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SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER.

The Second Department noted that the administrative law judge (ALJ) in this action which resulted in the termination of petitioner’s employment as a corrections officer must be authorized to conduct the disciplinary proceedings by the commissioner of corrections. The petitioner contested his termination on the ground the ALJ was not so authorized. Supreme Court relied upon a letter of authorization which was not in the record. The Second Department held that was error and remitted the matter to allow the respondent to submit an authorization letter:

Civil Service Law § 75, which governs the procedure applicable to the subject disciplinary proceeding, provides that “[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose” (Civil Service Law § 75[2]). In the absence of a written designation, the removing body or hearing officer has no jurisdiction to recommend the discipline of an employee and any disposition flowing from such a proceeding will be void … . This jurisdictional defect is not waived by a petitioner’s failure to object at a disciplinary hearing … .

Here, in denying the petition and dismissing the CPLR article 78 proceeding, the Supreme Court erred in considering and relying upon the 1992 letter as a written designation pursuant to Civil Service Law § 75(2) since that letter was outside the record, and was not relied upon by the respondents, whose papers were rejected by the court … .

Moreover, the Supreme Court also erred in not considering the respondents’ cross motion to dismiss the petition. Pursuant to CPLR 404(a), the respondents were permitted to raise objections in point of law by a motion to dismiss the petition. Given the improper rejection of the respondents’ papers and the particular circumstances of this case, the court should have afforded the respondents an opportunity to submit a designation letter conferring jurisdiction upon the ALJ who conducted the subject disciplinary hearing prior to determining the petition on the merits. Matter of Lindo v Ponte, 2017 NY Slip Op 04282, 2nd Dept 5-31-17

ADMINISTRATIVE LAW (SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/EMPLOYMENT LAW (CIVIL SERVICE LAW, CORRECTIONS OFFICERS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CIVIL PROCEDURE (CIVIL SERVICE LAW, ADMINISTRATIVE LAW JUDGES, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CORRECTIONS OFFICER (DISCIPLINARY PROCEEDINGS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/ADMINISTRATIVE LAW JUDGES (CORRECTIONS OFFICERS, DISCIPLINARY PROCEEDINGS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CIVIL SERVICE LAW (EMPLOYMENT LAW, DISCIPLINARY PROCEEDINGS, CORRECTIONS OFFICERS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)

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SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined the alleged sidewalk defect in this slip and fall case was trivial and not actionable as a matter of law:

Defendant established entitlement to judgment as a matter of law by demonstrating that the defect in the sidewalk that allegedly caused plaintiff to trip and fall was trivial, and that there were no surrounding circumstances that magnified the dangers it posed … . Defendant submitted photographs and measurements, which showed that the height differential between the expansion joint and the sidewalk flags was less than half an inch. The photographs did not depict any jagged edges or any rough, irregular surface, and the expansion joint was not difficult to see or pass over safely on foot, given plaintiff’s testimony that the accident occurred on a sunny day and she was the only person traversing the pathway. Plaintiff’s testimony that the defect was two-to-four inches high was speculative, since she did not measure the defect … . McCullough v Riverbay Corp., 2017 NY Slip Op 04231, 1st Dept 5-30-17

NEGLIGENCE (SIDEWALKS, SLIP AND FALL, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)/SLIP AND FALL (SIDEWALKS, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)/SIDEWALKS (SLIP AND FALL, TRIVIAL DEFECT, SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SLIP AND FALL ACTION SHOULD HAVE BEEN DISMISSED)

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PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE, COMPLAINT PROPERLY DISMISSED.

The First Department determined plaintiff’s action against the city in this slip and fall case was properly dismissed. Plaintiff did not allege the city had prior written notice of the sign post stump in the sidewalk, and the 15-day grace period for the notice which the city did receive had not expired at the time of plaintiff’s fall:

Plaintiff alleges that, as she was exiting a bus, she tripped and fell over the stump of a pole sign protruding about three to four inches from the sidewalk near the bus stop. The City met its prima facie burden by showing that plaintiff did not plead that the City received prior written notice of the sidewalk defect as required by Administrative Code of City of NY § 7-201(c)(2) … .

The City also submitted evidence showing the absence of prior written notice; that the sign was in good condition two years before the accident; that the City received a citizen complaint through 311 less than 15 days before plaintiff’s accident; and that it repaired the condition a few days after her accident. The complaint received before the accident, even if it were in writing, could not constitute prior written notice for purposes of the statute, since it was received within the 15-day grace period provided by the statute for the City to make repairs after receiving notice … .

