Preview
FILED: NASSAU COUNTY CLERK 11/22/2022 02:55 PM INDEX NO. 606238/2019
NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 11/22/2022
At IAS Part _ of the Supreme Court
of the State of New York, held in and
for the County of Nassau, at the
Courthouse located at 100 Supreme
Court Drive, Mineola, New York, on the
day of , 2020.
PRESENT: HON.
Justice of the Supreme Court
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
---------------------------------------------------------------------X
MICHAEL JILES ' ORDER TO SHOW CAUSE
Index No.: 606238/2019
.
-agamst-
DENNIS JAMES DEAN, FRANCIS M. DEAN,
KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO
a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO,
and MARCO PEREZ a/k/a MARCO TULIO
SAAVEDRA PEREZ,
Defendant(s).
----------------------------------------------- -----X
12th
Upon the annexed affidavit of the Plaintiff, MICHAEL JILES duly sworn to on the
day of October, 2020, the affirmation of his incoming attorney, JASON A. GREENGERG, ESQ.,
12th
duly affirmed on the day OCtOber, 2020, and upon the exhibits annexed thereto, and all prior
pleadings and proceedings filed or had heretofore herein,
LET the outgoing attorney for Plaintiff, LAW OFFICES OF ROBERT H. BRENT, ESQ.,
show cause before this Court, at the Courthouse located at 100 Supreme Court Drive, in Room
_, on the _____ day of , 2020 at 9:30 am o'clock in the forenoon of that day, or as
soon thereafter as counsel can be heard,
WHY an Order should not be made and entered:
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(1) substituting the LAW OFFICES OF JASON A. GREENBERG, P.C. for the
outgoing law firm as attorneys for the Plaintiff, MICHAERL JILES,
(2) directing the outgoing attorney, LAW OFFICES OF ROBERT H. BRENT, to turn
over itsentire original legal file in connection with its representation of the Plaintiff;
(3) extinguishing any purported charging lien asserted by LAW OFFICES OF
ROBERT H. BRENT pursuant to Judiciary Law 475 based on their ongoing willful and
contumacious conduct, since May 11, 2020, which includes the failure to turn over the
client's file and continuing to hold themselves out to defendant as if they had authority to
negotiate on behalf of Plaintiff;
(4) Awarding costs and sanctions against LAW OFFICES OF ROBERT H. BRENT
based upon frivolous conduct, pursuant to 22 NYCRR 130.1-1; and
(5) For such other and further relief as to Court deem just and and
may proper;
IT IS FURTHER ORDERED, that oral argument isnot required on the return date hereof.
SUFFICIENT CAUSE APPEARING THERFORE, let service of a of this
copy
ORDER TO SHOW CAUSE, together with a copy of the papers upon which it was be
granted,
made upon the LAW OFFICE OF ROBERT H. BRENT on or before the of
day
, 2020 by: Uploading to NYSCEF pursuant which shall be
202.5b,
deemed good and sufficient service
ENTER:
J.S.C
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------ ----------------------------------------------------X
MICHAEL JILES,
AFFIRMATION IN SUPPORT
Plaintiff OF ORDER TO SHOW CAUSE
-against-
Index No.: 606238/2019
DENNIS JAMES DEAN, FRANCIS M. DEAN,
KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO
a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO,
and MARCO PEREZ a/k/a MARCO TULIO
SAAVEDRA PEREZ,
Defendant(s).
____________________ _____________________ X
JASON A. GREENBERG, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the truth of the following, under penalties of perjury, pursuant
to CPLR 2106:
1. I am a partner of the LAW OFFICES OF JASON A. GREENBERG, P.C. ("JAG"),
incoming attorneys of record for the Plaintiff, MICHAEL JILES. As such am I thoroughly
conversant with the facts and circumstances herein based upon the contents of the file maintained
by this office.
2. I make this affirmation in support of the application of Plaintiff, MICHAEL JILES,
seeking an Order directing LAW OFFICES OF ROBERT H. BRENT ("BRENT") to turn over its
entire and original legal file to JAG in connection with this matter, directing BRENT to cease and
desist from performing any and all services on behalf of the Plaintiff, MICHAEL JILES,
extinguishing any purported charging lien asserted by BRENT pursuant to Judiciary Law 475
based on his ongoing willful and contumacious conduct, since May 11, 2020, which includes the
failure to turn over the client's fileand continuing to hold himself out to defendant as if he had
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to negotiate on behalf of Plaintiff; and for such other and further relief as to this Court
authority
seem just and proper, together with the costs and disbursements of this application.
may
3. Briefly, this is an action for serious and permanent personal injuries sustained by the
plaintiff, MICHAEL JILES, as a result of a motor vehicle accident that occurred on May 13, 2016.
4. and through BRENT, Plaintiff commenced this action through the filing of a
By
Summons and Complaint on 2019, a true and correct of which is annexed hereto as
May 7, copy
Exhibit "A". Despite the fact that Plaintiff underwent multiple surgeries, including a cervical fusion,
left knee, and shoulder surgery, the BRENT only commenced this action just as the statute of
limitations was about to expire.
