From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx injury lawyer)

Matter of Christopher L. Musmanno

When a lawyer is admitted to practice law in other states in addition to New York, an imposition of professional discipline by that other state will also lead New York State to consider if the lawyer's conduct deserves some kind of professional discipline by New York; this is called reciprocal discipline.  The purpose is to protect the public from being hurt by its attorneys.

This lawyer's trouble arose out of trying to beat a traffic ticket in New Jersey. After being stopped for an illegal left turn, he told the police officer that he worked for the Union County (N.J.) Prosecutor's Office and showed him an i.d. card issued by the Union County Sheriff's Office.

The Court's decision here doesn't indicate what the i.d. card was for or why Musmanno had it. Suffice it to say Musmanno eventually admitted to the officer that he lied about working for the Union County Prosecutor. He was charged with impersonating a law enforcement officer and obstruction of justice. Musmanno eventually pled guilty to disorderly conduct.

So, "no harm no foul," right? No one was hurt. No one injured. No money stolen. And this attorney should have learned his lesson. Here this story should end, with Musmanno receiving some mild form of attorney discipline that would be private and not public. These things happen all the time, and in minor cases, we never hear about them.

One of my favorite comedians utters one of my favorite lines, which is:  "You can't fix stupid." Musmanno then lies again, this time to the New Jersey lawyer discipline authorities (called the Office of Attorney Ethics). He tells them that the charges against him were "dismissed," but we know that he really pled guilty to disorderly conduct, which should not be a big deal - except that he lied about it.

So now Musmanno has twice lied. True, he didn't commit perjury (lying under oath). Also, he didn't steal anything or hurt any of his clients. But attorneys are held to a higher standard. Or at least we're supposed to be.

On December 3, 2009 the New Jersey Supreme Court censured Musmanno - this means he was slapped on the wrist and told not to do this again - finding that what he did "adversely reflects on the lawyer's honesty, trustworthiness and fitness as a lawyer." And based on all of this, New York's disciplinary authorities gave Musmanno the same punishment: public censure. And thus ends a story that never should have begun.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx Accident Lawyer)

Let's recall my blawg post from August 25, 2009. Loyal Readers will remember that I discussed video surveillance by insurance companies of accident victims - plaintiffs who are hurt and claim to be limited in their ability to engage in physical activity. I also pointed out that:

My point was and is that the Internet and Cyberspace never forget. Everything put out there can be found by a determined investigator. So the answer is simple: If you're hurt or injured from an accident, don't put anything into the on-line universe that contradicts your claims! Don't give the insurance companies evidence against yourself.

This leads to today's blawg topic which has to do with a woman in Canada, Nathalie Blanchard. What happened to her could happen to anyone hurt physically or, as in Nathalie Blanchard's case, hurt or unable to function due to psychological injury or sickness.

Nathalie Blanchard, age 29, worked for IBM, the big computer company.

For reasons unknown to your humble blawger, Blanchard went out on leave from her job at IBM in Quebec, Canada, some year and one-half ago due to major depression. We do not know what caused her depression, or how it was diagnosed and whether it was treat with medication or talk therapy or both or by nothing at all.

We do know that Blanchard got a monthly check from IBM's insurance company, Manulife, until her insurance agent spotted photos of Blanchard on Facebook . . .are you ready?  having fun. Now Manullifer alleges that Blanchard can't be depressed because, "Look, she's having fun."

The photos showed Blanchard at a Chippendales show and on vacation on the beach.

Blanchard says her doctor advised her to get out and have some fun to forget about her problems. He also recommended exercise. Basically, she says that the photos show part of her medically-prescribed treatment for depression - to go out and try to have fun - and don't mean that she was cured.

Blanchard and her lawyer are taking legal action, says the insurer stopped paying Blanchard, costing her thousands of dollars.

Comment: What's peculiar here is this: How did Manulife get into Blanchard's Facebook photos

when her profile was locked and only her "friends" can look past her name?

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident lawyer)

August 18, 2008:

New York's Appellate Division, Second Department, finds: "repeated neglect of legal matters entrusted to [Bryan Holzberg] and fabrications that he made or created with respect thereto" and states the facts:

1. George Begakis

On or about April 24, 2003, Bryan Holzberg was retained by George Begakis to represent Aegean General Contracting, Inc. (hereinafter Aegean), to collect payment under a written contract to provide painting and related interior and exterior services on public housing projects owned by the New York City Housing Authority and to file public improvement liens.