… Plaintiff failed to demonstrate either that she pled prior written notice or that the 311 complaint received by the City within the 15-day grace period constitutes such notice. Plaintiff’s contention that the City affirmatively created the condition by removing the sign from the sleeve is unsupported by any evidence. Brown v City of New York, 2017 NY Slip Op 04221, 1st Dept 5-30-17

MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/NEGLIGENCE (MUNICIPAL LAW, SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/SIDEWALKS (MUNICIPAL LAW, SLIP AND FALL, WRITTEN NOTICE OF DEFECT, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)/WRITTEN NOTICE REQUIREMENT (MUNICIPAL LAW, SLIP AND FALL, PLAINTIFF DID NOT ALLEGE THE CITY HAD WRITTEN NOTICE OF THE SIGN POST STUMP OVER WHICH SHE TRIPPED AND FELL, THE FALL OCCURRED WITHIN THE 15-DAY GRACE PERIOD FOR THE NOTICE THE CITY DID RECEIVE)

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TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED.

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action. The ladder plaintiff was using to take measurements in preparation for work broke. Taking measurements is an activity covered by the Labor Law:

The motion court correctly determined that plaintiffs were entitled to partial summary judgment against defendant owners on the issue of section 240(1) liability because the ladder that plaintiff … was using to take measurements in preparation for work to be performed on the roof of defendant owners’ building broke, causing him to fall to the ground … . Contrary to defendant owners’ contention, the work that plaintiff was engaged in was a protected activity within the meaning of Labor Law § 240(1) … . Ortiz-Cruz v Evers, 2017 NY Slip Op 04228, 1st Dept 5-30-17

LABOR LAW-CONSTRUCTION LAW (TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED)/MEASURING (LABOR LAW-CONSTRUCTION LAW, (TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED)

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THE ABSENCE FROM THE JURY CHARGE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE (ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT) REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE.

The First Department reversed defendant’s attempted robbery conviction, despite the lack of preservation of the error, because the jury charge did not make it clear that defendant must possess a dangerous instrument. The store clerk testified defendant had a knife and threatened him with it. However the exchange where the knife was allegedly brandished was not captured on the imperfect video and no knife was subsequently found by the police:

Defendant does not dispute that he failed to preserve his objection to the jury charge on attempted robbery. Accordingly, he asks us to exercise our interests-of-justice jurisdiction to reach the issue. There is precedent for exercising such jurisdiction in cases where a jury instruction was “manifestly incorrect” … . Defendant urges us to follow that precedent, arguing that the jury charge misstated the elements of the crime of first degree robbery. Defendant is correct in this regard. On its face, Penal Law § 160.15(3), under which defendant was charged, would appear to require conviction even if a person threatened to use a dangerous instrument that he did not in fact possess. However, the requirement for actual possession is an essential element that has been judicially engrafted onto the statute … . The People argue that the court technically issued a correct charge, because the CJI pattern jury instruction for “Attempt to Commit a Crime” provides for the court to merely “read [the] statutory definition of [the completed] crime and any defined terms as set forth in CJI for that crime” (CJI 2d [NY] Penal Law § 110.00). Because the statutory definition of robbery in the first degree does not, as stated above, require actual possession, they argue, the court’s instruction cannot be criticized. We reject this reasoning, because it reads out of the CJI instruction the words “as set forth in CJI for that crime” (id.). The current version of the CJI charge for Penal Law § 160.15(3) expressly refers to the possession requirement by stating, in pertinent part:

“In order for you to find the defendant guilty of this crime, the People are required to prove, from all the evidence in the case beyond a reasonable doubt, both of the following two elements: 1. That on or about (date), in the county of (county), the defendant, (defendant’s name), forcibly stole property from (specify); and 2. That in the course of the commission of the crime [or of immediate flight therefrom], the defendant [or another participant in the crime] possessed a dangerous instrument and used or threatened the immediate use of that dangerous instrument” (CJI 2d [NY] Penal Law § 160.15 [3]) (emphasis added). People v Saigo, 2017 NY Slip Op 04237, 1st Dept 5-30-17

 

CRIMINAL LAW (THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)/APPEALS (CRIMINAL LAW, ERRONEOUS JURY CHARGE, INTERESTS OF JUSTICE REVERSAL, THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)/JURY INSTRUCTIONS (CRIMINAL LAW, (THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)/ROBBERY (THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)

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WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED.