5. Issue was joined through the filing and service of a Verified Answer on or about June
27, 2020, a true and correct copy of which is annexed hereto as Exhibit "B".
6. On May 11, 2020, MICHAEL JILES, retained the services of JAG to prosecute this
case. As such, Mr. JILES executed a Stop Work Letter and Consent to Change Attorney form,
whereby the plaintiff discharged BRENT from performing any and all services in connection with
the afore-described incident and substituted Jason A. Greenberg as attorneys of record. Annexed
"C"
hereto as Exhibit are copies of the Consent to Change Attorney form executed by MICHAEL
JILES, dated and notarized May 11, 2020, together with a copy of the stop work letterand proof that
same was received by BRENT both by fax and Certified Mail.
7. On or about May 15, 2020, your affirmant's office received an email from BRENT
with an undated attached letter,which inter alia, claimed disbursements in the sum of $1,267.06.
Same are annexed hereto an Exhibit "D".
8. In response to same, JAG did immediately send a draft for said sum along with a
letter in response that JAG would pay the outstanding invoices for the depositions and leaving the
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issue of BRENT's purported lien to be resolved to the conclusion of the matter. A copy of these
documents are annexed hereto as Exhibit "E".
9. Since said date, May 15, 2020, my office has leftmultiple messages with BRENT
regarding the pickup of the Plaintiff's MICHAEL JILES file, but has not received a response.
10. On Friday, October 9, 2020, concurrent with the Court's Conference on this matter,
my office did contact via telephone BRENT in an effort to resolve this without Court intervention
and obtain the plaintiff's file.
11. Yesterday, Monday, October 12, 2020, I again called BRENT and spoke with
someone a lady who informed me that he was unavailable, but that he would call me back. To date,
I have stillnot received a return phone call from BRENT.
12. Based on the foregoing, itis clear that JAG, as MICHAEL JILES's incoming counsel,
has made every feasible attempt to obtain the file from BRENT, and that nonetheless BRENT has
failed to comply and has failed to cooperate with your affirmant's office. The utter and total lack of
cooperation from BRENT has prejudiced plaintiff MICHAEL JILES in this action, delayed and
otherwise hindered his ability to resume prosecution of this action, and resulted in the
commencement of this motion practice.
13. Due to the foregoing and ongoing conduct of BRENT, I had my client, Plaintiff
MICHAEL JILES, over to my office yesterday to explain to him the status of his case. Mr. JILES
then signed an Affidavit detailing his reasons for firing BRENT. Same is annexed hereto as Exhibit
"F"
and speaks for itself.
14. As a result of BRENT's deliberate failure to cooperate in this matter, the Plaintiff
further seeks the costs of this motion and the imposition of sanctions upon BRENT.
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15. The law is clear that the Supreme Court may award costs and sanctions in cases like
this where there is an utter failure to turn over a client's file to incoming counsel. (See e.g., Nazario
v. Ciafone, Index No. 22698/2007, 2008 N.Y. Misc. LEXIS 7521 [Sup Ct Queens County January
8, 2008]; Trojanowskiv. Con Edison, Index No. 27399/2007, 2009 N.Y. Misc. LEXIS 5378 [Sup Ct
Queens County July 27, 2009]).
16. Part 130.1-1 of the Rules of the Chief Administrator of the Court, authorizes and
empowers this Court to award costs and/or impose sanctions against a party and/or his attorney for
engaging in frivolous conduct, and states the following:
"(a) The court, in its discretion, may award to any party or attorney in any civil
action or proceeding before the court, except where prohibited by law, costs in the
form of reimbursement for actual expense reasonably incurred and reasonable
attorney's fees, resulting from frivolous conduct as defined in the Part. In addition
to or in lieu of awarding costs, the 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.
(b) The court, as appropriate, may make such award of costs or impose such
financial sanctions against either an attorney or a party to the litigation or against
both. Where the award or sanctions in against an attorney, itmay be against the
attorney personally or upon a partnership, firm, corporation, government agency,
prosecutor's office, legal aid society or public defender's office with which the
attorney is associated and that has appeared as attorney of record. The award or
sanctions may be imposed upon any attorney appearing in the action or upon a
partnership, firm or corporation with which the attorney is associated.
(c) For purpose of this Part, conduct is frivolous if:
(1) it iscompletely without merit in law and cannot be supported by a reasonable
argument for an extension, modification or reversal of existing law;
(2) itis undertaken primarily to delay or prolong the resolution of the litigation, or
to harass or maliciously injure another; or
false."
(3) itasserts material factual statements that are
Frivolous conduct shall include the making of a frivolous motion for costs or
sanctions under the section. In determining whether the conduct undertaken was
frivolous, the court shall consider, among other issues, (1) the circumstances under
which the conduct took place, including the time available for investigating the
legal or factual basis of the conduct; and (2) 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.
