Matter of Samuel
New York Surrogate's Court, Kings County · N.Y. Sur. Ct. · New York bar guidance
Conduct
Here an objectant's attorney filed a late reply in which five of six cited cases were erroneous or nonexistent, and did not acknowledge it when opposing counsel raised possible AI fabrication.
Consequence
The court found the conduct frivolous under 22 NYCRR 130-1.1, struck the reply as a penalty, and ordered counsel to appear on whether economic sanctions were warranted.
Lesson
Here the court said the problem was not necessarily AI use itself but filing citations "without proper examination and scrutiny" after certifying the papers were not frivolous.
Verified September 30, 2026
- Citation
- Matter of Samuel, 82 Misc 3d 616, 2024 NY Slip Op 24014 (Sur Ct, Kings County, Jan. 11, 2024) (Graham, S.)
- Decided
- January 11, 2024
Summary
In a contested probate proceeding over the October 30, 2014 will of Phylliscita Ismay Samuel, objectant Leopold J. Osborne moved for summary judgment to deny probate, arguing that the decedent lacked capacity because she had been placed under a Mental Hygiene Law article 81 guardianship and that the will was procured by undue influence. After more than three years and a final opportunity to reply, Osborne's attorney filed a reply affirmation on October 11, 2023, the day of a scheduled conference. A week later, the proponent's attorney wrote to the court raising "the concern that the October 11, 2023 reply papers contained fake case law resulting from artificial intelligence hallucinations." Surrogate Bernard J. Graham found that "[e]ven without definitive proof that AI was used to prepare the reply, or an admission by Osborne's counsel, or in fact any acknowledgment by him of the allegations raised by Samuel's attorney whatsoever, it is evident that five of the six cases cited in his reply are either erroneous or nonexistent." A simple Lexis search, the court wrote, "shows that the cases and citations contained within the response are incorrect or fake and nonexistent." The opinion lists Lorin O. Lewis of the Law Office of Lorin O. Lewis, P.C. as counsel for Osborne.
- AI tool:
- Unidentified (the court addressed an allegation that counsel relied on "a website which contained information created by generative artificial intelligence"; it found five of six cited cases erroneous or nonexistent "[e]ven without definitive proof that AI was used," and names no tool)
- Sanction amount:
- Reply affirmation struck from the record; counsel directed to appear on January 30, 2024 on whether economic sanctions under 22 NYCRR 130-1.1 are warranted (outcome of that appearance not located)
What sanction did the court impose?
The court found counsel's conduct frivolous under 22 NYCRR 130-1.1(c) because the reply "asserts material factual statements regarding the case law and court holdings that are false," noting that counsel had over three years to investigate and a final opportunity to reply. It determined that "the penalty for committing this fraud upon the court should include striking the pleading from the record and the scheduling of an appearance before the court to address whether of the imposition of economic sanctions is warranted." The decretal paragraphs struck the October 11, 2023 attorney affirmation and directed Osborne's counsel to appear on January 30, 2024 "for further proceedings related to the improper submission that relies on what appears to be AI generated research and citations." On the merits, the court denied summary judgment in its entirety and sent the case to trial, finding triable issues on testamentary capacity and undue influence. No later decision on economic sanctions was located in the Law Reporting Bureau's slip opinion archive or elsewhere, so whether any monetary sanction followed is unknown.
Why does Matter of Samuel matter for law firms using AI?
The court described the issue as “one of first impression for this court,” and it framed the problem in terms of verification rather than technology. Surrogate Graham wrote that “it is not necessarily the use of AI in and of itself that causes such offense and concern, but rather the attorney’s failure to review the sources produced by AI without proper examination and scrutiny.” The court did not find as a fact that AI was used. It proceeded “[e]ven without definitive proof that AI was used,” relying on its own finding that five of the six cases cited in the reply were erroneous or nonexistent, and noted the absence of any acknowledgment by counsel after the proponent’s attorney raised the issue.
The frivolous-conduct analysis tracked the factors in 22 NYCRR 130-1.1(c). Counsel had certified that the papers were not frivolous; the reply asserted false statements about case law and holdings; counsel had over three years since the original motion papers and an express final opportunity to reply; and a basic check on Lexis or Westlaw would have exposed the errors. The court quoted Mata v. Avianca on the harms that fake opinions cause and compared the remedy it chose to the one in Whaley v. Experian (S.D. Ohio 2023).
The consequence came in two stages. The court struck the reply affirmation as “the penalty for committing this fraud upon the court” and set an appearance for January 30, 2024 on whether economic sanctions were warranted, noting that it “would be well within its discretion to sanction Osborne’s counsel.” What happened at that appearance is not reported. On the merits, the court denied summary judgment on capacity and undue influence and sent the probate contest to trial. Firms documenting compliance may wish to consider that here the court tied the frivolousness finding to counsel’s own certification, and that the stricken reply was the client’s final opportunity to answer the opposition to his own summary judgment motion.
Implications for your firm
Operational steps a firm reading this case may wish to consider documenting. Strategic and rule-application calls belong to your firm's attorneys.
- Verify every citation before filing, even on a deadline. Here the court said a Lexis search "takes mere seconds" and would have revealed the defective cases.
- Review the certification that accompanies a filing. Here the court noted counsel's affirmation, under penalty of perjury, that the contentions were not frivolous, and then found the conduct frivolous under 22 NYCRR 130-1.1.
- Consider responding promptly when opposing counsel flags citations. Here the court noted the absence of "any acknowledgment" by counsel of the allegations raised by the proponent's attorney.
- Document the sources used for legal research. Here the allegation was that counsel relied on a website containing content created by generative AI.
Sources
Primary sources
- The outcome of the January 30, 2024 appearance on economic sanctions was not located; no later reported decision was found.
- AI use was alleged by opposing counsel and treated by the court as what "appears to be AI generated research and citations"; the opinion records no admission by Osborne's counsel and no identified tool.