The First Department noted that the People’s motion to set aside defendant’s sentence based upon an illegal sentence was properly brought and granted. Where the criteria are met, sentencing a defendant as a predicate felon is mandatory. Defendant should have been so sentenced but was not:

Where a defendant is in fact a predicate offender, sentencing the defendant as a nonpredicate results in an illegal sentence. The provisions of CPL 400.15, governing second violent felony offender adjudications, are mandatory, and neither the People nor a court may ignore or waive a defendant’s predicate status … . The claim that defendant describes as a collateral estoppel argument is without merit. The defective resentencing of defendant as a nonpredicate had no collateral estoppel effect with regard to the People’s timely CPL 440.40 motion, which was a permissible alternative to an appeal. “When the People seek to challenge a sentence as illegal, they may appeal . . ., or, within one year of the judgment, they may make a motion to set aside the sentence” … . The very purpose of a (defendant’s) CPL 440.20 motion or a (People’s) 440.40 motion is to correct a substantively illegal sentence without the necessity of an appeal; obviously, the court deciding such a motion is not bound by a sentencing court’s express or implied finding that the challenged sentence was legal. People v Heisler, 2017 NY Slip Op 04220, 1st Dept 5-30-17

CRIMINAL LAW (SENTENCING, WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)/SENTENCING (PREDICATE FELON, WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)/PREDICATE FELON (SENTENCING, WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)/SENTENCE, MOTION TO SET ASIDE WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED)

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IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE.

The First Department, over an extensive dissent, determined detaining defendant while the police, after taking the defendant’s ID, checked to see if defendant’s girlfriend lived in an apartment, was not a seizure. Defendant had been seen (by the police) making quick trips in and out of an apartment complex. To determine if defendant was trespassing, the police went to the apartment where defendant said his girlfriend lived. The occupant of the apartment was shown defendant’s ID and denied knowing him. The police then had probable cause to arrest defendant for criminal trespass:

This Court has repeatedly held that in a trespass situation, a police officer may conduct a brief investigation to ascertain whether a defendant’s explanation was credible, and this does not rise to a level three forcible detention or seizure … .

In determining the lawfulness of police encounters, New York has long followed the four-level test illustrated in People v De Bour (40 NY2d 210, 223 [1976]). To determine a seizure under De Bour, “[t]he test is whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom” …. The dissent cannot point to any New York State case applying the De Bour standard to support the broad proposition that a seizure occurs whenever an officer retains a person’s identification. Although the dissent cites to several federal and out-of-state cases, those cases present different factual scenarios compared to the circumstances here, and are not controlling. People v Hill,  2017 NY Slip Op 04236, 1st Dept 5-30-17

CRIMINAL LAW (IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)/TRESPASS (CRIMINAL LAW, STREET STOP, (IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)/STREET STOPS (CRIMINAL LAW, SEIZURE, IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)/SEIZURE (CRIMINAL LAW, (IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)

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PLAINTIFF, INTER ALIA, ALLEGED THE FLORIDA DEFENDANT IN THIS FRAUD-BASED ACTION DEPOSITED RELEVANT FUNDS IN A NEW YORK LAW FIRM ESCROW ACCOUNT AND CONVERTED THOSE FUNDS, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the motion to dismiss the fraud-based complaint for lack of personal jurisdiction over defendant, whose domicile was Florida, should not have been granted. Relevant funds were deposited in the escrow account for defendant’s New York law firm and those funds were alleged to have been converted in New York:

… [T]he plaintiffs made a prima facie showing that the defendant, a Florida domiciliary, transacted business in New York and that the plaintiffs’ claims arose from those transactions so as to establish that jurisdiction was proper under CPLR 302(a)(1)… . Accepting the plaintiffs’ allegations as true and construing the allegations in the light most favorable to the plaintiffs, they demonstrated prima facie that the defendant purposefully availed himself “of the privilege of conducting activities” in New York, “thus invoking the benefits and protections of its laws” … . Contrary to the defendant’s contention, his alleged contacts with New York amounted to more than mere communications … . The defendant allegedly utilized Sommer & Schneider’s New York escrow account to further the alleged fraudulent investment scheme by directing the plaintiffs to deposit the funds for investment deals into the escrow account, by acting as the agent for the purported investment deals, and by using and allowing Joel to use the investment money deposited in the escrow account for personal expenses … . As to the second prong of the CPLR 302(a)(1) analysis, the plaintiffs’ allegations demonstrated prima facie that the defendant’s activities in New York had an articulable nexus or substantial relationship to the plaintiffs’ claims … . The plaintiffs’ claims against the defendant of fraud, conversion, breach of fiduciary duty, and unjust enrichment turned entirely on the defendant’s use of the New York escrow account to facilitate his fraudulent investment scheme … .

