Michael S. Ross (MR-3626) LAW OFFICES OF MICHAELS. Ross 60 East 42nd Street, 4 71

h Floor New York, New York 10165 Telephone: (212) 505-5200

Attorneys for Oleg Smolyar, Esq.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------- )( SHERI LUSCIER,

Plaintiff,

-against-

RISINGER BROTHERS TRANSFER INC. and DARVIN RAY PHILLIPS,

Defendants.

--------------------------------------------------------------- )(

Civil Case No. 13-cv-8553 (PKC)

DECLARATION OF OLEG SMOLY AR, ESQ., IN RESPONSE TO THE JUNE 23, 2015 ORDER TO SHOW CAUSE

Pursuant to 28 U.S.C. Section 1746, I hereby declare as follows:

A. INTRODUCTION.

1. I am an attorney duly admitted to practice before the Courts of the State of

New York.

2. The factual statements made in this Declaration are based upon my personal

knowledge and information and belief, the sources of which are: conversations with lawyers at the

Hallock & Malerba, P.C., law firm, to which I am of counsel; my review of files concerning this

matter which are in my possession; my review of the relevant documents accessible through this

Case 1:13-cv-08553-PKC Document 85 Filed 07/13/15 of 32

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Court's PACER docketing system; and conversations with my counsel who, along with his staff, has

reviewed the various documents which are discussed below.

3. I make this Declaration in response to this Court's June 23, 2015 Order to

Show Cause (the "Order to Show Cause" or the "June 23rd Order"), and to this Court's supplemental

July 1, 2015 Order (the "July 1st Order"). The Order to Show Cause asserts that I improperly signed

and notarized my client's name on a May 29, 2015 affidavit, and directs me to show cause why I

should not be sanctioned pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed. R. Civ.

P.") (affidavits or declarations submitted in bad faith); Fed. R. Civ. P. 11(b) and (c)(3) (sua sponte

sanctions based upon representations to the Court); 28 U.S.C. Section 1927 (unreasonable and

vexatious litigation); and the inherent power of this Court. The July 1st Order further directs me to

respond with particularity to the Order to Show Cause and to the statements made concerning my

conduct in the Affirmations of Mr. Hallock and Ms. Malerba.

4. As discussed below, I signed and notarized Sheri Luscier's May 29, 2015

Affidavit because I believed I was allowed to do so pursuant to Ms. Luscier's Power of Attorney,

and because I believed that the Affidavit would subsequently be reviewed with Ms. Luscier prior to

being submitted to this Court. I now fully recognize that my notarization of my own signature was

improper. Having said that, I assure this Court that my conduct, which is discussed below, was the

result of my profound naivety and not any venality. I am truly remorseful for what I did. I recognize

that my conduct has jeopardized my career, my livelihood and the future of my family that I love

dearly. I deeply regret my actions and, I respectfully submit, they are uncharacteristic of who I am

as a person and as an attorney. For the reasons set forth below, I respectfully ask this Court not to

sanction me.

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B. MY PERSONAL AND PROFESSIONAL BACKGROUND.

5. In determining whether a sanction should be imposed upon me for my conduct

and, if so, what that sanction should be, I believe it helpful for this Court to consider my personal

and professional background - a background which, I respectfully submit, has always reflected a

deep respect for the honesty and integrity of the litigation process, as well as the complete absence

of any disciplinary history.

6. I was born in 1979 in Zhitomir, Ukraine, and was raised by my mother. In

1993, when I was 14 years old, my single mother and I immigrated to the United States in order to

gain religious freedom. My father abandoned us when I was one year old, and I was raised by my

mother in a single-parent household and have worked since the age of nine. Although my mother

was a licensed dentist in Ukraine, in the United States, she has not been able to practice dentistry and

has been employed in New York as a home attendant. I attended New Utrecht High School in

Brooklyn, and despite English being a foreign language to me, I worked hard and performed well

in high school. While attending high school, I worked various odd jobs to help support myself and

my mother, such as cleaning stores and restaurant kitchens and delivering flyers.

7. I graduated from New Utrecht High School in 1998 and enrolled in Brooklyn

College to pursue a degree in Psychology with a minor in Political Science. I have always wanted

to be an attorney and knew that I would be applying to law school and so I worked very hard and

earned good grades. While attending college, I was a member ofthe school's swimming team and

I was a competitive ballroom dancer. In addition, I continued to work various odd jobs to help

support myself and my mother.

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8. I graduated from Brooklyn College in 2002 and, at that time, I was already in

the process of applying to various law schools. I applied only to New York law schools because I

wanted to remain close to my mother so I could continue to help her. I was accepted to and enrolled

in City University ofNew York Law School ("CUNY Law School"). Because of my class schedule,

I could no longer continue to work part time and, instead, chose to concentrate on my studies.

During my third year oflaw school, I became interested in personal injury law as a result of frequent

anecdotes told by my New York Practice Law Professor, Laura Gentile, Esq., who is herself a New

York personal injury lawyer. I obtained an unpaid internship with Professor Gentile for six months

while I was in law school, during which time I shadowed her and assisted her in drafting various

documents. I found this experience invaluable.

9. I graduated from CUNY Law School in 2005 and I studied for and passed the

February 2006 New York Bar Examination. I was admitted to the New York Bar in September of

2006. Later that year, I began working as an associate at Tikhomirov & Roytblat, P.L.L.C., a general

practice law firm in Brooklyn, New York, where I concentrated my work in personal injury litigation.

In 2010, the Tikhomirov firm was dissolved and I began working with Larry Hallock, Esq., a solo

practitioner who concentrated in personal injury litigation. Thereafter, I opened my own law firm,

the Law Office of Oleg Smolyar, P .C., and also began performing work for a firm of which Mr.

Hallock was a name partner, Hallock & Malerba, P.C. (the "Firm").

10. Over the next five years and until the present time (i.e., from 2010 to 20 15),

I have continued to serve as of counsel to Mr. Hallock and the Firm. During that time, I have

conducted hundreds of depositions (sometimes two per day for multiple weeks straight) and handled

hundreds of state court appearances (sometimes on five to ten separate cases in a single day). I have

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also authored hundreds of submissions for and against summary judgment, and have written several

successful appellate briefs to the Appellate Division for the Second Judicial Department. Since

February of2015, I have worked out of my apartment in Brooklyn doing work exclusively for the

Firm. Work was typically assigned to me by the Firm's attorneys by telephone or e-mail. I was paid

a bi-weekly fixed annual salary of$85,000.

11. In my ten years of practice, having made hundreds of appearances and written

hundreds of briefs, I have never been the subject of attorney discipline, court sanctions, or any

formal complaint.