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(d) 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.
17. The Court in Nazario stated "in evaluating whether sanctions are appropriate, this
Court will look at a 'broad pattern of the [defendant's] conduct in this regard and not just the question
[of] whether a strand of merit (citations omitted), illusory at that, might be parsed from the
[]."
overwhelming pattern of delay, harassment and obfuscation (Nazario, 2008 N.Y. Misc. LEXIS
** alterations in v. Carol
7521 at 9-10 [internal quotation marks and original], quoting Levy
Management Corp., 260 AD2d 27, 33 [1st Dept. 1999] and citing Wecker v. D'Ambrosio, 6 AD3d
452 [2d Dept. 2004]).
18. The Court in Nazario further elaborated that "sanctions are retributive, in that they
punish past conduct. They also are goal-oriented, in that they are useful in deterring future frivolous
conduct not only by the particular parties, but also by the bar at large. The goals include preventing
the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation
omitted)." (1st *
tactics(citation Levy, at 34 Dept. 1999); (Nazario, 2008 N.Y. Misc. LEXIS 7521 at
10).
19. In the Nazario case that is applicable to the case at hand, the Court condemned
"behavior that lacks professional courtesy, at best, and at worst, stands on the precipice of
intervention." *
disciplinary (Id. at 13). As a consequence, the Court ordered and compelled the
outgoing attorney to immediately deliver the entire file, and the Court imposed sanctions on outgoing
counsel for his deliberate refusal to comply with the numerous requests to produce said file,and
**
further and imposed the costs and sanctions. (Id. at 13-15).
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20. Accordingly, itis respectfully submitted that this Court grant the within application
by MICHAEL JILES and direct BRENT to surrender and turn over the original and complete fileof
its former client, MICHAEL JILES and to forward said file to Jason A. Greenberg.
21. This Court should also discharge and extinguish any purported lien that BRENT
claims to have for legal fees under Judiciary Law 475. It is black letter law that the file is client
property and that the client can discharge the outgoing attorney, at any time, for any reason. (See
Rule of Professional Conduct 1.15(c)(4), "A lawyer shall: . .. (4) Promptly pay or deliver to the
client . .. as requested by the client . .. the funds, securities, or other properties in the possession of
receive"
the lawyer which the client . . .is entitled to and Rule of Professional Conduct 1.16(e),
"Even when withdrawal is otherwise permitted or required, upon termination of representation, a
lawyer shall take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the
rights of the client, including . .. delivering to the client all papers and property to which the client
[.]"
is entitled . ..
22. Failure to turn over the client's fileconstitutes unethical conduct, and itis well-settled
that where, as here, a law firm commits unethical conduct and thereby is discharged for cause, that
outgoing law firm is not entitled to any legal fee whatsoever. (Klein v Eubank, 87 NY2d 459, 464
[1996]; Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 45 [1990] ; Smerda v City of New
York, 7 AD3d 511 [2nd Dept. 2004]).
23. This Court should note that, for service purposes, this is an NYSCEF e-filed case,
and BRENT is signed up as an e-filing participant. Inasmuch as outgoing counsel will be deemed
served with this Order to Show Cause when itis uploaded (See 22 NYCRR 202.5b) we respectfully
submit that NYSCEF would be sufficient for service purposes.
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24. In light of the foregoing, it is respectfully requested that this Court grant the relief
requested in its entirety.
25. Pursuant to CPLR 2217(b) there has been no prior application for this relief sought
herein.
WHEREFORE, it is respectfully requested that this Honorable Court grant the relief
requested, and fashion such other and further relief as it may deem just, proper, and equitable,
attorneys'
together with the fees, sanctions, costs and disbursements of this proceeding.
Dated: Freeport, New York
October 12, 2020
R itted,
SON . ENB , .
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SUPREME COURT OF THE STATE OF NEW YORK Index No.:
COUNTY OF NASSAU Date Filed: May 7, 2019
--------------------------------------------------------------------X
MICHAEL JILES, SUMMONS
Plaintiff,
Plaintiffs designate Nassau
-against- County as theplace of trial.
The basisof Venue is:
DENNIS JAMES DEAN, FRANCIS M. DEAN, pLAINTIFF'S RESIDENCE
KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO
a/k/a SAAVEDRA KEIRA YOJAIRA PlaintiffMICHAEL JILES
ALVARADO,
resides at
and MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA
25 Louis Ave,
Elmont, New York 11003
Defendants.
------------------------------------------------------------------X
To the above named Defendant(s):
YOU ARE HEREBY SUMMONED to answer the complaint in this action, and to serve a copy
of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance on
Plaintiffs'
the attorney(s) within twenty days after the service of this summons, exclusive of the day of
service, where service is made by delivery upon you personally within the state,or, within 30 days after
completion of service where service is made in any other manner. In case of your failure to appear or
answer, judgment will be taken against you by default for the relief demanded herein.