The plaintiffs also made a prima facie showing that the defendant committed tortious acts within New York, as the defendant is alleged to have converted funds held in New York … . Nick v Schneider, 2017 NY Slip Op 04285, 2nd Dept 5-30-17

 

CIVIL PROCEDURE (LONG ARM JURISDICTION, PLAINTIFF, INTER ALIA, ALLEGED THE FLORIDA DEFENDANT IN THIS FRAUD-BASED ACTION DEPOSITED RELEVANT FUNDS IN A NEW YORK LAW FIRM ESCROW ACCOUNT AND CONVERTED THOSE FUNDS, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD NOT HAVE BEEN GRANTED)/JURISDICTION (CIVIL PROCEDURE, LONG ARM JURISDICTION, PLAINTIFF, INTER ALIA, ALLEGED THE FLORIDA DEFENDANT IN THIS FRAUD-BASED ACTION DEPOSITED RELEVANT FUNDS IN A NEW YORK LAW FIRM ESCROW ACCOUNT AND CONVERTED THOSE FUNDS, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD NOT HAVE BEEN GRANTED)/LONG ARM JURISDICTION (FRAUD,  PLAINTIFF, INTER ALIA, ALLEGED THE FLORIDA DEFENDANT IN THIS FRAUD-BASED ACTION DEPOSITED RELEVANT FUNDS IN A NEW YORK LAW FIRM ESCROW ACCOUNT AND CONVERTED THOSE FUNDS, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD NOT HAVE BEEN GRANTED)/FRAUD (CIVIL PROCEDURE, LONG ARM JURISDICTION,  PLAINTIFF, INTER ALIA, ALLEGED THE FLORIDA DEFENDANT IN THIS FRAUD-BASED ACTION DEPOSITED RELEVANT FUNDS IN A NEW YORK LAW FIRM ESCROW ACCOUNT AND CONVERTED THOSE FUNDS, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD NOT HAVE BEEN GRANTED)/CONVERSION (CIVIL PROCEDURE, LONG ARM JURISDICTION, PLAINTIFF, INTER ALIA, ALLEGED THE FLORIDA DEFENDANT IN THIS FRAUD-BASED ACTION DEPOSITED RELEVANT FUNDS IN A NEW YORK LAW FIRM ESCROW ACCOUNT AND CONVERTED THOSE FUNDS, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD NOT HAVE BEEN GRANTED)/INTENTIONAL TORTS (CONVERSION, CIVIL PROCEDURE, LONG ARM JURISDICTION, PLAINTIFF, INTER ALIA, ALLEGED THE FLORIDA DEFENDANT IN THIS FRAUD-BASED ACTION DEPOSITED RELEVANT FUNDS IN A NEW YORK LAW FIRM ESCROW ACCOUNT AND CONVERTED THOSE FUNDS, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD NOT HAVE BEEN GRANTED)

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PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS.

The First Department, in a full-fledged opinion by Justice Tom, determined defendant law firm was entitled to sanctions for the frivolous conduct of plaintiff’s counsel.  Plaintiff’s counsel had repeatedly, including on appeal, made the false allegation that defendant law firm had withdrawn two causes of action which would have been successful. The two causes of action had, in fact, been timely brought by defendant law firm, but were subsequently withdrawn by successor counsel:

… [D]espite it having been apparent from the record that successor counsel was the one who withdrew the conversion and breach of contract claims in the federal action and not defendants, and despite being alerted to this fact by the record of this case and Supreme Court on multiple occasions, counsel persists in repeating a materially false claim to this Court.

There can be no good faith basis for the repetition of this materially false claim on appeal, and we find that counsel’s behavior would satisfy any of the criteria necessary to deem conduct frivolous. In fact, the only fair conclusion is that the prosecution of this appeal and knowing pursuit of a materially false and meritless claim was meant to delay or prolong the litigation or to harass respondents.

