Dean McGee is a civil rights attorney with Pacific Legal Foundation and a guest contributor to Empire Center for Public Policy. Mr. McGee formerly represented Ms. Shock as a litigator with McCabe Coleman Ventosa & Patterson PLLC in Poughkeepsie, NY.
Pacific Legal Foundation
We like to associate the law with justice—protecting the innocent and punishing the wrongdoers. But sometimes our laws punish the innocent and protect the wrongdoers instead.
Dutchess County mom Vika Shock learned this the hard way.
In November 2020, a process server handed her an envelope of legal papers that left her baffled: she was being sued for causing a car accident in Queens.
But Vika wasn’t in an accident. She didn’t own the car, didn’t know the driver, and didn’t know the victim.
Vika’s name appeared on the police report as the owner of the car. Maybe it was a typo when the officer entered the vehicle information. Maybe it was identity fraud by the driver. Whatever it was, she had nothing to do with it.
Vika presumed the mistake could be cleared up quickly. After her insurance carrier refused to help, Vika hired her own lawyers, who assured her that any reasonable plaintiff’s attorney would drop the case once the error was explained. But what followed was a five-year nightmare, compounded by a New York law that shields personal injury lawyers from liability when they bring frivolous claims.
When the plaintiff’s lawyer was provided with certified records showing a different owner of the vehicle, he claimed that the registered owner was fictitious and demanded records related to the license plate. When he was provided with certified records establishing that Vika had no association with that license plate, he demanded insurance records. When he was provided with records from multiple insurers confirming that Vika had no relationship to the vehicle, he became belligerent—accusing her lawyers of malpractice and refusing to release her from the case.
The case dragged on for nearly five years until Queens County Supreme Court Justice Denise N. Johnson granted summary judgment in Vika’s favor and excoriated the plaintiff’s attorney for his refusal to meaningfully investigate his own case. She also granted Vika’s motion for sanctions—ordering the plaintiff’s lawyer to pay Vika’s attorneys’ fees for bringing a frivolous case.
It was a win for Vika. But it was still not justice. A 1985 New York law—enshrined in New York Civil Practice and Rules (CPLR) § 8303-a—establishes that when personal injury lawyers bring frivolous claims, a judge’s award of attorneys’ fees shall “not exceed[] ten thousand dollars.” In practice, this means if you are wrongly accused of injuring someone, and the lawyer suing you keeps pressing a frivolous case, a judge cannot award you more than $10,000 in attorneys’ fees, regardless of how much you spent defending yourself.
In Vika’s case, $10,000 did not come close to covering her nearly $30,000 in attorneys’ fees, much less the emotional pain and stress she endured. These days, it rarely would. A Greene County couple recently shelled out nearly $70,000 to defend themselves against a frivolous lawsuit, only to have an appellate court slash their award to comply with the $10,000 statutory limit. And in 2019, two Suffolk County men—victims of a claim the court found was brought “solely to harass the[m]”—similarly had their $65,000 fee award axed because of CPLR 8303-a.
There is nothing in the legislative history of CPLR § 8303-a to justify this liability shield. On the contrary, according to Professor Vincent Alexander—the leading scholar of New York legal procedure—“CPLR 8303-a was part of a legislative package of several insurance and tort reform measures” aimed predominantly at “curbing escalating malpractice insurance premiums and the resulting high cost of health care.” But the liability cap does the opposite: inviting unscrupulous lawyers to press frivolous claims against innocent New Yorkers in search of an unearned settlement, knowing that their own liability is limited.
New York can fix this. The Legislature should remove the fee cap by amending CPLR § 8303-a(a) and allowing victims of any frivolous litigation to be awarded their full attorneys’ fees.
They can call it Vika’s Law.
Dean McGee is a civil rights attorney with Pacific Legal Foundation and a guest contributor to Empire Center for Public Policy. Mr. McGee formerly represented Ms. Shock as a litigator with McCabe Coleman Ventosa & Patterson PLLC in Poughkeepsie, NY.