In June 2003, Bryan Holzberg informed Mr. Begakis that he had filed public improvement liens on the subject public housing projects when no liens were filed or placed against any of the subject buildings.

Thereafter, he provided Mr. Begakis false and misleading information about the status of his legal matter.

Such false and misleading information include statements that:

(1) The lawyers for the defense agreed to settle for the full amount due under the contract,

(2) Defendants reneged on the agreement to settle and had appealed,

(3) Defendants lost the appeal and Bryan Holzberg had obtained a judgment against them, and

(4) Bryan Holzberg received a check in full payment, including interest, totaling $89,682.

On January 23, 2007, Bryan Holzberg tendered a check in the amount of $64,382 representing Aegean's share of the recovery. Aegean deposited the check, but was advised that a stop payment order had been issued. In fact, Bryan Holzberg never obtained a judgment against defendants and never collected any payment from the purported action.

2. Louis Di Lauro

In the summer of 2000, Mr. Di Lauro retained Bryan Holzberg to recover money owed under a contract for the sale of certain merchandise.

Bryan Holzberg provided Mr. Di Lauro a draft complaint and thereafter claimed he commenced an action on Mr. Di Lauro's behalf in United States Federal Court in New York. Bryan Holzberg, however, never filed such action.

Thereafter, Bryan Holzberg provided Mr. Di Lauro false and misleading information about the status of his legal matter, including information include statements from July 2000 to July 2003 that:

(1) Mr. Di Lauro's case was pending in the Federal Court; and,

(2) Mr. Di Lauro's case was delayed for various reasons, resulting in lack of progress.

In or about July 2003, Bryan Holzberg informed Mr. Di Lauro that he had obtained a judgment against defendant. Bryan Holzberg provided Mr. Di Lauro a purported order granting a default judgment, bearing the alleged signature of U.S. Magistrate Judge Ronald L. Ellis under case number 02 CIV 4910. Thereafter, Bryan Holzberg informed Mr. Di Lauro that he was experiencing difficulties collecting on the judgment. In response to inquires by his client, Bryan Holzberg provided Mr. Di Lauro with a portion of an affidavit he prepared for use in a purported matrimonial action pending in Ohio and involving the defendant, in which Bryan Holzberg claimed a stay prevented the collection of Mr. Di Lauro's judgment.

In or about September 22, 2005, Bryan Holzberg provided a check to Mr. Di Lauro in the amount of $156,500 claiming it was a partial payment on the judgment against defendant and informed his client that he could deposit the check after October 8, 2005. The check was deposited but returned for insufficient funds.

In or about August 24, 2006, Bryan Holzberg provided Mr. Di Lauro two undated checks from his attorney IOLA account totaling $43,940 and informed him that they were in anticipation of receipt of funds from the Trustee in the Ohio Bankruptcy of defendant, and that upon his receipt of the funds, he would provide his client with the date of deposit for the checks.

In or about March 2007, Bryan Holzberg provided Mr. Di Lauro a copy of a purported order from the United States Bankruptcy Court for the Northern District of Ohio, modifying distribution in defendant's supposed bankruptcy, dated March 12, 2007, containing the name Melanie L. Cyganowski, U.S. Bankruptcy Judge.

Investigation by the Grievance Committee revealed that there is no record of Mr. Di Lauro's case in the Federal Court and that there is no case divorce case involving the defendant in Ohio. U.S. Bankruptcy Judge M. Cyganowski was a Bankruptcy Judge in New York, not Ohio. Further, the case number affixed to the purported order from the United States Bankruptcy Court in Ohio is actually the case number for a Chapter 13 Voluntary Petition filed in New York, over which Judge Cyganowski presided and in which a different debtor was represented by Bryan Holzberg.

3. Jack Fermaglich

In or about early 2006, Bryan Holzberg was retained by Jack Fermalgich to prosecute an action relating to a proposed housing development on lands adjoining Mr. Fermaglich's residential property. Bryan Holzberg prepared a summons and complaint, and advised his client that he had commenced an action in Supreme Court, Nassau County. At his client's request, Bryan Holzberg provided a copy of the purported filed complaint, bearing Index No. 6440/06. Bryan Holzberg never filed any action on Mr. Fermaglich's behalf.