12. I am married and am the proud father of a two-year-old son, and my wife is

currently pregnant and due to give birth to another son in two months. My wife is a nurse at Coney

Island Hospital and intends to take maternity leave in the near future. I am the primary means of

support for my wife and child.

C. THE FACTS RELATING To MY PREPARATION AND EXECUTION OF THE MAY 29, 2015 AFFIDAVIT OF Ms. LUSCIER.

13. In the underlying litigation, Luscier v. Risinger Brothers Transfer Inc .. et al.,

(S.D.N.Y. Docket No. 1: 13-cv-08553), the Firm represented Ms. Luscier in connection with a

January 19, 2013 automobile accident. Ms. Luscier was driving a vehicle on the Cross Bronx

Expressway when it collided with a truck driven by Darvin Ray Phillips. Ms. Luscier was taken to

the hospital following the accident and ultimately underwent surgery for her injuries.

14. I became involved in this matter on April 16, 2015. Prior to that, I had no

involvement in this matter or awareness of any facts in this case. On April16, 2015, the defendants

moved for summary judgment. On that same day, Paula L. Leone, a paralegal at the Firm, sent me

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a copy of the defendants' Motion for Summary Judgment on the Issues of Causation and New York's

Serious Injury Threshold (the "Summary Judgment Motion") and related documents, asking me to

"review" those documents. (Copies of thee-mails are attached hereto collectively as "Exhibit A.")

Shortly thereafter, I was advised by Mary Malerba, Esq.- a named partner in the Firm who, along

with Mr. Hallock, would give me work assignments - that the case was in mediation and that I

should continue to review the summary judgment-related documents. Based upon my prior work

for the Firm, I understood that I should not begin the drafting process in Ms. Luscier' s case until the

conclusion of the mediation.

15. At that time, I began to review the plaintiffs medical records, some of which

were attached to the Summary Judgment Motion, and some of which I was able to access remotely

through TrialWorks, which is the Firm's computerized case management system (see

http://www.trialworks.com). In her June 29, 2015 Affirmation in response to the Order to Show

Cause (at para. 2), Ms. Malerba claims that, on April17, 2015, she "sent an email to [me] asking

[me] to please prepare the opposition to the summary judgment motion on threshold." This is

incorrect. Ms. Malerba does not repeat this inaccurate claim in her July 1, 2015 Affirmation to this

Court, and does not attach any April 171h e-mails to me or anyone else to her July 1st Affirmation.

In addition, I have checked my e-mail records and it does not appear that Ms. Malerba sent me any

such e-mail, and I recall that she did not ask me to prepare the opposition papers until May 15, 2015

-which is when she advised me that the case had not settled at mediation (see Exhibit C, infra).

16. Based upon my review of the medical records, I understood that, as a result

of the accident, Ms. Luscier suffered back and neck injuries. In particular, Ms. Luscier's injuries

included: C3-C4 and C5-C6 herniated discs, and an L4-L5 bulging disc. (Copies of the February

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5, 2013 and February 12, 2013 MRis are attached hereto as "Exhibit B.") My review of Ms.

Luscier' s medical records reflected the fact that Ms. Luscier had not previously injured the parts of

her body which were injured in the January 19, 2013 automobile accident (i.e., her neck and back).

(See discussion at pp. 9-11, infra.) This fact was obviously important because of the pre-existing

pathology doctrine.

17. On May 15,2015, at 12:23 p.m., I received an e-mail from Ms. Malerba which

contained an updated list of outstanding motions for me to work on. (A copy of that e-mail is

attached hereto as "Exhibit C.") (Ms. Malerba does not mention this May 15th e-mail in her June 29th

nor July 1st Affirmations to this Court in response to this Court's June 23rct and July 1st Orders.) The

e-mail advised me that Ms. Luscier' s case did not settle at mediation and that the summary judgment

motion and motions in limine 1 were outstanding. The May 15th e-mail did not advise me of the due

date for the motions in Ms. Luscier' s case. However, the May 15th e-mail did instruct me of several

impending deadlines, including: a Motion to Preclude in another matter due on May 21st; a summary

judgment motion in another matter due on May 22"ct; a summary judgment motion in another matter

due on May 29th; a summary judgment motion in another matter due on June 8t\ a summary

judgment motion in another matter due on June 15th; a motion to dismiss in another matter due on

June 22"ct; and a summary judgment motion in another matter due on July 9th (but the judge wanted

the case law in that matter by the July 1st). As was my practice, I prioritized the matters on which

I was working based upon the deadlines and the possibility of eve-of-trial settlements. Accordingly,

on May 15t\ I had not yet started drafting the opposition papers to the Summary Judgment Motion

1I was advised by Mr. Hallock that the motions in limine in connection with a discovery dispute in this matter were ultimately resolved without the need for formal motion practice.

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in Ms. Luscier's case, but I had already reviewed the medical records. Several days later, I began

preparing the opposition papers.

18. On May 27,2015, at 9:57a.m., !received an e-mail from Ms. Malerba which

contained an updated list of outstanding motions for me to work on. (A copy of that e-mail is

attached hereto as "Exhibit D.") As the attached e-mail (Exhibit D) reflects, I was given a deadline

by the Firm with respect to the various non-resolved matters on which I was working- but, for some

reason, I was again not given any deadline for the opposition to the Summary Judgment Motion in

Ms. Luscier's case. (Ms. Malerba does not mention this May 27th 9:57a.m. e-mail in her June 29th

nor July 1st Affirmations to this Court in response to this Court's June 23rct and July 1st Orders.)

19. Several hours later, at 2:08p.m. on May 27th, I received another e-mail from

Ms. Malerba with the subject: "Regarding: Luscier,Sheri (Flores, George) v. Risinger Brothers

Transfer, Inc. URGENT!!!!!!!!!!!!!!!" (A copy ofthat e-mail is attached hereto as "Exhibit E.")

Ms. Malerba's 2:08 p.m. e-mail advised me that Mr. Hallock had instructed me to prepare the

opposition to the Summary Judgment Motion and specifically address the causation issue. (Exhibit

E) Although the e-mail also advised me to oppose a Motion to Preclude the testimony of a treating

doctor, I was told by Mr. Hallock during a telephone conversation later that evening that this issue

had been resolved without the need for motion practice.

20. Later that day on May 2 7t\ at 5:46p.m., Ms. Malerba forwarded me an e-mail

from Robert Gingher, Esq., who had appeared at final pre-trial conference in this case. (A copy of

that e-mail is attached hereto as "Exhibit F.") Among other things, Mr. Gingher's e-mail, which

recounted the events of the pre-trial conference, noted that Your Honor "ordered that plaintiff must

come forward, within 7 days, evidence of actual causation or accident, or Summary Judgment would

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be granted to defendants." (Exhibit F [emphasis in original].) I believe the May 271h e-mails clearly

corroborate my position that I was given a short, "urgent" deadline to submit the opposition papers

in this case.