“Among the factors we are directed to consider is whether the conduct was continued when it became apparent, or should have been apparent, that the conduct was frivolous, or when such was brought to the attention of the parties or to counsel (22 NYCRR 130-1.1 [c]), circumstances that are replete in this record as noted above”… .

We also consider that sanctions serve to deter 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 tactics.

Here, counsel was ethically obligated to withdraw any baseless and false claims, if not upon his own review of the record, certainly by the time Supreme Court advised him of this fact. Instead, counsel continued to repeat a knowingly false claim in what could only be described as a purposeful attempt to mislead this Court, and pursued claims which were completely without merit in law or fact.

The appropriate remedy for maintaining a frivolous appeal is the award of sanctions in the amount of the reasonable expenses and costs including attorneys’ fees incurred in defending the appeal … . Boye v Rubin & Bailin, LLP, 2017 NY Slip Op 04239, 1st Dept 5-30-17

 

ATTORNEYS (ETHICS, SANCTIONS, FRIVOLOUS CONDUCT, PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/SANCTIONS (ATTORNEYS,  FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/ETHICAL VIOLATIONS (ATTORNEYS, FRIVOLOUS CONDUCT, PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/FRIVOLOUS CONDUCT (ATTORNEYS,  FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)/APPEALS (FRIVOLOUS, FRIVOLOUS CONDUCT PLAINTIFF’S COUNSEL REPEATEDLY MADE A DEMONSTRABLY FALSE ALLEGATION AGAINST DEFENDANT LAW FIRM THROUGHOUT THE PROCEEDINGS IN THIS LEGAL MALPRACTICE ACTION, INCLUDING ON APPEAL, WARRANTING SANCTIONS)

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DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE.

The First Department determined defendant was entitled to a hearing on her motion to set aside her conviction based upon ineffective assistance of counsel. Defendant alleged she was told by her attorney (erroneously) that a guilty plea would not result in deportation:

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Defendant said in an affidavit that she informed her plea counsel that she was not a U.S. citizen but was a legal permanent resident and was concerned about maintaining her immigration status and not being deported. Counsel advised her that, if she pleaded guilty to attempted second-degree conspiracy, she would receive five years of probation, with no jail time, and assured her that, by taking the plea and receiving probation, she would not have to fear any deportation proceedings. Defendant, age 26 at the time, had been in jail since her arrest, and wanted to be released as soon as possible, so that she could rejoin her two young children.

Accordingly, defendant pleaded guilty, was sentenced as indicated, and successfully completed her probation.

However, in 2012, defendant was referred to U.S. Immigration and Customs Enforcement (ICE), and on June 5, 2012, ICE issued her a Notice to Appear. Defendant said that she learned that conspiracy is considered an “aggravated felony” under the immigration law, which leaves her exposed to deportation proceedings, except under limited and difficult-to-meet exceptions under the Convention Against Torture. …

Defendant said that, if she had known that her guilty plea would subject her to a risk of deportation, she “never would have entered a guilty plea,” but instead “would have contested the matter, tried to negotiate a better plea or taken the case to trial.” She said that she believed that she “would have had a good defense as [she]was not involved in any drug activity, did not know that [her] stepfather was involved in drugs and never saw any drugs … .”

Defendant submitted an affidavit by her plea counsel, who said that she no longer possessed a copy of defendant’s file, and the plea transcript was not available. Nonetheless, counsel said she recalled speaking to defendant a few times, with her secretary acting as interpreter. Counsel recalled that defendant was a legal resident and not a U.S. citizen, but “[did] not recall any advice [she] may have given to [defendant] concerning the plea she eventually entered and the ramifications of that plea upon her status in the United States.”

Counsel explained that her difficulty remembering was due not only to the passage of 15 years, but also to the fact that, at the time of the plea, she was going through “personal difficulties,” including “alcoholism and addiction.” In May 2000, counsel was indicted in Supreme Court, Ulster County, for first-degree promoting prison contraband, seventh-degree criminal possession of a controlled substance, and second-degree harassment.

Under these circumstances, a hearing should be held on whether counsel’s performance rose to the level of ineffective assistance of counsel… . People v Sanchez, 2017 NY Slip Op 04200, 1st Dept 5-26-17

 

CRIMINAL LAW (SET ASIDE THE CONVICTION, MOTION TO, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/SET ASIDE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO SET ASIDE HER CONVICTION, ERRONEOUS ADVICE ABOUT DEPORTATION ALLEGED TO CONSTITUTE INEFFECTIVE ASSISTANCE)

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