Thereafter, Bryan Holzberg provided Mr. Fermaglich false and misleading information about the status of his legal matter. Bryan Holzberg provided his client with a purported Notice of Discovery and Inspection dated June 28, 2006, and a Second Notice dated July 27, 2006. He informed his client that his case had been assigned to Justice Winslow, and that, while a preliminary conference had been scheduled, it was delayed.

At an investigative appearance before the Grievance Committee, Bryan Holzberg falsely testified under oath when he denied ever telling his client that:

(1) the action was filed with the court,

(2) the action was assigned to Justice Winslow, and,

(3) a preliminary conference had been scheduled in the case.

Comment:What's strange here is that it doesn't appear that the attorney was stealing settlement money - the really big bucks - most likely he was just pocketing the fees from his clients. It seems that whatever motivated him to steal, also made him act hastily. And one has to wonder why he didn't just do the legal work.

December 15, 2008: Bryan Holzberg pleads guilty to one count of possession of a forged instrument in the second degree, a felony. He is automatically disbarred because of this felony conviction.

August 7, 2009:

Nassau County District Attorney Kathleen Rice announced today that a disbarred Port Washington attorney [Bryan Holzberg] has been arrested and charged with possessing a falsified Nassau Supreme Court document that indicated a settlement had been reached and a judgment ordered on his client's behalf. Rice said that the document utilized the forged signature of a Nassau Supreme Court judge and that not only was the settlement phony, but the client's lawsuit had never even been filed.

Brian Holzberg, 53, of Port Washington has been charged with Criminal Possession of a Forged Instrument in the Second Degree. He faces up to seven years in prison if convicted. Rice said that on or about June 14, 2004, Holzberg was retained by a Great Neck man to help him collect a debt from a business associate. Holzberg presented his client with numerous legal documents proving that he had filed suit in Nassau Supreme Court when, in fact, Holzberg never filed any paperwork.

On or about January 26, 2006, Holzberg presented his client with a document indicating that a settlement had been reached and a judgment rendered on his behalf. He told the client that he would soon be receiving a settlement check for $24,000. The document bore a signature purporting to be that of Nassau Supreme Court Justice Anthony L. Parga. The client grew suspicious, however, when he never received a check and was unable to reach Holzberg by phone. In August 2008, after contacting Parga's office, the client was informed that there was no case on file with that title or index number and that Parga had not signed any order in the case.

Holzberg was disbarred in December 2008 after a similar incident in Suffolk County. Rice said that authorities are still unable to determine the motivation for the crime and that investigators cannot determine whether Holzberg forged the signature himself or was utilizing someone else's forgery.

"Mr. Holzberg violated the trust his client placed in him and he violated the law by trying to cover his tracks," Rice said. "While his motivation is unclear, the breach of attorney-client trust demands the aggressive prosecution of this case. I don't care if he wears a suit and tie to work, this guy abused his client's trust and he tried to scam a judge and regardless of the color of his collar, that's a crime in my book."

October 30, 2009:

Queens District Attorney Richard A. Brown announced today that an attorney who was disbarred following a conviction for possession of a forged instrument in Suffolk County has now been charged with possessing the forged signature of a Queens Supreme Court Justice on a fake court order in an effort to hold on to $35,000 of a client's money being held in an escrow fund.

District Attorney Brown said, "The defendant is accused of using his position of trust as an attorney to break the law. His alleged actions not only dishonor the other men and women of the New York State bar who take great pride in their work but erode public confidence in the integrity of the judicial system."

The District Attorney identified the defendant as Bryan J. Holzberg, 53, of 121 Reid Avenue, in Port Washington, New York. Holzberg is presently awaiting arraignment in Queens Criminal Court on one count of second-degree criminal possession of a forged instrument. He is currently serving a sentence of probation after pleading guilty to the same charge in a separate case in Suffolk County last December. If convicted, he faces up to seven years in prison.

District Attorney Brown said that, according to the criminal charges, the defendant was given $35,000 to hold in an escrow account in connection with a real estate transaction. When the real estate transaction did not go forward the defendant was asked to return the funds to Abraham Gabbay and Nachmy Bronstein in their corporate status as House of Tsui Corporation. After repeated demands for the funds were ignored, according to the complaint, Gabbay met with the defendant at a Brooklyn restaurant on October 1, 2009, and he showed Gabbay a copy of a purported Order To Show Cause signed and stamped by the Honorable Charles J. Markey of the Queens Supreme Court which refused the requested order that would release the money held in escrow. When detectives showed a copy of the purported order to Judge Markey he told them that he did not create or sign the order or authorize anyone else to issue it.