Dated: Forest Hills,New York
May 7, 2019 Yours, etc.
By: Robert H. Brent, Esq.
LAW OFFICE OF ROBERT H. BRENT, ESQ., PC
Attorneys for Plaintiff
MICHAEL JILES
71-50 Austin Street, Suite 102
Forest Hills, New York 11375
(718) 747-8824
Defendants'
Address:
DENNIS JAMES DEAN KEIRA ALVARADO a/k/a
150 Hendrickson Avenue SAAVEDRA ALVARADO a/k/a
Rockville Center,New York 11570 SAAVEDRA KEIRA YOJAIRA ALVARADO
26 Sammis Place
FRANCIS M. DEAN Hempstead, New York 11550
150 Hendrickson Avenue
Rockville Center,New York 11570 MARCO PEREZ
a/k/a MARCO TULIO SAAVEDRA PEREZ
6801 Union Court
Fredericksburg, Virginia 22407
Notice: The nature of thisaction isfor severe personal injuriessustained as a resultof an automobile accident that
occurred on President Street at theintersection of Front Street,Village of Hempstead, Town of Hempstead, County
of Nassau and State ofNew York.
The amount of damages sought exceeds thejurisdictional limitsof alllower courts which would otherwise have
jurisdiction.Upon your failureto appear,judgment will be taken against you by defaultfor damages with interest
from May 13. 2016 and the cost ofthisaction.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--------------------------------------------------------------------X Index No.:
MICHAEL JILES,
VERIFIED COMPLAINT
Plaintiff,
-against-
DENNIS JAMES DEAN, FRANCIS M. DEAN,
KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO
a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO,
and MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA
PEREZ,
Defendants.
------------------------------------------------------------X
Plaintiff, by his attorney, LAW OFFICE OF ROBERT H. BRENT, ESQS., PC,
complaining of the Defendants respectfully set forth and allege:
1. Upon information and belief, that at all times herein mentioned, Plaintiff
MICHAEL JILES was and stillis a resident of the Village of Hempstead, Town of Hempstead,
County of Nassau and State of New York.
2. At all times herein mentioned, Defendant DENNIS JAMES DEAN was and still
is a resident of the Village of Rockville Center, Town of Hempstead, County of Nassau and State
of New York.
3. At all times herein mentioned, Defendant FRANCIS M. DEAN was and stillis a
resident of the Village of Rockville Center, Town of Hempstead, County of Nassau and State of
New York.
4. At all times herein mentioned, Defendant KEIRA ALVARADO a/k/a
SAAVEDRA ALVARADO a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO was and still
is a resident of Village of Hempstead, Town of Hempstead, County of Nassau and State of New
York.
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5. At all times herein mentioned, Defendant MARCO PEREZ a/k/a MARCO
TULIO SAAVEDRA PEREZ, was and still is a resident of the City of Fredericksburg,
CommonwealthofVirginia.
6. At the times herein mentioned, Defendant FRANCIS M. DEAN was the registrant
and owner of a motor vehicle bearing New York State license plate number GKX9661.
7. At all times herein mentioned Defendant FRANCIS M. DEAN, managed,
maintained, supervised and controlled the motor vehicle bearing New York State license plate
number GKX9661.
8. At all times herein mentioned defendant DENNIS JAMES DEAN, operated the
motor vehicle bearing New YorkStatelicenseplatenumberGKX9661.
9. At all times hereinafter mentioned, Defendant DENNIS JAMES DEAN, operated
the aforesaid motor vehicle bearing New York State license plate number GKX9661 with the
knowledge, permission and consent of the owner, Defendant FRANCIS M. DEAN.
10. At the times herein mentioned, Defendant MARCO PEREZ a/k/a MARCO
TULIO SAAVEDRA PEREZ, was the registrant and owner of a motor vehicle bearing
Commonwealth of Virginia license plate number VKV3081.
11. At alltimes herein mentioned Defendant MARCO PEREZ a/k/a MARCO TULIO
SAAVEDRA PEREZ, managed, maintained, supervised and controlled the motor vehicle
bearing Commonwealth of Virginia license plate number VKV3081.
12. At all times herein mentioned Defendant KEIRA ALVARADO a/k/a
SAAVEDRA ALVARADO a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO, operated the
motor vehicle bearing Commonwealth of Virginia license plate number VKV3081.
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13. At all times hereinafter mentioned, Defendant KEIRA ALVARADO a/k/a
SAAVEDRA ALVARADO a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO, operated the
aforesaid motor vehicle bearing Commonwealth of Virginia license plate number VKV3081 with
the knowledge, permission and consent of the owner, Defendant MARCO PEREZ a/k/a
MARCO TULIO SAAVEDRA PEREZ.