21. That same day, May 271\ I dove into the process of drafting and completing

the Affirmation in Opposition to the Summary Judgment Motion in Ms. Luscier's case (the

"Affirmation in Opposition"). Over the years, I have prepared many similar oppositions to motions

for summary judgment based upon New York's threshold injury requirement. I typically begin by

using a template of a prior affirmation that I had prepared for another client. I had also already

reviewed and understood the medical records in Ms. Luscier's case and I understood that: 1) she

had, in my view, suffered a serious injury as a result of the January 19, 2013 automobile accident;

and 2) her medical records reflected the fact that she had not previously injured the parts of her body

which were injured in the January 19,2013 automobile accident (i.e., her neck and back).

22. By way of example, the January 30, 2013 report of Dr. John Iozzio (a copy

ofwhich is attached hereto as "Exhibit G") stated (at p. 3) that, "[i]fthe history described by the

patient is correct, it would appear that these complaints and injuries [to her head, neck, upper and

lower back] are casually related to the accident that occurred on January 19, 2013." Similarly, the

February 5, 2013 initial intake report of Advanced Pain Care Medical P.C. (which was attached as

Exhibit E to the Affirmation in Opposition, and a copy of which is attached hereto as "Exhibit H")

did not indicate that Ms. Luscier had sustained any prior injuries to her neck or back and, instead,

indicated that the onset of pain was sudden. I knew from experience that, where there are prior

injuries, those injuries are noted on the initial intake report. In addition, the February 19, 2015

neurological examination report of Dr. William Head, the defendants' own expert, indicated that he

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reviewed Ms. Luscier's medical history and observed that she never had any complaints regarding

her lumbar or cervical spine prior to the January 19, 2013 accident, nor had she ever received

medical treatment to those areas of her body:

"Ms. Luscier denies any past history of a similar accident or similar symptoms. She denies being involved in any other accident or having sustained any injury to herself, since the motor vehicle accident of January 19, 2013."

(Report of Dr. William Head, Exhibit E to the Summary Judgment Motion, a copy of which is

attached hereto as "Exhibit 1", p. 5; see also May 21, 2015 Physician's Affirmation of Dr. Sebastian

Lattuga, Exhibit A to the Affirmation in Opposition, para. 24 [discussing Dr. Head's report], a copy

of which is attached hereto as "Exhibit J.")

23. Likewise, the May 21, 2015 Physician's Affirmation of Ms. Luscier's

Orthopedic Surgeon, Dr. Sebastian Lattuga (Exhibit J hereto), which was attached as part of Exhibit

A to the Affirmation in Opposition, confirmed that Ms. Luscier had no prior injuries to her neck or

back. Dr. Lattuga was very familiar with Ms. Luscier's medical history because, on July 30,2013,

he had performed a cervical discectomy and fusion surgical procedure on Ms. Luscier. (A copy of

the Operation Summary was attached as part of Exhibit A to the Affirmation in Opposition, and a

copy is attached hereto as "Exhibit K.") Dr. Lattuga's May 21st Affirmation (Exhibit J, paras. 5 and

7) stated that, based upon his review ofMs. Luscier's medical records and prior medical history, Dr.

Lattuga had determined in his professional opinion that Ms. Luscier "never had any complaints

regarding her lumbar or cervical spine prior to the January 19, 2013 accident nor had she ever

received medical treatment to those areas of her body." Dr. Lattuga concluded in his Affirmation

that Ms. Luscier's injuries "to the cervical spine cannot possibly ... be unrelated to the January 19,

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2013 accident." (Exhibit J, para. 21) With respect to the neck injuries alleged by Ms. Luscier, Dr.

Lattuga went on to explain that:

"The fact that the patient was asymptomatic prior to the January 19, 2013 accident, the symptoms of pain which the patient demonstrated right after the January 19, 2013 accident and presently, the objective testing performed to the patient's neck since the date of the accident by various medical providers as well as given the recent examination I conducted on January 8, 2015 without any significant improvements, the fact that the patient reached only partial recovery and presently expresses the symptoms of pain, all of these factors taken in summation support my professional medical opinion that the above described injuries Ms. Luscier sustained to her cervical spine could only be caused by a traumatic event of January 19, 2013 accident, which brought about the dramatic changes to her neck. (Exhibit J, para. 21)

24. With respect to the back injuries alleged by Ms. Luscier, Dr. Lattuga similarly

stated in his Affirmation that Ms. Luscier's alleged injuries "to the lumbar spine cannot possibly ...

be unrelated to the January 19, 2013 accident." Dr. Lattuga went on to explain that:

"The fact that the patient was asymptomatic prior to the January 19, 2013 accident, the symptoms of pain which the patient demonstrated right after the January 19, 2013 accident and presently, the objective testing performed to the patient's back since the date of the accident by various medical providers as well as given the recent examination I conducted on January 8, 2015 without any significant improvements, the fact that the patient reached only partial recovery and presently expresses the symptoms of pain, all of these factors taken in summation support my professional medical opinion that the above described injuries Ms. Luscier sustained to her cervical spine could only be caused by a traumatic event of January 19, 2013 accident, which brought about the dramatic changes to her back. (Exhibit J, para. 23)

25. Accordingly, when I prepared the Affirmation in Opposition and the May 291h

Affidavit, I believed in good faith that Ms. Luscier had not suffered prior injuries to her back or neck.

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26. I knew from my experience that the Firm's Affirmation in Opposition in Ms.

Lusicer's case would need to be supported by an Affidavit of Ms. Luscier confirming the truth and

accuracy of the assertions in the Affirmation in Opposition to the Motion for Summary Judgment.

However, within the next two days, I learned from several telephone conversations with Ms. Malerba

that: 1) the Affirmation in Opposition to the Summary Judgment Motion in Ms. Luscier's case was

due by June 1 51; 2) Ms. Luscier was in Massachusetts, and would be unable to physically sign the

document in time to submit that document to the Court; and 3) the Firm had Ms. Luscier's Power

of Attorney, which, as explained to me by Ms. Malerba, permitted the Firm to sign documents on

Ms. Luscier' s behalf. I understand from the Order to Show Cause2 that, at the hearing, Ms. Luscier

confirmed that she had spoken with Ms. Malerba and authorized the Firm to sign the May 291h

Affidavit on her behalf because she was in Massachusetts. (Order to Show Cause, p. 2) I believed

that Ms. Malerba knew that Ms. Luscier did not sign, and could not have signed, the Affidavit

because she was in Massachusetts (and this was confirmed by Ms. Luscier's testimony during the

trial which is referenced in the Order to Show Cause, in which Ms. Luscier acknowledged telling

Ms. Malerba that the Firm had permission to sign the Affidavit on her [Ms. Luscier's] behalf).

27. I did not attempt to verify whether the Firm did, in fact, have a Power of

Attorney executed by Ms. Luscier because I understood it was the Firm's practice to have all new

clients execute a Power of Attorney. Based upon my work for the Firm, I believed that the intake

package for new clients included, in addition to a standard retainer agreement, a standard Power of

2I do not have a copy of the transcripts of the trial proceedings in this case or the exhibits introduced during the testimony of Ms. Luscier.

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Attorney form permitting the Firm, among other things, to endorse and cash checks and to sign

HIPP A authorizations on the clients' behalf.

28. To be clear, although Ms. Luscier was in Massachusetts, Ms. Malerba told me

in no uncertain terms that she would review with Ms. Luscier the Affidavit in support of the

Affirmation in Opposition to the Summary Judgment Motion prior to submitting it to this Court.

I do not typically have contact with clients and, to my best recollection, I did not have contact with

Ms. Luscier.

29. On May 29,2015,6:29 a.m., I replied to Ms. Malerba's May 27th 5:46p.m.

e-mail (which forwarded Mr. Gingher's e-mail describing the pre-trial conference). (A copy of my

e-mail is attached hereto as part of Exhibit F, supra.) In my May 29th 6:29 a.m. e-mail to Ms.

Malerba, I explained that, based upon my review of the pre-trial conference notes in Ms. Luscier' s

case, I understood that "I should oppose the SJ threshold motion, specifically addressing causation

among other things." (Exhibit F) I further advised Ms. Malerba in my e-mail that I would finish the

opposition papers that day and e-mail them to her. (Exhibit F) Again, I respectfully submit that this

correspondence confirms that I was given a short, "urgent" deadline to submit the opposition papers

in this case.

30. On May 29, 2015, I finished drafting the Affidavit in support of the

Affirmation in Opposition to the Summary Judgment Motion and signed it on behalf of Ms. Luscier

based upon my understanding that I had permission to do so in light of the Firm's Power of Attorney.

As I was preparing the Affidavit, it occurred to me that the signature would need to be notarized.

I rarely notarize documents and I did not review the Notary Public License Law prior to notarizing

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my signature on the Affidavit. I assumed without any thought- foolishly and naively- that I was

permitted to notarize my own signature of Ms. Luscier's name because I believed I was authorized,

pursuant to the Power of Attorney, to sign her signature. I did not make the mental connection that

by notarizing my own signature I would be making a false statement to the Court. On reflection, I

understand that I exercised extremely poor judgment and I should have realized that what I was

doing was wrong.

31. By way of explanation, and not to justify my conduct in any way, I want the

Court to understand that I was put by my employers under intense time pressure to respond to a

dispositive motion. I had fully believed that, prior to the Affidavit being submitted to the Court, it

would be reviewed with the client who would confirm its accuracy. As an "of counsel" attorney to

the Firm who typically works remotely, it has generally been my practice to prepare documents based

upon a review of the file, and frequently without any contact with the client. Thereafter, the Firm's

lawyers and paralegals speak with the client and review my proposed drafts and suggest edits and

corrections. I had no reason to believe this case would be any different.

32. To my best recollection, I had never before signed the name of any client onto

any document, nor have I ever notarized my own signature or the signature of an individual who did

not sign in my presence. I was concerned in this case, however, that if I did not "pre-sign" the

Affidavit, it might potentially be too late after Ms. Luscier approved its contents to then have it

signed and submitted it to the Court on time. As Your Honor is aware, the Firm previously failed

to timely submit the opposition papers and Your Honor permitted the Firm several additional days

until June 1st to submit the opposition papers. I only learned of the deadline for the opposition to the

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Summary Judgment Motion several days in advance of the due date. I wanted to help the Firm meet

the filing deadline, but I had no vested interest in the matter and the payment I was to receive from

the Firm was not contingent on winning or losing.

33. Although I "pre-signed" and notarized the May 29th Affidavit, I want to

emphasize that Ms. Malerba had told me - and I had no reason to doubt - that either she or Mr.

Hallock would review the contents of the "draft" (albeit signed) Affidavit with Ms. Luscier prior to

submitting the Affidavit to the Court. Because at the time I had prepared the May 29th Affidavit, I

was working remotely from my home office in Brooklyn, I did not know for a fact whether Ms.

Malerba had spoken with Ms. Luscier and/or whether or not she had reviewed the Affidavit with Ms.

Luscier prior to filing it with the Court. But, again, I believed that would be the case. I believed that

Ms. Malerba knew that Ms. Luscier did not sign, and could not have signed, the Affidavit because

she was in Massachusetts.

34. I prepared the May 29th Affidavit relying on and referencing, among other

things, medical documents which were in the record and which supported the assertions in that

Affidavit. This Court's June 23, 2015 Order to Show Cause noted that, at trial, Ms. Luscier denied

swearing to the truth of the statement in the Affidavit (at para. 22) concerning having no prior

injuries or medical treatment to her neck and back. I respectfully submit, however, that I believed

that the May 29th Affidavit was accurate. I had no knowledge of any prior injuries Ms. Luscier had

sustained to her neck or back and, as noted above (at pp. 9-11, supra), Ms. Luscier' s medical records

indicated that she had not previously injured her neck or back, which were the parts of her body

which were injured in the January 19,2013 automobile.

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35. On May 29th at 5:08p.m., I sent an e-mail to Ms. Malerba and Ms. Leone (a

paralegal of the Firm) attaching the Affirmation in Opposition, along with various exhibits including

the signed and notarized May 29th Affidavit. (A copy ofthat e-mail [without exhibits] is attached

hereto as "Exhibit L.") As noted above, I generally do not have contact with the Firm's clients, other

than during court appearances or depositions. When I prepare clients' affidavits for the Firm's

motion practice, I send those affidavits to the Firm in blank and unsigned form. In this case, because

Ms. Malerba had advised me that the Firm had Ms. Luscier' s Power of Attorney which, in turn,

allowed me to sign her signature on the Affidavit, I had indicated in the cover e-mail to Ms. Malerba

and Ms. Leone that I had attached the "Plaintiffs Affidavit signed, notarized and dated .... " (Exhibit

L)

36. In other words, I specifically indicated in my e-mail that the Affidavit was

signed because I usually do not send signed affidavits to the Firm. Mr. Hallock and Ms. Malerba

had to have known that - in this "urgent" matter - I could not have possibly met with Ms. Luscier

and/or notarized her signature in person. For example, I would draw Your Honor's attention to my

e-mails to Ms. Malerba dated April26, 2015 (8:27p.m.), April27, 2015 (6:25p.m.) and April28,

2015 (2:00p.m.) (copies of which are attached hereto as part ofExhibit R, infra), in which I indicate

that the client's affidavit is "attached" and needs to be signed "ASAP."

37. On June 1, 2015, Mr. Hallock e-filed the Affirmation in Opposition to the

Defendants' Motion for Summary Judgment. The June pt Affirmation was supported by, among

other things, the May 29th Affidavit of Ms. Luscier, which I had prepared and signed. At that point

in time, I was already working on several other matters and I was no longer following the progress

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of Ms. Luscier's case. The PACER Docket in this matter reflects that, on June 9, 2015, this Court

denied the Defendants' Motion for Summary Judgment. A jury was subsequently empaneled on

June 15,2015, and the case proceeded to trial.

38. According to this Court's June 23rd Order to Show Cause, during the

examination of Ms. Luscier on June 16th, Ms. Luscier testified that: 1) she had authorized Ms.

Malerba to sign her name on the May 29th Affidavit because she (Ms. Luscier) was in Massachusetts

at the time; 2) she had not reviewed that Affidavit prior to giving Ms. Malerba permission to sign

it; and 3) Ms. Malerba had not explained to Ms. Luscier that she (Ms. Luscier) was granting the Firm

permission to swear to the truth of the contents of the Affidavit by signing her name. (Order to Show

Cause, p. 2) According to this Court's Order to Show Cause, at side bar conference that same day,

the Court directed Mr. Hallock to have his partner, Ms. Malerba, file an affidavit or declaration by

June 18th explaining the circumstances surrounding Ms. Luscier' s May 29th Affidavit. I was not

informed ofthis request. Thereafter, according to this Court's Order to Show Cause, Your Honor

raised the issue ofthe May 29th Affidavit again with Mr. Hallock on June 19th. According to the

Order to Show Cause, at that time, Mr. Hallock stated that he had not remembered the Court's

directive, that an associate from his Firm was responsible for the May 29th Affidavit, and that he

would secure an affidavit from that associate. To be clear, up to that point in time (and until June

22"d), no one at the Firm had told me of the Court's directive nor asked me to prepare an affidavit

addressing this matter.

39. On the following day, June 19th, the jury rendered a defense verdict. I checked

my phone records and I did not speak with Mr. Hallock on June 19th, 20th, or 21st.

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D. THE FACTS RELATING To MY PREPARATION OF THE JUNE 22, 2015 LETTER To THIS COURT.

40. OnJune22, 2015, Iappearedatadepositioninan unrelated matter from 10:00

a.m. until sometime in the afternoon. I had lunch and then went home. I came home at

approximately 2:30p.m. that day and had not yet checked my e-mail.3 At 4:04p.m. on June 22"ct,

I received a telephone call from Mr. Hallock. I did not see my phone ring and missed his call. I then

returned his call at 4:10p.m. During our telephone conversation, Mr. Hallock told me that there was

some type of trouble with Ms. Luscier's case. He told me that the Firm lost the trial and that Your

Honor had directed me,personally, to immediately submit an affidavit explaining the circumstances

surrounding my signature and notarization of Ms. Luscier's May 29th Affidavit.

41. Mr. Hallock further advised me in that telephone conversation that he had sent

an e-mail to me earlier that day with specific language which I should use in my affidavit to this

Court. (A copyofMr. Hallock's June 22,2015 10:28 a.m. e-mail is attached hereto as "ExhibitM.")

Mr. Hallock did not ask me any questions about the execution of the May 29th Affidavit. He did not

tell me that Ms. Luscier claimed in her trial testimony not to have read the May 29th Affidavit which

I signed and notarized. He simply told me to urgently prepare an affidavit to this Court using the

exact language he hade-mailed to me earlier that morning. Regrettably, I did not question what he

told me to do.

42. I prepared the June 22, 2015letter, which I inaccurately named an "Attorney's

Affidavit," immediately after I finished speaking by telephone with Mr. Hallock on June 22"d. I went

3My e-mail does not automatically appear on my mobile phone; rather, I have to open a web browser, go to yahoo.com, log in with my username and password, and then I can view my e-mails.

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to my computer, copied and pasted the language Mr. Hallock had e-mailed to me verbatim into a

document with this case's caption. I then printed, signed and scanned the document and sent it to

Mr. Hallock by e-mail at 4:46p.m. (and to Ms. Malerba one minute later)- approximately half an

hour after our 4:10p.m. telephone conversation. (Copies of my e-mails to Mr. Hallock and Ms.

Malerba attaching the June 22nd letter are attached collectively hereto as "Exhibit N.") My June 22nd

letter improperly and inaccurately stated, among other things, that I had spoken with Ms. Luscier,

that she had suggested edits to the draft May 29th Affidavit, that I had incorporated those edits, and

that I had read the May 29th Affidavit to Ms. Luscier by telephone prior to her authorizing me to sign

it on her behalf. This was inaccurate. I had not spoken with Ms. Luscier, but had understood that

Ms. Malerba had spoken with her and that Ms. Luscier had authorized Ms. Malerba to have the Firm

sign the May 29th Affidavit on her behalf. I assumed Ms. Malerba had discussed the contents of the

May 29th Affidavit with Ms. Luscier and I naively did not question why Mr. Hallock was suggesting

that I claim that I, and not Ms. Malerba, had spoken with Ms. Luscier and that she had suggested

edits which I incorporated.

43. I intended to submit an affidavit on June 22nd and not an unsworn letter, but

because I quickly copied and pasted the language from Mr. Hallock's e-mail into a document with

the caption of this case, I did not notice that I had omitted the notarization block. I was not intending

to evade the perjury statute.

44. In his June 29, 2015 Affirmation to this Court in response to the Order to

Show Cause (at para. 32), Mr. Hallock implies that he advised me- on Friday, June 19th- that Your

Honor had directed me to prepare an affidavit concerning the execution and notarization of Ms.

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Luscier's May 29th Affidavit. I respectfully submit that this is inaccurate. First, I have no

recollection of speaking with Mr. Hallock on June 19th, and my telephone records reflect that I placed

a single two-minute telephone call to the Firm's paralegal at 11:26 a.m. I clearly recall that in that

two-minute call, which was prompted by a 10:16 a.m. e-mail from the Firm (a copy of which is

attached hereto as "Exhibit 0"), I advised the paralegal that I would not be able to attend the 50-h

hearing on Monday in the case ofHaneefLamont v. NYCT A. et al. (and I did not, in fact, attend that

hearing). I did not make any other calls to (or receive any other calls from) the Firm or Mr. Hallock.