It should be noted that criminal charges are merely an accusation and that a defendant is presumed innocent until proven guilty.

Comment: Looks like this disgraced former attorney and former co-worker of your author graduated to stealing big. (Although I always thought the big money was in stealing settlements from accident cases.) Though it does not appear that he tried to steal or practice law after his suspension from the practice of law and later disbarment, to protect yourself from dealing with attorneys who have been suspended or disbarred, you can check their status on the official website for the New York State Unified Court Systems, http://www.courts.state.ny.us/ under "Attorney Registration."

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn Accident Lawyer)

The New York State No-Fault threshold requires that a person injured in a motor vehicle accident have suffered a "serious injury," as defined by New York State Insurance Law in order to bring a lawsuit in court. I do not have the time or inclination to go into a prolonged analysis of what constitutes a serious injury under the No-Fault law. For that analysis I refer you to my free book:

"Warning! Things That Can Destroy Your Car Accident Case (And the Insurance Companies Already Know These Things)." Click on the link and fill in the form, and you'll instantly get a copy of the book in PDF format

The point of this article is to observe the never ending give and take that is No-Fault serious injury threshold litigation. The insurance companies are always on the lookout for ways to convince a judge that the injured car accident victim doesn't qualify as seriously injured. They try to get the hurt plaintiff's case thrown out on paper - without ever reaching a jury - by way of a "motion."

For a while, insurance carriers were able to defeat accident victims with motions by showing a "gap" in treatment. That means if my client was treating for injuries from an accident then stopped, after a period of time they would be presumed to not have a serious injury. Many judges bought this argument; and many deserving injured plaintiffs had their cases thrown out of court.

So this was defense law firms' "punch." Then plaintiffs' law firms came up with a "counter-punch." To overcome a gap in treatment, the accident victim needed an explanation. And it developed that an acceptable explanation was something like: "I stopped treating because my No-Fault insurance benefits were canceled by the insurance company and I could not pay for treatment," and/or "The treatments only gave me temporary relief from my pain, so instead I did exercises at home that my doctor taught me" - which works best if the plaintiff describes the exercises, and if his or her doctor also gives an affidavit stating that the plaintiff was not being cured anyway, and was just as well off medically if he or she did exercises at home. The doctor should also describes the exercises prescribed. This counter-punch works for accident victims injured in car accidents.

However, the treatment "gap" was yesterday's pitfall. A new "punch" or booby-trap sprung by the defense bar is that of case dismissal based on making a motion containing an affidavit by a radiologist, hired by the defendant's insurance carrier to read MRI films previously taken of the plaintiff's affected body parts, finding "degenerative changes" that pre-exist the accident. The judge cuold find that there is no accident-related injury shown and certainly no "serious injury" related to the automobile accident and throw out the plaintiff's case.

I see two possible counter-punches or work-arounds to this. There are recent appellate cases where an injured plaintff's neurologist reads the MRI film and give an affidavit: (1) finding an accident-related injury, and, (2) giving causation, which means relating the injury to the car accident.

An alternative technique is to get an affdavit from the client's radiologist (who may sometimes have to be dragged kicking and screaming). Never examining or even seeing the plaintiff, a radiologist can't give causation. However, since we need to get a short affirmation from the radiologist (anyway) to make his/her report admissible in opposition to a defense summary judgment motion based on the No-Fault serious injury threshold, I would add a sentence saying that the radiologist has read/reviewed the affirmed report of the defense radiologist [insert name], dated [insert date], and disagrees with the findings set forth therein, and particularly the defense radiologist's findings of degenerative changes. (I keep this language as terse as possible, for radiologists tend to scare easily)

Keep in mind:

a. The injured plaintiff's radiologist must actually be sent the defense radiologist's report(s).

b. The injured plaintiff's attorney will probably have to pay a few dollars (more) for this opinion from the client's radiologist (and for reading the defense radiologist's reports).

c. The plaintiff's other doctor(s) are needed to show causation.

And here's a REMINDER from out of left field: Attach property damage photos to the plaintiff's opposition to a defense (threshold) summary judgment motion, authenticated by plaintiff. Sexy property damage photos may tilt an uncertain judge in favor of the car accident victim.