Preview
FILED: NASSAU COUNTY CLERK 11/22/2022 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 11/22/2022 At IAS Part _ of the Supreme Court of the State of New York, held in and for the County of Nassau, at the Courthouse located at 100 Supreme Court Drive, Mineola, New York, on the day of , 2020. PRESENT: HON. Justice of the Supreme Court SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------------------------------------------------X MICHAEL JILES ' ORDER TO SHOW CAUSE Index No.: 606238/2019 . -agamst- DENNIS JAMES DEAN, FRANCIS M. DEAN, KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO, and MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA PEREZ, Defendant(s). ----------------------------------------------- -----X 12th Upon the annexed affidavit of the Plaintiff, MICHAEL JILES duly sworn to on the day of October, 2020, the affirmation of his incoming attorney, JASON A. GREENGERG, ESQ., 12th duly affirmed on the day OCtOber, 2020, and upon the exhibits annexed thereto, and all prior pleadings and proceedings filed or had heretofore herein, LET the outgoing attorney for Plaintiff, LAW OFFICES OF ROBERT H. BRENT, ESQ., show cause before this Court, at the Courthouse located at 100 Supreme Court Drive, in Room _, on the _____ day of , 2020 at 9:30 am o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, WHY an Order should not be made and entered: FILED: NASSAU COUNTY CLERK 11/22/2022 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 11/22/2022 (1) substituting the LAW OFFICES OF JASON A. GREENBERG, P.C. for the outgoing law firm as attorneys for the Plaintiff, MICHAERL JILES, (2) directing the outgoing attorney, LAW OFFICES OF ROBERT H. BRENT, to turn over itsentire original legal file in connection with its representation of the Plaintiff; (3) extinguishing any purported charging lien asserted by LAW OFFICES OF ROBERT H. BRENT pursuant to Judiciary Law 475 based on their ongoing willful and contumacious conduct, since May 11, 2020, which includes the failure to turn over the client's file and continuing to hold themselves out to defendant as if they had authority to negotiate on behalf of Plaintiff; (4) Awarding costs and sanctions against LAW OFFICES OF ROBERT H. BRENT based upon frivolous conduct, pursuant to 22 NYCRR 130.1-1; and (5) For such other and further relief as to Court deem just and and may proper; IT IS FURTHER ORDERED, that oral argument isnot required on the return date hereof. SUFFICIENT CAUSE APPEARING THERFORE, let service of a of this copy ORDER TO SHOW CAUSE, together with a copy of the papers upon which it was be granted, made upon the LAW OFFICE OF ROBERT H. BRENT on or before the of day , 2020 by: Uploading to NYSCEF pursuant which shall be 202.5b, deemed good and sufficient service ENTER: J.S.C FILED: NASSAU COUNTY CLERK 10/21/2020 11/22/2022 01:06 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 48 175 RECEIVED NYSCEF: 10/16/2020 11/22/2022 1 of 2 FILED: NASSAU COUNTY CLERK 10/21/2020 11/22/2022 01:06 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 48 175 RECEIVED NYSCEF: 10/16/2020 11/22/2022 2 of 2 FILED: NASSAU COUNTY CLERK 10/13/2020 11/22/2022 12:44 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 41 175 RECEIVED NYSCEF: 10/13/2020 11/22/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------ ----------------------------------------------------X MICHAEL JILES, AFFIRMATION IN SUPPORT Plaintiff OF ORDER TO SHOW CAUSE -against- Index No.: 606238/2019 DENNIS JAMES DEAN, FRANCIS M. DEAN, KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO, and MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA PEREZ, Defendant(s). ____________________ _____________________ X JASON A. GREENBERG, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following, under penalties of perjury, pursuant to CPLR 2106: 1. I am a partner of the LAW OFFICES OF JASON A. GREENBERG, P.C. ("JAG"), incoming attorneys of record for the Plaintiff, MICHAEL JILES. As such am I thoroughly conversant with the facts and circumstances herein based upon the contents of the file maintained by this office. 2. I make this affirmation in support of the application of Plaintiff, MICHAEL JILES, seeking an Order directing LAW OFFICES OF ROBERT H. BRENT ("BRENT") to turn over its entire and original legal file to JAG in connection with this matter, directing BRENT to cease and desist from performing any and all services on behalf of the Plaintiff, MICHAEL JILES, extinguishing any purported charging lien asserted by BRENT pursuant to Judiciary Law 475 based on his ongoing willful and contumacious conduct, since May 11, 2020, which includes the failure to turn over the client's fileand continuing to hold himself out to defendant as if he had 1 1 of 7 FILED: NASSAU COUNTY CLERK 10/13/2020 11/22/2022 12:44 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 41 175 RECEIVED NYSCEF: 10/13/2020 11/22/2022 to negotiate on behalf of Plaintiff; and for such other and further relief as to this Court authority seem just and proper, together with the costs and disbursements of this application. may 3. Briefly, this is an action for serious and permanent personal injuries sustained by the plaintiff, MICHAEL JILES, as a result of a motor vehicle accident that occurred on May 13, 2016. 4. and through BRENT, Plaintiff commenced this action through the filing of a By Summons and Complaint on 2019, a true and correct of which is annexed hereto as May 7, copy Exhibit "A". Despite the fact that Plaintiff underwent multiple surgeries, including a cervical fusion, left knee, and shoulder surgery, the BRENT only commenced this action just as the statute of limitations was about to expire. 5. Issue was joined through the filing and service of a Verified Answer on or about June 27, 2020, a true and correct copy of which is annexed hereto as Exhibit "B". 6. On May 11, 2020, MICHAEL JILES, retained the services of JAG to prosecute this case. As such, Mr. JILES executed a Stop Work Letter and Consent to Change Attorney form, whereby the plaintiff discharged BRENT from performing any and all services in connection with the afore-described incident and substituted Jason A. Greenberg as attorneys of record. Annexed "C" hereto as Exhibit are copies of the Consent to Change Attorney form executed by MICHAEL JILES, dated and notarized May 11, 2020, together with a copy of the stop work letterand proof that same was received by BRENT both by fax and Certified Mail. 7. On or about May 15, 2020, your affirmant's office received an email from BRENT with an undated attached letter,which inter alia, claimed disbursements in the sum of $1,267.06. Same are annexed hereto an Exhibit "D". 8. In response to same, JAG did immediately send a draft for said sum along with a letter in response that JAG would pay the outstanding invoices for the depositions and leaving the 2 2 of 7 FILED: NASSAU COUNTY CLERK 10/13/2020 11/22/2022 12:44 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 41 175 RECEIVED NYSCEF: 10/13/2020 11/22/2022 issue of BRENT's purported lien to be resolved to the conclusion of the matter. A copy of these documents are annexed hereto as Exhibit "E". 9. Since said date, May 15, 2020, my office has leftmultiple messages with BRENT regarding the pickup of the Plaintiff's MICHAEL JILES file, but has not received a response. 10. On Friday, October 9, 2020, concurrent with the Court's Conference on this matter, my office did contact via telephone BRENT in an effort to resolve this without Court intervention and obtain the plaintiff's file. 11. Yesterday, Monday, October 12, 2020, I again called BRENT and spoke with someone a lady who informed me that he was unavailable, but that he would call me back. To date, I have stillnot received a return phone call from BRENT. 12. Based on the foregoing, itis clear that JAG, as MICHAEL JILES's incoming counsel, has made every feasible attempt to obtain the file from BRENT, and that nonetheless BRENT has failed to comply and has failed to cooperate with your affirmant's office. The utter and total lack of cooperation from BRENT has prejudiced plaintiff MICHAEL JILES in this action, delayed and otherwise hindered his ability to resume prosecution of this action, and resulted in the commencement of this motion practice. 13. Due to the foregoing and ongoing conduct of BRENT, I had my client, Plaintiff MICHAEL JILES, over to my office yesterday to explain to him the status of his case. Mr. JILES then signed an Affidavit detailing his reasons for firing BRENT. Same is annexed hereto as Exhibit "F" and speaks for itself. 14. As a result of BRENT's deliberate failure to cooperate in this matter, the Plaintiff further seeks the costs of this motion and the imposition of sanctions upon BRENT. 3 3 of 7 FILED: NASSAU COUNTY CLERK 10/13/2020 11/22/2022 12:44 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 41 175 RECEIVED NYSCEF: 10/13/2020 11/22/2022 15. The law is clear that the Supreme Court may award costs and sanctions in cases like this where there is an utter failure to turn over a client's file to incoming counsel. (See e.g., Nazario v. Ciafone, Index No. 22698/2007, 2008 N.Y. Misc. LEXIS 7521 [Sup Ct Queens County January 8, 2008]; Trojanowskiv. Con Edison, Index No. 27399/2007, 2009 N.Y. Misc. LEXIS 5378 [Sup Ct Queens County July 27, 2009]). 16. Part 130.1-1 of the Rules of the Chief Administrator of the Court, authorizes and empowers this Court to award costs and/or impose sanctions against a party and/or his attorney for engaging in frivolous conduct, and states the following: "(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expense reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in the Part. In addition to or in lieu of awarding costs, the 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. (b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanctions in against an attorney, itmay be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor's office, legal aid society or public defender's office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated. (c) For purpose of this Part, conduct is frivolous if: (1) it iscompletely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) itis undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or false." (3) itasserts material factual statements that are Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under the section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) 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. 4 4 of 7 FILED: NASSAU COUNTY CLERK 10/13/2020 11/22/2022 12:44 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 41 175 RECEIVED NYSCEF: 10/13/2020 11/22/2022 (d) 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. 