You are here: / Inadequate Waiver of the Right to Appeal Required Vacation of Guilty Plea,...

Search Results

/ ,

Inadequate Waiver of the Right to Appeal Required Vacation of Guilty Plea, Despite Lack of Preservation of the Error

The Third Department determined defendant’s waiver of his right to appeal was invalid and his guilty plea must therefore be vacated (in the interest of justice), despite the failure to preserve the error:

Defendant argues that his plea was invalid because County Court failed to advise him of the rights that he would be waiving by pleading guilty, including “the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses” … . This argument is unpreserved given defendant’s failure to advance it in his motion to withdraw his plea … . While it is somewhat unclear as to the precise characterization of this type of error … , it is undoubtedly one serious enough to warrant reversal in the interest of justice … . …

… [A] trial court is neither required “to specifically enumerate all the rights to which the defendant was entitled [or] to elicit . . . detailed waivers before accepting [a] guilty plea” …, nor engage in “a uniform mandatory catechism of pleading defendants” … . There must, however, “be ‘an affirmative showing on the record’ that the defendant waived his [or her] constitutional rights” … . County Court made no effort to explain the rights that defendant was giving up by pleading guilty, making nothing more than a passing reference to them when asking if defendant had “any questions.” County Court further failed to establish that “defendant consulted with his attorney about the constitutional consequences of a guilty plea,” instead making a vague inquiry into whether defendant had spoken to defense counsel regarding “the plea bargain” and “the case”… . People v Klinger, 2015 NY Slip Op 04682, 3rd Dept 6-4-15

 

/ ,

Plaintiff Who Had Right of Way Should Have Been Granted Summary Judgment

The Second Department determined summary judgment should have been granted in an intersection collision case.  The plaintiff had the right of way and defendants’ vehicle failed to yield.  No question of fact was raised about plaintiff’s comparative fault:

The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield … . However, a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection, including keeping a proper lookout and to see what can be seen through the proper use of his or her senses … . “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . Bennett v Granata, 2014 NY Slip Op 03968, 2nd Dept 6-4-14

 

/ , , ,

To Succeed In a Legal Malpractice Action Stemming from Representation in a Criminal Matter, the Plaintiff Must Have a Colorable Claim of Actual Innocence—Elements of Legal Malpractice in this Context Explained

The Second Department determined defendant-attorney’s motion for summary judgment dismissing the legal malpractice complaint should have been granted.  Plaintiff, when represented by defendant-attorney, was convicted of sex offenses. The conviction was overturned on “ineffective assistance of counsel” grounds.  Plaintiff was acquitted upon retrial. In the legal malpractice action, the plaintiff was unable to prove the element of causation.  Defendant-attorney demonstrated plaintiff’s conviction was not due solely to defendant-attorney’s conduct, but was based in part on plaintiff’s “guilt,” in that her children provided graphic testimony alleging sexual abuse. To succeed in a legal malpractice action stemming from a criminal matter, the plaintiff must at least have a colorable claim of actual innocence.  In addition, the nonpecuniary damages sought by the plaintiff (psychological injury due to her incarceration) are not recoverable in a legal malpractice action.  The Second Department explained the elements of legal malpractice in this context (stemming from representation in a criminal case):

To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages … . Even where a plaintiff establishes that his or her attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession, the plaintiff must still demonstrate causation … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” … . In the civil context, this Court has held that a plaintiff in a legal malpractice action “need prove only that the defendant-attorney’s negligence was a proximate cause of damages” … . However, in a legal malpractice action such as this one, arising from representation in a criminal matter, the “plaintiff must have at least a colorable claim of actual innocence” …, and the plaintiff ultimately bears the unique burden to plead and prove that his or her “conviction was due to the attorney’s actions alone and not due to some consequence of his [or her] guilt” … . ” To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements'” … . Dawson v Schoenberg, 2015 NY Slip Op 04603, 2nd Dept 6-3-15

 

/

Slippery Dock Was an Open and Obvious Condition—Landowner Had No Duty to Protect Against the Condition

Plaintiff was injured when he stepped on a dock from a boat.  Plaintiff alleged the dock was slippery. The Second Department determined Supreme Court should have granted defendant’s motion for summary judgment because a landowner has no duty to protect against an open and obvious condition:

