Lawyer's Claim of Firing for Refusal to Back Forgery Is Left to Jury

Lawyer's Claim of Firing for Refusal to Back Forgery Is Left to Jury
The New York Law Journal by Brendan Pierson  -  January 23, 2012

A lawsuit by a former Napoli Bern partner who claims he was fired for refusing to sign an affirmation that a forged signature was genuine may go forward, a state judge has ruled. In a Jan. 19 ruling in Connolly v. Napoli Kaiser Bern, 105224/05, Manhattan Supreme Court Justice Joan A. Madden denied a motion by the firm for summary judgment dismissing the suit, which was filed by Gerard A. Connolly. When Mr. Connolly worked at the firm, it was called Napoli Kaiser Bern. It is now called Napoli Bern Ripka Shkolnik.  The suit centers on a personal injury case, Vasquez v. Barbieri, 13010/97, in Bronx Supreme Court. Mr. Connolly served as trial counsel for the plaintiff, Anthony Vasquez, in March and April 2001. According to Justice Madden's decision, Mr. Connolly began the case believing that Mr. Vasquez's wife, Rosa, had a derivative claim as a result of her husband's injury. However, he learned that the couple had separated before the injury and concluded that Ms. Vasquez had no claim.  In mid-April 2001, the Vasquez case settled for $850,000, according to the decision. However, the defendant's insurer would not pay the settlement without signatures from both Mr. and Ms. Vasquez.

It is undisputed that Mr. Vasquez forged Ms. Vasquez's signature on the settlement documents. Mr. Vasquez testified in Mr. Connolly's suit that he did this at the suggestion of Gerald Kaiser, then a senior partner at the firm. Mr. Kaiser, now a director at Madison National Bancorp Inc. on Long Island, denies this and claims he did not learn the signature was forged until months later.  In July 2001, the Napoli firm received a letter from an attorney representing Ms. Vasquez saying she had no knowledge of the settlement. In winter 2001, Ms. Vasquez moved to vacate the settlement. In order to oppose that motion, Mr. Kaiser asked Mr. Connolly to sign an affirmation that Ms. Vasquez had signed the settlement documents. Mr. Connolly refused on the grounds that he did not believe she had signed the documents and that, in any case, he had no personal knowledge about whether or not she had.  On March 19, 2002, he signed a revised affirmation about the case, omitting that Ms. Vasquez had signed the documents. On April 11, 2002, the return date of Ms. Vasquez's motion, Ms. Vasquez reached a settlement with Mr. Vasquez and the Napoli firm in court, under which Mr. Vasquez agreed to pay her $12,000 and the firm agreed to pay her $50,000. On that same day, Napoli senior partner Marc J. Bern told Mr. Connolly that his employment was being terminated.  Napoli senior partner Paul J. Napoli testified during Mr. Connolly's lawsuit that he fired Mr. Connolly because of his "sloppiness with court dates" and because he had lost five cases. He said that he had reached the decision to fire Mr. Connolly in September 2001, and that Mr. Connolly's handling of the Vasquez case was only the "culmination of his poor performance," precipitating his immediate termination.  But Justice Madden held that Mr. Napoli's argument was one for a jury. "When viewing this evidence in the light most favorable to plaintiff…a reasonable fact finder could conclude that plaintiff was terminated for his refusal to sign this false affirmation in violation of [the Lawyer's Code of Professional Responsibility], rather than, as defendants allege, his poor performance as a trial attorney, and his alleged mishandling of the Vasquez action," she wrote.  The judge noted that, in the two months before he was fired, Mr. Connolly had won two verdicts. In February 2002, he won a $75,000 award for an inmate who had been assaulted at Rikers Island. That March, he won a $203,000 award for a plaintiff who was injured after stepping into an open basement trap door.  Mr. Connolly also obtained settlements for Napoli clients amounting to about $300,000 in winter 2001-02, according to the decision. Justice Madden also noted that Mr. Kaiser had testified that Mr. Connolly "did most aspects of his job well."  "In addition, the timing of his termination suggests that plaintiff was fired not due to his alleged mishandling of the Vasquez action, but as a result of his refusal in March 2002, to falsely attest that Ms. Vasquez's signatures were genuine," she wrote.  "If, in fact, NKB intended to fire plaintiff due to his mishandling of the case in connection with the signing of the release, it likely would have done soon after Ms. Vasquez's application was filed in February 2002," she said. "However, plaintiff was not terminated until the April 1, 2002 return date which was also after plaintiff refused to sign the false affirmation."  "I think the court got it absolutely correct," said Andrew M. Moskowitz of Pashman Stein, counsel to Mr. Connolly. "There was ample evidence from which a reasonable jury could find that Mr. Connolly was terminated for his refusal to file a false affirmation."  "We disagree with the decision and expect to take an appeal," said Christopher B. Hitchcock of Hitchcock & Cummings, counsel to Napoli Bern.  Mr. Bern referred a request for comment to his outside counsel, who could not immediately be reached.  Brendan Pierson can be contacted at bpierson@alm.com.