(A copy of my mobile phone records is attached hereto as "Exhibit P."4) I only use my mobile

phone, do not have a land line in my apartment, and Mr. Hallock does not know my wife's telephone

number. Second, I would like to point out to the Court, most respectfully, that Mr. Hallock had

himself sent me the proposed language for my June 22nd submission to the court (which I quoted

verbatim) on June 22nd, at 10:28 a.m. (Exhibit M) If Mr. Hallock had spoken to me on June 19t\

it would not make sense for him to subsequently e-mail me the proposed language on June 22nd.

Moreover, I will note that Mr. Hallock sent me his June 22nd e-mail with the proposed language

before even speaking with me about the events concerning the execution of the May 29th Affidavit.

45. I make no excuse for the inaccurate statements in my June 22nd letter to this

Court or for any of my conduct in this matter. Only by way of explanation, I want this Court to

4Pursuant to this Court's July 1st Order, I have attached hereto as Exhibit P printouts of the results of my searches of my mobile telephone records for April 17, 2015 through June 1, 2015 for telephone calls to and from Ms. Malerba, Mr. Hallock and the Firm. Ms. Malerba's mobile telephone number is (631) 291-7020; Mr. Hallock's mobile telephone number is (516) 909-3719; and the Firm's office telephone numbers are (631) 482-8888 and (631) 482-8886. The telephone calls referenced in the printouts which are relevant to this matter are discussed in this Declaration.

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understand what motivated me to provide to Mr. Hallock my signed June 22, 2015 letter, which

quoted verbatim Mr. Hallock's proposed language, and which was subsequently filed with this Court

by Mr. Hallock. I believed in my mind that ifl did not follow Mr. Hallock's instructions, I would

lose my of counsel position with the Firm. I have a two-year-old child and my wife is seven months

pregnant, and I am the primary means of support for my family (as I mentioned earlier, I had been

practicing nearly 10 years and I am only earning $85,000 per year from the Firm, and I am thankful

to have this employment). Moreover, Mr. Hallock was not simply my employer, but my mentor, and

I did not think that he would direct me to a course of action that would jeopardize my career. I now

recognize that I should have drafted the June 22, 2015 letter to reflect the facts as I knew them and

not simply adopted the "facts" provided to me by Mr. Hallock.

46. Having said that, I again want to emphasize that I make no excuse for my

conduct. I am profoundly remorseful for what I did. I have a great respect for the integrity of the

judicial process and I recognize that a fundamental aspect of that process is the ability of courts to

rely on the representations made by attorneys. I understand that, as an attorney and notary, I have

special obligations to this Court and to the public because of the special level oftrust between courts

and attorneys. I do not take this lightly. I have never before, and will never again, engage in similar

conduct. I recognize that my conduct has jeopardized my career, my livelihood and the future of my

family that I love dearly. I deeply regret my actions and, I respectfully submit, they are truly

uncharacteristic of who I am as a person and as an attorney. I have a deep and profound respect for

the law and for this Court, which I believe is supported by the fact that, over the course of my 10-

year career, I have never been the subject of attorney discipline in any forum.

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47. When I learned of this Court's Order to Show Cause directing me to show

cause why I should not be sanctioned, I promptly retained Michael S. Ross, Esq., whose practice

concentrates in attorney ethics matters, and whose law firm assisted me in preparing this Declaration

in response to the Order to Show Cause. 5

48. Thereafter, on June 25,2015, Mr. Hallock sent me two e-mails (both at 4:45

p.m.) in which he advised me that: 1) the defense attorney in this case wanted an affirmation with

respect to the execution of the May 29th Affidavit; and 2) he was unsure of the facts and I should

contact him before "he" (presumably, the defense attorney) starts an investigation. (Copies of these

e-mails, without attachments, are attached collectively hereto as "ExhibitS.") I respectfully submit

that Mr. Hallock's claim in one these June 25th e-mails that he was unaware of the facts is

inconsistent with his June 22"d e-mail to me in which he proposed the language which described

those supposed facts- i.e., the circumstances of the May 29th Affidavit's execution.

5Pursuant to this Court's June 1st Order, I have attached hereto as "Exhibit Q" printouts of e-mail communications betweenmyselfandMs. MalerbafromApril17, 2015 through June 1, 2015. Separately, I have attached hereto as "Exhibit R" printouts of e-mail communications between myself and Mr. Hallock from April 17, 2015 through June 1, 2015. In order to comply with Your Honor's June pt Order, I have searched my only e-mail account ([email protected]) for communications with Ms. Malerba ([email protected]) and Mr. Hallock (larry@ hallockmalerba.com, [email protected] and [email protected]), and I have attached all responsive e-mails. It is my understanding that the Firm had set up an e-mail account for me with the Firm's address (i.e., [email protected]), but I do not recall ever having accessed or used that account because I believed that every e-mail which was sent to that account was also sent to my [email protected] account, which is the e-mail account I use every day for work and personal matters. In any event, I no longer have access to the Firm's servers or to the oleg@ hallockmalerba.com e-mail account.

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E. THE AFFIRMATIONS OF MR. HALLOCK AND Ms. MALERBA.

49. On June 29,2015, Mr. Hallock submitted his Affirmation "in Opposition" to

this Court's Order to Show Cause. Mr. Hallock's June 29th Affirmation was supported by, among

other things, Ms. Malerba's June 29,2015 Affirmation. I was deeply disappointed to learn that Mr.

Hallock and Ms. Malerba have decided, in essence, to shift all of the responsibility onto me. In sum

and substance, Mr. Hallock and Ms. Malerba claim that, supposedly: 1) prior to Ms. Luscier's

testimony on June 15, 2015, they were not aware that the May 29th Affidavit was not signed by Ms.

Luscier; 2) prior to Ms. Luscier's testimony on June 15,2015, they were not aware that the papers

were improperly notarized; and 3) they were never notified that I could not get in touch with Ms.

Luscier. Mr. Hallock further claims (at para. 45 of his Affirmation) that "[i]t is clear that we did not

know that Ms. Luscier did not sign the papers until after the cross examination." Ms. Malerba makes

the same claim in her June 29th Affirmation6 (at para. 4).

50. According to Mr. Hallock and Ms. Malerba, they had no knowledge of my

signing or notarizing the May 29th Affidavit. Respectfully, this makes no sense. They had to have

known that I had signed the May 29th Affidavit, and that Ms. Luscier could not have possibly signed

it herself. As discussed above, Ms. Malerba had advised me that: 1) the Firm was running out of

time to submit the Affirmation in Opposition; 2) Ms. Luscier was in Massachusetts and could not

sign the affidavit in support of the Affirmation in Opposition; and 3) the Firm had Ms. Luscier's

Power of Attorney, which is why I could sign her signature on the affidavit. Ms. Malerba also told

me that she would review the contents of the affidavit with Ms. Luscier prior to submitting the

6Ms. Malerba's first Affirmation is not dated, but was submitted on June 29, 2015.

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document to the Court. And Ms. Luscier confirmed in her trial testimony that Ms. Malerba had

spoken to her regarding the Power of Attorney issue because Ms. Luscier was in Massachusetts at

the time the affidavit needed to be executed. As this Court noted in its Order to Show Cause (at p.

2), Ms. Luscier had testified that she "remember[ ed] Mary [Malerba] saying, yes, can she have

permission to sign my name because I was in Massachusetts and she was in New York." Mr.

Hallock and Ms. Malerba pointedly ignore the fact that they knew Ms. Luscier was in Masachusetts

and that they could not have expected her to sign any documents in my presence.

51. Ms. Malerba also claims in her June 291h Affirmation (at para. 7) that Ms.

Luscier testified falsely about having permitted Ms. Malerba to sign documents on her behalf. Ms.

Malerba's self-serving statement is, respectfully, inconsistent with: 1) Ms. Luscier's sworn

testimony before this Court; and 2) with what Ms. Malerba had told me concerning Ms. Luscier' s

inability to sign the affidavit and her authorization for the Firm to do so pursuant to its Power of

Attorney. Likewise, Mr. Hallock claims in his Affirmation (at para. 44) that my behavior was "so

far off from normal" that it "cannot be considered a mistake but rather an intentional wrong doing .... "

Again, I respectfully cannot agree with Mr. Hallock's self-serving statement in his Affirmation.

While I make no excuse for my conduct, the characterization of my conduct presented by Mr.

Hallock's and Ms. Malerba's Affirmations are contradicted by the trial testimony of Ms. Luscier and

the e-mails sent to me by Mr. Hallock.

52. On July 1, 2015, Ms. Malerba submitted her Affirmation "in Opposition" to

this Court's July 1st Order. Ms. Malerba stated in her July 1st Affirmation that, from April17, 2015

through June 1, 2015: 1) Ms. Malerba had communicated with Ms. Luscier by telephone and text

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message, and not in person; 2) the communications concerned an ongoing mediation; and 3) in May

of 2015, Ms. Luscier advised Ms. Malerba that she (Ms. Luscier) would be traveling from

Massachusetts to New York, for one night, in order to attend her mediation conference on May 15,

2015. The assertions in Ms. Malerba's Affirmations have been discussed above.

F. THIS COURT HAS DISCRETION NOT To IMPOSE SANCTIONS.

1. INTRODUCTION.

53. I respectfully ask this Court to exercise its discretion and not to impose

sanctions against me pursuant to Fed. R. Civ. P. 56 (affidavits or declarations submitted in bad faith);

Fed. R. Civ. P. 11(b) and (c)(3) (sua sponte sanctions based upon representations to the Court); 28

U.S.C. Section 1927 (unreasonable and vexatious litigation); and the inherent power of this Court.

I address below each of these bases for sanctions which were mentioned in the Order to Show Cause.

2. RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE.

54. Fed. R. Civ. P. 56(h) provides that:

"If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court- after notice and a reasonable time to respond- may order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions."

55. This Court has explained that "an order to pay expenses pursuant to Rule

56(h) requires a finding of 'bad faith,' which courts have found only when the attorney's conduct

is 'egregious,' such as 'where affidavits contained perjurious or blatantly false allegations or omitted

facts concerning issues central to the resolution of the case."' Stem v. Regency Towers. LLC, 886

F. Supp. 2d 317, 327 (S.D.N.Y. 2012) (quoting Jaisan. Inc. v. Sullivan, 178 F.R.D. 412, 415-16

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[S.D.N. Y. 1998]). Sanctions are not appropriate if the conduct did not affect the outcome of the

case, even where such conduct is "egregious." Jaisan, 178 F.R.D. at 417; see also Moorer v.

Grumman Aero. Corp., 964F. Supp. 665, 676(E.D.N.Y. 1997)(decliningtoimposesanctionswhere

plaintiffs counsel did not review plaintiffs deposition testimony prior to submitting affidavit which

contradicted that testimony in opposition to a motion for summary judgment).

56. I did not prepare the May 29, 2015 Affidavit in bad faith or to delay the case,

and I believed the Affidavit to be accurate. This Court's Order to Show Cause (at pp. 2-3) noted that

the May 29th Affidavit asserted that Ms. Luscier "never had any complaints regarding [her] lumbar

or cervical spine prior to the January 19, 2013 accident nor had [she] ever received medical treatment

to those areas of [her] body." I believed this statement to be accurate based upon Ms. Luscier's

medical records, which indicated that she had not previously injured or received medical treatment

to the areas of her body which were injured in the January 19, 2013 automobile accident. (See

discussion at pp. 9-11, supra.) I had no knowledge of any supposed prior injuries.

57. The Order to Show Cause further noted (at p. 1) that defense counsel sought

to establish that Ms. Luscier's injuries were attributable to prior injuries, including a slip and fall at

Wendy's. However, when drafting the May 29th Affidavit, my review of Ms. Luscier's medical

records (and as noted above) reflected the fact that Ms. Luscier had not previously injured the parts

ofher body which were injured in the January 19,2013 automobile accident (i.e., her neck and back).

Accordingly, and without attempting in any way to justify my conduct, the representations in the

May 29th Affidavit were made in good faith.

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58. Finally, I believed that I was authorized to sign Ms. Luscier's name to the

Affidavit pursuant to the Firm's Power of Attorney, and I erroneously believed that I could notarize

the signature because I believed I was allowed to sign the document. As I explained above (at pp.

13-14, supra), I did not make the mental connection that by notarizing the Affidavit which I myself

had signed I would be making a false statement to the Court. I am profoundly sorry for my error.

3. RULE 11 OF THE FEDERAL RULES OF CIVIL PROCEDURE.

59. Fed. R. Civ. P. 11(b) provides that:

"By presenting to the court a pleading, written motion, or other paper - whether by signing, filing, submitting, or later advocating it - an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

( 4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information."

60. This Court has explained that the imposition of court-initiated Rule 11

sanctions requires a finding of subjective bad faith. Cardona v. Mohabir, 2014 U.S. Dist. LEXIS

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62637, *7 (S.D.N.Y. May 6, 2014); Muhammad v. Walmart Stores E .. L.P., 732 F.3d 104, 108 (2d

Cir. 2013); see also Stem v. Regency Towers. LLC, 886 F. Supp. 2d 317, 327 (S.D.N.Y. 2012)

("Sanctions under Rule 11 are appropriate only in 'extraordinary circumstances."' [citations

omitted]). With respect to the issue of bad faith, this Court has explained that:

"[C]ourts in this Circuit have found subjective bad faith in a variety of cases, 'ranging from those involving overtly dishonest or contemptuous behavior, down to those where the court simply regarded an argument as frivolous.' ... One district court has defined the appropriate standard as requiring 'deliberate fraud or wrongdoing.' ... Judge Garaufis in the Eastern District of New York described a finding of subjective bad faith as requiring 'evidence of what might be referred to as 'frivolous-plus.'"'

Cardona, 2014 U.S. Dist. LEXIS 62637, at *7 (internal citations omitted).

61. The purpose ofRule 11 is "to deter rather than to compensate," Cardona, 2014

U.S. Dist. LEXIS 62637, at* 12, and this Court has broad discretion not to impose sanctions even

where counsel's conduct is disappointing, see Brown v. Kay, 2012 U.S. Dist. LEXIS 23086

(S.D.N.Y. Feb. 21, 2012).

62. I respectfully submit that, although I recognize that my conduct was improper,

I did not act in bad faith with respect to my signing of the May 291h Affidavit. I understand that Rule

11 requires a signing attorney to conduct a reasonable inquiry into the assertions made in a

submission to the court. The Notes ofthe Advisory Committee on Rules with respect to the 1983

Amendment to Fed. R. Civ. P. 11 observe that:

"what constitutes a reasonable inquiry may depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or

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other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar."

63. When preparing the May 29th Affidavit, I had reasonably relied on my review

of the file and medical documents in Ms. Luscier' s case. I believed in good faith that I had

performed a reasonable inquiry of the facts asserted in the May 29th Affidavit. As discussed above

(at pp. 9-11, supra), the statements in the May 29th Affidavit were clearly supported by Ms. Luscier's

medical records. I also reasonably believed that either Mr. Hallock or Ms. Malerba would review

the contents of the May 29th Affidavit with Ms. Luscier prior to submitting the Affidavit to this

Court.

64. With respect to my submission ofthe June 22nd letter (the content of which

I copied verbatim from Mr. Hallock's e-mail despite knowing that it was false), I make no excuse

for my conduct and I am profoundly remorseful.

65. In sum, and without attempting m any way to justify my conduct, I

respectfully submit that I performed a reasonable inquiry into the facts of this matter and reasonably

anticipated trial counsel in this case to perform further inquiry, which I believed satisfied my

obligations under Fed. R. Civ. P. 11(b).

4. SECTION 1927 OF TITLE 28.

66. 28 U.S.C. Section 1927 provides that:

"Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct."

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67. As this Court has explained, 28 U.S.C. Section 1927 "requires a finding that

the lawyer acted 'unreasonably and vexatiously,' which has been interpreted to mean for an improper

purpose." Cardona, 2014 U.S. Dist. LEXIS 62637, at *10. I respectfully submit that I did not act

for any improper purpose and did not vexatiously multiply or delay the proceedings.

68. With respect to the May 29th Affidavit, as explained above, I believed that I

was authorized to sign Ms. Luscier' s name to the Affidavit pursuant to the Firm's Power of Attorney,

and I erroneously believed that I could notarize the signature since I was allowed to sign the

document. As I explained above (at pp. 13-14, supra), I did not make the mental connection that by

notarizing the Affidavit which I myselfhad signed I would be making a false statement to the Court.

69. More fundamentally, I believed in good faith that Ms. Luscier satisfied the

serious injury threshold requirements and had no pre-existing pathology, as confirmed by the various

medical evidence discussed above on which I had relied in preparing the opposition papers. In other

words, although the May 29th Affidavit contributed to Your Honor's decision to permit a trial, I

respectfully submit that I believed in good faith that a trial was warranted and could not have acted

vexatiously- i.e., merely to annoy, delay or embarrass.

70. With respect to my submission ofthe June 22"d letter (the content of which

I copied verbatim from Mr. Hallock's e-mail despite knowing that it was false), I make no excuse

for my conduct and I am profoundly remorseful.

5. THE INHERENT POWER OF THIS COURT.

71. Inherent-power sanctions "are appropriate only ifthere is clear evidence that

the conduct at issue is (1) entirely without color and (2) motivated by improper purposes." Wolters

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Kluwer Fin. Servs. v. Sci vantage, 564 F.3d 110, 114 (2d Cir. 2009). "Conduct is entirely without

color when it lacks any legal or factual basis; it is colorable when it has some legal and factual

support, considered in light of the reasonable beliefs of the attorney whose conduct is at issue." Id.

"Imposition of sanctions under a court's inherent powers requires a specific finding that an attorney

acted in bad faith." ld.7

72. For the reasons discussed above, I respectfully submit that I did not, at any

time, act in bad faith or for an improper purpose. I had "pre-signed" the May 291h Affidavit believing

that it would be reviewed with Ms. Luscier by Mr. Hallock or Ms. Malerba, and because I was told

that time was of the essence. I would not have signed the Affidavit if I believed that it contained

inaccurate information or if I believed that it would not subsequently be reviewed with the client.

73. With respect to the June 22"d letter, I recognize that the inaccurate statements

in that letter are my own fault. I offer my sincere and humble apologies. I hope this Court can see

that, sometimes, and very regrettably, a truly good person can make an aberrational mistake which

is entirely at odds with everything else that person has done in his or her life.

G. CONCLUSION.

74. Having addressed above the technical legal issues with respect to the bases

for imposing sanctions on me, I also want the Court to understand that I recognize with utmost

7The Second Circuit has noted that the substantive standards for imposing sanctions pursuant to 28 U.S.C. Section 1927 and inherent power sanctions are essentially the same: "[i]n practice, the only meaningful difference between an award made under § 1927 and one made pursuant to the court's inherent power is ... that awards under § 1927 are made only against attorneys or other persons authorized to practice before the courts while an award made under the court's inherent power may be made against an attorney, a party, or both." Enmon v. Prospect Capital Com., 675 F.3d 138, 143-44 (2d Cir. 2012) (internal quotation marks omitted).

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profoundness that my conduct was sloppy, unprofessional and unworthy of a lawyer. This situation

has caused me more distress than anything that has ever happened to me in my life. If there were

a sanction for unprofessionalism, sloppiness and stupidity, I would be the first to say to the Court

that I should be sanctioned under that standard.

75. At the cost of repetition, I would like to again state that I am profoundly

remorseful for my conduct. I offer my humble apologies to this Court for improperly notarizing Ms.

Luscier' s Affidavit and for the misstatements in my subsequent submission to this Court. I can only

respectfully request that, on behalf of myself and my family, this Court take into consideration my

nearly 10 years of honorable service to the Bar, and the fact that I had acted in good faith.

76. This is an isolated and aberrational incident, and I am hopeful that Your

Honor will resolve this unfortunate episode of my life without taking action that will disrupt my

career, on which my young family depends. I promise that this will never happen again.

I declare under penalty of perjury that the foregoing is true and correct.

Dated: July 13,2015.

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