17. The Court in Nazario stated "in evaluating whether sanctions are appropriate, this Court will look at a 'broad pattern of the [defendant's] conduct in this regard and not just the question [of] whether a strand of merit (citations omitted), illusory at that, might be parsed from the []." overwhelming pattern of delay, harassment and obfuscation (Nazario, 2008 N.Y. Misc. LEXIS ** alterations in v. Carol 7521 at 9-10 [internal quotation marks and original], quoting Levy Management Corp., 260 AD2d 27, 33 [1st Dept. 1999] and citing Wecker v. D'Ambrosio, 6 AD3d 452 [2d Dept. 2004]). 18. The Court in Nazario further elaborated that "sanctions are retributive, in that they punish past conduct. They also are goal-oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the bar at large. The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation omitted)." (1st * tactics(citation Levy, at 34 Dept. 1999); (Nazario, 2008 N.Y. Misc. LEXIS 7521 at 10). 19. In the Nazario case that is applicable to the case at hand, the Court condemned "behavior that lacks professional courtesy, at best, and at worst, stands on the precipice of intervention." * disciplinary (Id. at 13). As a consequence, the Court ordered and compelled the outgoing attorney to immediately deliver the entire file, and the Court imposed sanctions on outgoing counsel for his deliberate refusal to comply with the numerous requests to produce said file,and ** further and imposed the costs and sanctions. (Id. at 13-15). 5 5 of 7 FILED: NASSAU COUNTY CLERK 10/13/2020 11/22/2022 12:44 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 41 175 RECEIVED NYSCEF: 10/13/2020 11/22/2022 20. Accordingly, itis respectfully submitted that this Court grant the within application by MICHAEL JILES and direct BRENT to surrender and turn over the original and complete fileof its former client, MICHAEL JILES and to forward said file to Jason A. Greenberg. 21. This Court should also discharge and extinguish any purported lien that BRENT claims to have for legal fees under Judiciary Law 475. It is black letter law that the file is client property and that the client can discharge the outgoing attorney, at any time, for any reason. (See Rule of Professional Conduct 1.15(c)(4), "A lawyer shall: . .. (4) Promptly pay or deliver to the client . .. as requested by the client . .. the funds, securities, or other properties in the possession of receive" the lawyer which the client . . .is entitled to and Rule of Professional Conduct 1.16(e), "Even when withdrawal is otherwise permitted or required, upon termination of representation, a lawyer shall take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including . .. delivering to the client all papers and property to which the client [.]" is entitled . .. 22. Failure to turn over the client's fileconstitutes unethical conduct, and itis well-settled that where, as here, a law firm commits unethical conduct and thereby is discharged for cause, that outgoing law firm is not entitled to any legal fee whatsoever. (Klein v Eubank, 87 NY2d 459, 464 [1996]; Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 45 [1990] ; Smerda v City of New York, 7 AD3d 511 [2nd Dept. 2004]). 23. This Court should note that, for service purposes, this is an NYSCEF e-filed case, and BRENT is signed up as an e-filing participant. Inasmuch as outgoing counsel will be deemed served with this Order to Show Cause when itis uploaded (See 22 NYCRR 202.5b) we respectfully submit that NYSCEF would be sufficient for service purposes. 6 6 of 7 FILED: NASSAU COUNTY CLERK 10/13/2020 11/22/2022 12:44 02:55 PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 41 175 RECEIVED NYSCEF: 10/13/2020 11/22/2022 24. In light of the foregoing, it is respectfully requested that this Court grant the relief requested in its entirety. 25. Pursuant to CPLR 2217(b) there has been no prior application for this relief sought herein. WHEREFORE, it is respectfully requested that this Honorable Court grant the relief requested, and fashion such other and further relief as it may deem just, proper, and equitable, attorneys' together with the fees, sanctions, costs and disbursements of this proceeding. Dated: Freeport, New York October 12, 2020 R itted, SON . ENB , . 7 7 of 7 FILED: NASSAU COUNTY CLERK 05/07/2019 10/13/2020 11/22/2022 10:43 12:44 02:55 AM PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 1 42 175 RECEIVED NYSCEF: 05/07/2019 10/13/2020 11/22/2022 SUPREME COURT OF THE STATE OF NEW YORK Index No.: COUNTY OF NASSAU Date Filed: May 7, 2019 --------------------------------------------------------------------X MICHAEL JILES, SUMMONS Plaintiff, Plaintiffs designate Nassau -against- County as theplace of trial. The basisof Venue is: DENNIS JAMES DEAN, FRANCIS M. DEAN, pLAINTIFF'S RESIDENCE KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO a/k/a SAAVEDRA KEIRA YOJAIRA PlaintiffMICHAEL JILES ALVARADO, resides at and MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA 25 Louis Ave, Elmont, New York 11003 Defendants. ------------------------------------------------------------------X To the above named Defendant(s): YOU ARE HEREBY SUMMONED to answer the complaint in this action, and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance on Plaintiffs' the attorney(s) within twenty days after the service of this summons, exclusive of the day of service, where service is made by delivery upon you personally within the state,or, within 30 days after completion of service where service is made in any other manner. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded herein. Dated: Forest Hills,New York May 7, 2019 Yours, etc. By: Robert H. Brent, Esq. LAW OFFICE OF ROBERT H. BRENT, ESQ., PC Attorneys for Plaintiff MICHAEL JILES 71-50 Austin Street, Suite 102 Forest Hills, New York 11375 (718) 747-8824 Defendants' Address: DENNIS JAMES DEAN KEIRA ALVARADO a/k/a 150 Hendrickson Avenue SAAVEDRA ALVARADO a/k/a Rockville Center,New York 11570 SAAVEDRA KEIRA YOJAIRA ALVARADO 26 Sammis Place FRANCIS M. DEAN Hempstead, New York 11550 150 Hendrickson Avenue Rockville Center,New York 11570 MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA PEREZ 6801 Union Court Fredericksburg, Virginia 22407 Notice: The nature of thisaction isfor severe personal injuriessustained as a resultof an automobile accident that occurred on President Street at theintersection of Front Street,Village of Hempstead, Town of Hempstead, County of Nassau and State ofNew York. The amount of damages sought exceeds thejurisdictional limitsof alllower courts which would otherwise have jurisdiction.Upon your failureto appear,judgment will be taken against you by defaultfor damages with interest from May 13. 2016 and the cost ofthisaction. 1 of 17 FILED: NASSAU COUNTY CLERK 05/07/2019 10/13/2020 11/22/2022 10:43 12:44 02:55 AM PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 1 42 175 RECEIVED NYSCEF: 05/07/2019 10/13/2020 11/22/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------------------X Index No.: MICHAEL JILES, VERIFIED COMPLAINT Plaintiff, -against- DENNIS JAMES DEAN, FRANCIS M. DEAN, KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO, and MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA PEREZ, Defendants. ------------------------------------------------------------X Plaintiff, by his attorney, LAW OFFICE OF ROBERT H. BRENT, ESQS., PC, complaining of the Defendants respectfully set forth and allege: 1. Upon information and belief, that at all times herein mentioned, Plaintiff MICHAEL JILES was and stillis a resident of the Village of Hempstead, Town of Hempstead, County of Nassau and State of New York. 2. At all times herein mentioned, Defendant DENNIS JAMES DEAN was and still is a resident of the Village of Rockville Center, Town of Hempstead, County of Nassau and State of New York. 3. At all times herein mentioned, Defendant FRANCIS M. DEAN was and stillis a resident of the Village of Rockville Center, Town of Hempstead, County of Nassau and State of New York. 4. At all times herein mentioned, Defendant KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO was and still is a resident of Village of Hempstead, Town of Hempstead, County of Nassau and State of New York. 2 of 17 FILED: NASSAU COUNTY CLERK 05/07/2019 10/13/2020 11/22/2022 10:43 12:44 02:55 AM PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 1 42 175 RECEIVED NYSCEF: 05/07/2019 10/13/2020 11/22/2022 5. At all times herein mentioned, Defendant MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA PEREZ, was and still is a resident of the City of Fredericksburg, CommonwealthofVirginia. 6. At the times herein mentioned, Defendant FRANCIS M. DEAN was the registrant and owner of a motor vehicle bearing New York State license plate number GKX9661. 7. At all times herein mentioned Defendant FRANCIS M. DEAN, managed, maintained, supervised and controlled the motor vehicle bearing New York State license plate number GKX9661. 8. At all times herein mentioned defendant DENNIS JAMES DEAN, operated the motor vehicle bearing New YorkStatelicenseplatenumberGKX9661. 9. At all times hereinafter mentioned, Defendant DENNIS JAMES DEAN, operated the aforesaid motor vehicle bearing New York State license plate number GKX9661 with the knowledge, permission and consent of the owner, Defendant FRANCIS M. DEAN. 10. At the times herein mentioned, Defendant MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA PEREZ, was the registrant and owner of a motor vehicle bearing Commonwealth of Virginia license plate number VKV3081. 11. At alltimes herein mentioned Defendant MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA PEREZ, managed, maintained, supervised and controlled the motor vehicle bearing Commonwealth of Virginia license plate number VKV3081. 12. At all times herein mentioned Defendant KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO, operated the motor vehicle bearing Commonwealth of Virginia license plate number VKV3081. 3 of 17 FILED: NASSAU COUNTY CLERK 05/07/2019 10/13/2020 11/22/2022 10:43 12:44 02:55 AM PM INDEX NO. 606238/2019 NYSCEF DOC. NO. 1 42 175 RECEIVED NYSCEF: 05/07/2019 10/13/2020 11/22/2022 13. At all times hereinafter mentioned, Defendant KEIRA ALVARADO a/k/a SAAVEDRA ALVARADO a/k/a SAAVEDRA KEIRA YOJAIRA ALVARADO, operated the aforesaid motor vehicle bearing Commonwealth of Virginia license plate number VKV3081 with the knowledge, permission and consent of the owner, Defendant MARCO PEREZ a/k/a MARCO TULIO SAAVEDRA PEREZ.