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In the Absence of a Showing of Possible Fraud, Income Tax Returns Not Discoverable

In an action alleging a breach of an insurance policy, defendant sought discovery of plaintiff’s income tax returns.  In affirming Supreme Court’s refusal to compel production of the returns, the Second Department explained:

Tax returns generally are not discoverable in the absence of a strong showing that the information is indispensable to a claim or defense and cannot be obtained from other sources …. Here, the defendants failed to make such a showing. Contrary to their contention, the defendants did not make a sufficiently strong showing to warrant disclosure of the plaintiff’s tax returns, such as indicia of fraud … . Katz v Castlepoint Ins Co, 2014 NY Slip Op 07128, 2nd Dept 10-22-14

 

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Unexcused Failure to Comply with Discovery Orders Warranted Striking of the Pleadings

The Second Department determined plaintiff’s failure to facilitate an independent medical examination was willful and contumacious warranting the striking of the pleadings:

“The determination whether to strike a pleading for failure to comply with [*2]court-ordered disclosure lies within the sound discretion of the trial court” … . “However, the drastic remedy of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious. Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time” … . Specifically, contrary to the plaintiff’s contention, dismissal of the complaint is warranted where a party repeatedly fails to appear at scheduled IMEs without adequate excuse …. It is undisputed that the plaintiff not only missed the scheduled IMEs without any excuse, but also missed the rescheduled IMEs without offering any reasonable excuse. In addition, the plaintiff failed to provide documents reflecting her prior accidents, despite being obligated to do so pursuant to a so-ordered stipulation. Mangione v Jacobs, 2014 NY Slip Op 07133, 2nd Dept 10-22-14

 

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After a Mistrial in a Criminal Matter, a Prohibition Action Seeking to Bar Retrial on Double Jeopardy Grounds Must Be Brought Within Four Months of a Definitive Demonstration of the People’s Intent to Re-Prosecute

The Court of Appeals, over a concurring opinion which disagreed with the majority's grounds, determined that the four-month statute of limitations was not tolled under a “continuing harm” theory and the prohibition action was time-barred.  The trial court had declared a mistrial because, during deliberations, one of the 12 jurors was removed for misconduct.  It was clear shortly after the mistrial that the prosecution was preparing for a second trial. Two years after the mistrial was declared, the defendant brought a prohibition action seeking to prohibit the second trial on Double Jeopardy grounds:

A four-month limitations period applies to CPLR article 78 prohibition proceedings (see CPLR 217 [1]…) and the petition here was filed more than two years after the mistrial was declared. Although a tolling period for continuing harm has been recognized … and would be adopted by our concurring colleague, we reject its application in this situation. Once the People definitively demonstrated their intent to re-prosecute and the court began to calendar the case for eventual trial, Smith was obligated to initiate his Double Jeopardy-based article 78 challenge within the statutorily prescribed time frame. On the facts of this case, that period expired well before prohibition was sought, and therefore, the proceeding was barred by the statute of limitations. Matter of Smith v Brown, 2014 NY Slip OP 07090, CtApp 10-21-14

 

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Although the Police Could Have Done More to Make Sure Defendant Was Not Represented by Counsel Before Questioning Him, Defendant’s Prior Attorney’s Statement to the Police that He Was No Longer Representing the Defendant Was Enough

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that the police properly questioned the defendant without an attorney present after they were told by defendant's prior attorney that the he no longer represented the defendant. Defendant was represented on a robbery charge. After defendant indicated he had knowledge of the commission of an unrelated murder, he entered a plea bargain which promised a reduced sentence if he provided useful information about the murder.  The police who interviewed the defendant about the murder did not believe his story and the defendant did not receive a reduced sentence for the robbery.  Subsequently, the police suspected defendant was himself involved in the murder.  Before questioning the defendant, the police met with the attorney who had represented the defendant on the robbery charge.  The police did not tell the attorney why they wanted to question the defendant. The police then elicited statements from the defendant without any further inquiry about whether he was represented by counsel.  The dissent argued that there was ambiguity about the defendant's representational status, the burden was on the police to make sure the defendant was no longer represented before questioning him, and that burden was not met here:

Here, the police did have a reason — an excellent one — to believe that the attorney-client relationship had ceased: the attorney had told them so. By asking the question and getting an unequivocal answer, the police discharged their burden. It is no doubt true that they could have done more. They could have explained to [defendant's attorney] exactly why they were eager to talk to defendant, or they could have asked defendant himself whether the relationship had reached an end. Perhaps had they done so, they would have received a different answer. But the police are not required to take all imaginable steps to protect a defendant's right to counsel. Where they follow the rules laid down in our cases — rules that are, in general, highly protective of the attorney-client relationship — they need do no more … .  People v McLean, 2014 NY Slip Op 07085, CtApp 10-21-14

 

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“Outing” Confidential Informant Online Constituted Witness Tampering

The Court of Appeals affirmed defendant's conviction for fourth-degree witness tampering.  Defendant was present when a confidential informant purchased drugs from defendant's companion.  The transaction was videotaped.  Defendant put the surveillance tape online and identified the confidential informant on his Facebook page.  Statements on the Facebook page by the defendant and others included warnings such as “Snitches get stiches:”

The evidence, seen in the light most favorable to the People, is sufficient to establish that defendant knew that the confidential informant might testify in a proceeding, and that he wrongfully sought to stop her from doing so. After learning about Jackson's arrest and the confidential informant's role as a witness against Jackson and, potentially, himself, defendant immediately posted communications on the internet that the jury might have reasonably inferred were coded threats that were intended to induce the confidential informant not to testify. And in addition to the public postings on Facebook and YouTube, defendant was in contact via Facebook messages (which essentially act as email on the website) with the confidential informant and her mother. People v Horton, 2014 NY Slip Op 07088, Ct.App. 07088, CtApp 10-21-14

 

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County Court Was Not Required to Inquire Whether Defendant Wished to Seek New Counsel—Defendant’s Counsel of Choice Was Ill and County Court Ordered the Trial to Go Forward with Substitute Counsel (Selected by Defendant’s Counsel of Choice) After Denying Defendant’s Request for an Adjournment

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined defendant was not denied the right to his counsel of choice when County Court ordered the trial to go ahead with substitute counsel (selected by defendant's counsel of choice) because defendant's counsel of choice was ill.  The case turned on its facts.  Defendant did not request an adjournment to seek new counsel.  County Court was not required to ask the defendant whether he wished to seek new counsel:

A defendant who does not require appointed counsel has a right under both Federal and State constitutions to choose who will represent him … . “The constitutional guarantee to be represented by counsel of one's own choosing is a fundamental right” … . Nevertheless, “the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system” … .

In particular, we have held that a defendant may not use the right to counsel of choice “as a means to delay judicial proceedings. The efficient administration of the criminal justice system is a critical concern to society as a whole, and unnecessary adjournments for the purpose of permitting a defendant to retain different counsel will disrupt court dockets, interfere with the right of other criminal defendants to a speedy trial, and inconvenience witnesses, jurors and opposing counsel” … . In short, appellate courts must recognize “a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar” … .

Significantly, in the present case, defendant does not contend that he expressly requested new counsel … and that the request was wrongly denied. Rather, defendant's principal argument is that when he moved, through counsel, for adjournment, County Court was obliged to inquire of him whether he was in fact seeking new counsel. We disagree.

…[I]n this case, County Court did not violate any of defendant's constitutional rights by denying the adjournment motions without that inquiry. On the record before us on direct appeal …  no communication was made to County Court from which it would appear that defendant was asking for the opportunity to retain new counsel, or for an adjournment in the hope that [his counsel of choice] would recover quickly enough to become his trial counsel. Rather, defendant simply sought an adjournment to give [substitute counsel] more time to prepare. Under these circumstances, there was no obligation on the part of County Court to inquire as to whether defendant was seeking new counsel. People v O'Daniel, 2014 NY Slip Op 07087, CtApp 10-21-14

 

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Failure to Request Adverse Inference Jury Instruction Re: Missing Material Evidence, Under the Facts, Did Not Constitute Ineffective Assistance of Counsel

The Court of Appeals, in a full-fledged opinion by Jude Lippman, determined defense counsel's failure to request an adverse inference jury instruction did not constitute ineffective assistance of counsel.  The defendant shot four men.  He claimed the men were about to attack him with razors. A videotape which apparently would have shown the altercation had been destroyed.  The trial took place in 2009, before the ruling in People v Handy, 20 NY3d 663 (2013), which established the adverse interest charge is mandatory upon request where evidence likely to be of material importance has been destroyed by the state. The Court of Appeals found that defense counsel's failure to request the adverse inference charge, if it was a mistake, was not enough to support a claim of ineffective assistance.  Proof presented at trial was at odds with defendant's assertion he acted in self-defense:

It is well-established that the effectiveness of a representational effort is ordinarily assessed on the basis of the representation as a whole … . One error — and only one is identified here — in the context of an otherwise creditable performance by counsel generally will not suffice in support of the conclusion that the representation was not “meaningful” … or fell below the objective standard of reasonableness required by the Federal Constitution … . There are, of course, exceptional cases in which an error is so clear-cut, egregious and decisive that it will overshadow and taint the whole of the representation …, but this is not that rare sort of case. Allowing for argument's sake that counsel erred in omitting to request the charge, that lone error was not in the context of this prosecution sufficiently egregious and prejudicial to constitute a predicate for the relief now sought. The entitlement to an adverse inference charge, such as the one defendant's attorney allegedly neglected to seek, was not conclusively established until 2013 when we decided People v Handy (20 NY3d 663 [2013]). It was in Handy that we first held such a charge to be mandatory upon request “when a defendant in a criminal case, acting with due diligence, demand[ed] evidence . . . reasonably likely to be of material importance, and that evidence ha[d] been destroyed by the State” (id. at 665). Before Handy, the availability of the charge was discretionary. At the time of defendant's trial, in 2009, competent counsel would naturally have seized upon the government's unexplained failure to preserve probably material evidence to encourage an inference adverse to the prosecution and favorable to her client, precisely as defendant's trial counsel did, but there was then no legal authority absolutely entitling her client to the judicial instruction she is now faulted for not having sought (see Handy, 20 NY3d at 669-670). Perhaps it was a mistake not to seek the charge, which likely would have been given as a matter of discretion, but if it was a mistake, it was not one so obvious and unmitigated by the balance of the representational effort as singly to support a claim for ineffective assistance. * * *

We do not exclude the possibility that, post-Handy, the failure to request a Handy charge could support an ineffective assistance claim. But the viability of such a claim, conditioned upon a demonstration of prejudice attributable to counsel's inadequacy …, would depend, in crucial part, upon facts making the adverse inference Handy merely makes available at least reasonably plausible. The present facts do not meet that condition. On this record, it cannot be said that there was even a reasonable possibility, much less a reasonable probability …that the jury, if offered the opportunity, would have elected to draw an inference adverse to the prosecution as to what the missing video would have shown. People v Blake, 2014 NY Slip Op 07086, CtApp 10-21-14

 

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Complaint Stated a “Mixed Opinion” Defamation Cause of Action—A “Mixed Opinion” Statement Implies It Is Based Upon Facts Unknown to the Reader—Pre-Answer Motion to Dismiss Should Not Have Been Granted

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversed the 4th Department and reinstated a defamation complaint against Syracuse University and James Boeheim, the head coach of the Syracuse University men’s basketball team. The complaint had been dismissed pursuant to CPLR 3211(a)(7) on the ground that the statements were pure opinion and were therefore not actionable as a matter of law. The Court of Appeals determined that the allegations in the complaint (accepted as true for purposes of the pre-answer motion to dismiss) included statements by Coach Boehein which implied the existence of facts within his knowledge but unknown to the reader.  Such statements are actionable as “mixed opinion.”  The plaintiffs alleged that the team’s associate coach had sexually molested them more than twenty years before.  Coach Boeheim described the plaintiffs as liars who were making the allegations for financial gain.  The court explained its role in determining a pre-answer motion to dismiss and the relevant law of defamation:

This appeal comes to us on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), a procedural posture which requires that “we accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiff’s claim” … . Unlike on a motion for summary judgment where the court “searches the record and assesses the sufficiency of the parties’ evidence,” on a motion to dismiss the court “merely examines the adequacy of the pleadings” … . In determining the sufficiency of a defamation pleading, we consider “whether the contested statements are reasonably susceptible of a defamatory connotation” … . As we have previously stated, “[i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action” … . We apply this liberal standard fully aware that permitting litigation to proceed to discovery carries the risk of potentially chilling free speech, but do so because, as we have previously stated, “we recognize as well a plaintiff’s right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets the minimal standard necessary to resist dismissal of the complaint” … . * * *

In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications. Thus, a false statement “that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation” … . “Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, ‘only statements alleging facts can properly be the subject of a defamation action'” … .

A defamatory statement of fact is in contrast to “pure opinion” which under our laws is not actionable because “[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” …. For, “[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas” … . A pure opinion may take one of two forms. It may be “a statement of opinion which is accompanied by a recitation of the facts upon which it is based,” or it may be “an opinion not accompanied by such a factual recitation” so long as “it does not imply that it is based upon undisclosed facts” … .

While a pure opinion cannot be the subject of a defamation claim, an opinion that “implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, [] is a ‘mixed opinion’ and is actionable” … . This requirement that the facts upon which the opinion is based are known “ensure[s] that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw [the reader’s] own conclusions concerning its validity” … . What differentiates an actionable mixed opinion from a privileged, pure opinion is “the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker’s] opinion and are detrimental to the person” being discussed ,,, .

Distinguishing between fact and opinion is a question of law for the courts, to be decided based on “what the average person hearing or reading the communication would take it to mean” … . “The dispositive inquiry … is ‘whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff” … . Davis v Boeheim, 2014 NY Slip Op 07083, CtApp 10-21-14

 

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Client May Pursue a Legal Malpractice Action Without Appealing the Ruling Upon Which the Malpractice Allegation Is Based Where It Has Not Been Demonstrated the Appeal Is Likely to Succeed

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that the plaintiff's failure to appeal a ruling that plaintiff's action was time-barred did not preclude plaintiff from bringing a legal malpractice action against the attorneys who represented the plaintiff in the time-barred action.  The failure to appeal would only act as a bar to the legal malpractice action if the defendants demonstrated the appeal was likely to have succeeded:

Here, the Appellate Division adopted the likely to succeed standard employed by our sister states with a proximate cause element . We agree that this is the proper standard, and that prior to commencing a legal malpractice action, a party who is likely to succeed on appeal of the underlying action should be required to press an appeal. However, if the client is not likely to succeed, he or she may bring a legal malpractice action without first pursuing an appeal of the underlying action.

On balance, the likely to succeed standard is the most efficient and fair for all parties. This standard will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients' unfavorable result. Contrary to defendants' assertion that this standard will require courts to speculate on the success of an appeal, courts engage in this type of analysis when deciding legal malpractice actions generally … . Grace v Law, 2014 NY Slip Op 07089, CtApp 10-21-14

 

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Questions of Fact Raised About Whether Access to a Flat Roof through a Window and a Fall from the Roof Into an Unprotected Air Shaft Were Foreseeable

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined there were questions of fact about whether the applicable regulations and codes required that there be a railing around an air shaft, and whether it was foreseeable that plaintiff would gain access to the flat roof through a window and fall into the shaft.  The opinion includes a detailed description of the relevant building regulations.  With respect to foreseeability, the court wrote:

It is well settled that, as landowners, defendants have “a duty to exercise reasonable care in maintaining [their] . . . property in a reasonably safe condition under the circumstances” … . The existence and scope of this duty is, in the first instance, a legal question for the courts to determine by analyzing the relationship of the parties, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was within the reasonably foreseeable risks … .

The focus of our inquiry, therefore, is whether it was foreseeable that defendants' tenants and their guests would access the setback roof and be exposed to a dangerous condition from the absence of a railing or guard around the air shaft. * * *

…[H]ere, the setback roof was flat and of sufficient size and length to comfortably permit several individuals to stand or walk on it. Access to the roof was easily obtained through the hallway window, and neither plaintiff nor his friends had any difficulty exiting. … Here, the tenant of the apartment that plaintiff was visiting testified that he had stepped onto the roof through the window approximately 15 times in the two months preceding the accident to smoke cigarettes and that the previous tenant had often done the same. According to the resident, evidence of this use was visible because cigarette butts and garbage littered the roof. On this record …reasonable minds could differ as to whether plaintiff's use of the roof and his resulting fall were foreseeable, thereby precluding the grant of summary judgment to defendants on that ground. Powers v 32 E 31 LLC, 2014 NY Slip Op 07084, CtApp 10-21-14

 

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