A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property” … . Here, the defendant met its prima facie burden of establishing its entitlement to judgment as a matter of law … . “[A] landowner has no duty to protect or warn against an open and obvious condition that is inherent or incident to the nature of the property, and that could be reasonably anticipated by those using it” … . A slippery condition on a dock is necessarily incidental to its nature and location near a body of water … . Mossberg v Crow’s Nest Mar. of Oceanside, 2015 NY Slip Op 04618, 2nd Dept 6-3-15

 

/

Abutting Property Owners Not Liable for Falls in Sidewalk Tree Wells (NYC)

The Second Department noted that, pursuant to the New York City Administrative Code, abutting property owners are not responsible for falls within city-owned tree wells (within sidewalks). Defendant’s motion for summary judgment should have been granted:

The [defendant] argued that it could not be held liable under § 7-210 of the Administrative Code of the City of New York (hereinafter the Administrative Code), which imposes tort liability on abutting property owners for the failure to maintain city-owned sidewalks in a reasonably safe condition, because the plaintiff fell in a tree well, which is not considered to be part of a sidewalk for purposes of Administrative Code § 7-210. The Supreme Court denied the motion.

A tree well does not fall within the definition of “sidewalk” as that term is defined by section 7-210 of the Administrative Code and thus, “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … .

Here, the [defendant] established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff fell in a tree well, not any part of the surrounding sidewalk, and that it had no duty to maintain the tree well, as that tree well was owned by the City of New York … . In opposition, the plaintiff failed to raise a triable issue of fact. Newkirk v City of New York, 2015 NY Slip Op 04620, 2nd Dept 6-3-15

 

/ ,

No Allegation Plaintiffs’ “Physical Safety” Was Endangered Re: Cause of Action for Negligent Infliction of Emotional Distress/No Allegation of Sufficiently Extreme and Outrageous Conduct Re: Cause of Action for Intentional Infliction of Emotional Distress—Those Causes of Action Were Therefore Properly Dismissed

The plaintiffs alleged defendants defrauded them in connection with a deed which purported to transfer plaintiffs’ property to a third party and the related mortgages.  In addition to the action to quiet title pursuant to Real Property Actions and Proceedings Law, the plaintiffs alleged causes of action for negligent and intentional infliction of emotional distress (among several others). The Second Department determined those causes of action were properly dismissed and explained the pleading defects, notably (1) the absence of a duty which could give rise to tort liability, (2) the failure to allege plaintiffs’ “physical safety” was endangered (negligent infliction of emotional distress), and (3) the failure to allege sufficiently extreme and outrageous conduct (intentional infliction of emotional distress):

Here, as the [defendants who initially serviced the loan payments made by plaintiffs] correctly assert, the complaint fails to state a cause of action to recover damages for negligent or intentional infliction of emotional distress as against them. The relationship between the plaintiffs and those defendants “does not give rise to a duty which could furnish a basis for tort liability” in negligence … . Further, the plaintiffs did not allege that their “physical safety” was endangered or that they were caused to fear for their physical safety, which is generally an element of a cause of action based on negligent infliction of emotional distress … . Moreover, the conduct complained of is not sufficiently extreme and outrageous to support the cause of action to recover for damages for intentional infliction of emotional distress … . Pirrelli v OCWEN Loan Servicing, LLC, 2015 NY Slip Op 04625, 2nd Dept 6-3-15

 

/

Doctrine of Primary Assumption of Risk Applies to Informal Game of Catch on a Paved Handball Court

The First Department determined the doctrine of primary assumption of risk applied where plaintiff tripped on the raised, cracked, uneven edge of a sidewalk adjacent to the paved handball court where he was playing catch with a friend:

The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This includes risks associated with the construction of the playing surface, including risks involving less than optimal conditions .. . “If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be” … .

The assessment of awareness must take place against a particular plaintiff’s skill and experience … . Here, the 26-year-old plaintiff was familiar with the risks inherent in the sport of football, such as the risk of falling while running to catch a ball. He had been to Jerome Playground South to play football or baseball at least 15 times previously and was generally aware of defects in the park. Although plaintiff alleges that he did not see the particular defect that caused him to trip before he fell, cracks in the concrete were visible to a person walking by and nothing covered or concealed the open and obvious condition. Given these circumstances, the primary assumption of risk doctrine is applicable “because plaintiff was involved in an athletic activity at a designated venue and was aware of the perfectly obvious risk of playing on the cracked court”… . Latimer v City of New York, 2014 NY Slip Op 03954 1st Dept 6-3-14

 

/ ,

Doctor Did Not Have a Duty to Disclose an Email from a Non-Physician Representative of the Implant Manufacturer Which Indicated Plaintiff Might Not Be a Good Candidate for the Implants

The First Department, over a dissent, determined summary judgment had been properly granted to the defendants in a medical malpractice action.  The court found that the doctor was not required to provide the plaintiff with an email from a non-physician representative of the implant manufacturer stating that plaintiff might not be an ideal candidate for the implant because the implants require “good tissue support:”

Plaintiff … failed to rebut defendants’ showing that she was properly informed of the surgical procedure and the alternatives, as well as the reasonably foreseeable risks and benefits, by tendering expert testimony proving the insufficiency of the information … disclosed to her … .

There is no basis in the law for the dissent’s conclusion that [the doctor] had a duty to disclose to plaintiff the email from the manufacturer’s representative in response to her general query. The dissent mistakenly equates that representative’s conclusory email with a product’s written manufacturer warning or a consulting doctor’s opinion. Ramos v Weber, 2014 NY Slip Op 03943, 1st Dept 5-3-14

 

/ ,

New York State Can Issue a License to Practice Law to an Undocumented Immigrant Authorized to Be In the United States by the Deferred Action for Childhood Arrivals Policy of the Federal Government

The Second Department, in an extensive, full-fledged opinion (per curiam), dealing with a question of first impression, determined the State of New York could issue a license to practice law to an undocumented immigrant who was qualified for admission to the bar.  The court explained the issues before it as follows:

We are called upon to determine whether an undocumented immigrant, who is authorized to be present in the United States under the auspices of the Deferred Action for Childhood Arrivals policy of the federal government, and who meets the statutory eligibility requirements and the rules of court governing admission to the practice of law in the State of New York, may satisfy the standard of good character and general fitness necessary for admission. We are further called upon to determine whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses. This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.

We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government. Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53[1]), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York. Accordingly, we answer the first question in the affirmative and the second question in the negative. Matter of Application of Cesar Adrian Vargas for Admission to the Bar of the State of New York., 2015 NY Slip Op 04657, 2nd Dept 6-3-15

 

/ , ,

Plaintiffs Should Have Been Allowed to Amend the Pleadings to Conform to the Proof at Trial—No Prejudice to Defendant

The Second Department determined plaintiffs should have been allowed to amend the pleadings to conform to the proof at trial. The complaint alleged breach of contract and negligence re: the installation of foam insulation. The contract called for the installation to conform to the manufacturer’s specifications.  The negligence cause of action alleged the work was not done in a good and workmanlike manner. Because defendant would not have been prejudiced, Supreme Court should have allowed plaintiffs to amend the breach of contract cause of action to allege the work was not done in a good and workmanlike manner.  Plaintiffs’ motion pursuant to CPLR 4404(b) for judgment in their favor on the breach of contract cause of action should have been granted. The negligence cause of action, which essentially duplicated the breach of contract cause of action, should have been dismissed. With respect the post-trial motion to amend the pleadings, the Second Department wrote:

… [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was for leave to amend the pleadings to conform to the evidence adduced at trial. “Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division” … . Absent prejudice, courts are free, pursuant to CPLR 3025(c), to permit the amendment of pleadings, even after trial … . Leave shall be freely given upon such terms as may be just (see CPLR 3025[b]). “This favorable treatment applies even if the amendment substantially alters the theory of recovery” … .

Here, the proposed amendment to the breach of contract cause of action does not alter the theory of recovery. The complaint alleged that the defendant failed to perform the work in a good and workmanlike manner, albeit in the context of the cause of action alleging negligence. Furthermore, the defendant, who has the burden of establishing prejudice …, failed to assert that it would be prejudiced by permitting the plaintiffs to amend the complaint to conform to the evidence adduced at trial that the work was not performed in a good and workmanlike manner … . Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 2015 NY Slip Op 04615, 2nd Dept 6-3-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy