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Excessive Intervention by Trial Judge Required New Trial

Over a partial dissent, the Second Department granted defendant a new trial before a different justice in a medical malpractice case based upon the trial judge’s erroneous exclusion of evidence, excessive intervention in the trial, and an erroneous (“Noseworthy”) jury instruction. With respect to the judicial intervention, the Second Department wrote:

The defendant was … deprived of a fair trial by the court’s excessive intrusion into the examination of witnesses, and by the nature and extent of its questioning and comments … . It is axiomatic that the trial court “has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary” … . Nonetheless, a trial court must be “mindful that its participation in the questioning of witnesses has the potential to influence the jury and, thus, when it intervenes to clarify testimony or elicit a responsive answer, it must be careful to do so in an evenhanded and temperate manner” … . Here, while the trial court had the authority to elicit and clarify the defense witnesses’ testimony, the record shows that on repeated occasions, including those specifically discussed by our dissenting colleague, it did not do so in an evenhanded and temperate manner. The court conveyed an impression of incredulity with respect to the defense witnesses’ opinions, as reflected by the record … . Moreover, the court’s incredulity had an improper cumulative effect … . Nunez v New York City Health & Hosps Corp…, 2013 NY Slip Op 06350, 2nd Dept 10-2-13

 

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Error to Dismiss Failure-to-Mitigate-Damages Affirmative Defense in Contract Dispute

In a contract dispute, the Second Department determined Supreme Court should not have dismissed the defendant-Everfoam’s affirmative defense alleging plaintiffs failed to mitigate damages, noting that the duty to mitigate arises from the common law and need not be expressly bargained for in the contract:

…[T]he Supreme Court erred in awarding summary judgment dismissing Everfoam’s fourth affirmative defense alleging that the plaintiffs failed to mitigate damages, based on its determination that “no such duty exists within the parties’ contract.” To the contrary, the duty to mitigate damages arising from a breach of contract is a duty that arises from common law and, therefore, need not be expressly bargained for in a contract to be enforceable … . Accordingly, assuming liability, Everfoam should be entitled to limit damages, if any, if the plaintiffs failed to make “reasonable exertions to minimize the injury” … . Mack-Cali Realty LP v Everfoam Insulation Sys Ind, 2013 NY Slip Op 06348, 2nd Dept 10-2-13

 

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Ineffective Assistance of Counsel Mandated New Trial—Difference Between Federal and State Ineffectiveness Criteria Explained

In determining the defendant was entitled to a new trial because of the ineffectiveness of his trial counsel, the Second Department explained the difference between the federal and state criteria for ineffective assistance.  Supreme Court had vacated defendant’s murder conviction (ineffective assistance) but allowed the conviction for criminal possession of a weapon to stand.  The Second Department explained that, even though there was evidence to support the criminal possession of a weapon charge, the state ineffective assistance criteria required a new trial on all counts:

A defendant is guaranteed the effective assistance of counsel under both the federal and state constitutions (see US Const, amend VI; NY Const, art I, § 6…). The state standard is considered “somewhat more favorable to defendants,” focusing on “the fairness of the process as a whole rather than its particular impact on the outcome of the case” …. “[T]he constitutional requirements [for the effective assistance of counsel] are met when the defense attorney provides meaningful representation” …. While prejudice to the defendant is a necessary factor under the federal standard, embodied in a “but for” test …, under the state standard, “a defendant’s showing of prejudice is a significant but not indispensable element in assessing meaningful representation” …. “To meet the New York standard, a defendant need not demonstrate that the outcome of the case would have been different but for counsel’s errors” … . Generally, harmless error analysis is inapplicable to an ineffective assistance of counsel claim arising from counsel’s performance at trial … .

Here, the litany of failures by defense counsel documented by the Supreme Court established that the defendant was denied “meaningful representation” by his trial attorney. Notwithstanding the fact that there was strong evidence that the defendant possessed a loaded firearm during the incident in question, the New York State constitutional standard for the effective assistance of counsel “is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . People v Canales, 2013 NY Slip Op 06376, 2nd Dept 10-2-13

 

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“Anders” Brief Rejected

In rejecting an “Anders” brief, the Second Department noted:

The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738) was deficient. The body of the brief—which was only 1½ pages in length—did not contain a statement of facts, and did not contain any case citations. The brief failed to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . Since the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his . . . client” … or that he diligently examined the record, we must assign new counsel to represent the appellant… .  People v McNair, 2013 NY Slip Op 06389, 2nd Dept 10-2-13

 

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Mother Demonstrated Relocation to Mississippi Was In Best Interest of Child, Job and Family Support Available

In a full-fledged opinion by Justice Saxe, the First Department reversed Family Court and granted the mother’s petition for relocation with the couple’s child to Mississippi.  The mother’s inability to find sufficient work in New York, after several years of effort, coupled with job offers in Mississippi and the support of grandparents in Mississippi, were important factors:

In this relocation case, where respondent mother, Elizabeth E., seeks permission to move with the parties’ child to Oxford, Mississippi, we are once again confronted with the problem of balancing a child’s need for the ongoing presence of both parents in his daily life, with the custodial parent’s proven inability to support herself and the child beyond the subsistence level here in New York. * * *

Admittedly, the mother here is not (yet) destitute. Her financial situation is certainly not as bleak as that of the mother in Matter of Melissa Marie G. v John Christopher W. (73 AD3d 658, 658 [1st Dept 2010]), where this Court affirmed the grant of the mother’s application to relocate with the parties’ child to a stable home near the mother’s family in Florida, after she and the child had lived in a series of homeless shelters. However, while the need to improve the mother’s and child’s economic situation was far more extreme in that case, we find that the present relocation application was prompted by a legitimate, pressing need for a secure economic situation. Not only do we reject the unsupported suggestion that the mother actually had other, hidden, means of support, but we observe that proof of economic necessity does not require the parent to wait until she has used up every last dollar of her savings before taking steps to ensure that she will be able to care for the child’s future economic needs. Matter of Kevin McK v Elizabeth AE, 2013 NY Slip Op 06328, 1st Dept 10-1-13

 

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Defendant Failed to Raise Question of Fact About Lack of Notice of Icy Condition

Over a dissent, the First Department determined the defendant in a slip and fall case failed to raise a question of fact re: its claim it did not have notice of the icy condition on the sidewalk. The court explained that the defendant failed to offer sufficient evidence of the condition of the sidewalk before the fall:

Plaintiff correctly contends that defendants failed to satisfy their prima facie burden since they did not submit evidence sufficient to establish that they did not have constructive notice of the hazardous icy condition on the sidewalk in front of their franchise restaurant on which plaintiff allegedly slipped …. In cases involving slip and falls on icy sidewalks, a defendant moving for summary judgment must proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident … . …

Defendants’ supervisor, who only visited that franchise twice per week, attested that the employees would typically respond to winter storms by shoveling the sidewalk, and then applying rock salt. However, she had no personal knowledge of whether this procedure was followed in response to this storm, did not aver that she was present on either the day of the storm or the accident, and offered no evidence as to when the sidewalk had last been inspected or cleaned of snow, ice, or other debris. Hence, defendants’ evidence was “not probative of lack of actual or constructive notice,” and the evidence of their general procedures, standing alone, was insufficient to satisfy their burden on summary judgment …. As defendants failed to meet their initial burden, the motion should have been denied regardless of the sufficiency of plaintiff’s opposition papers … . Rodriguez v Bronx Zoo Rest. Inc, 2013 NY Slip Op 06294, 1st Dept 10-1-13

 

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Writ of Prohibition Barring Retrial Granted—Mistrial Granted Without Consent of Defendant Was Not Justified

The First Department granted a writ of prohibition barring a retrial of the defendant because the judge ordered a mistrial without the consent of the defendant based upon a comment made by defense counsel in summation. The First Department determined the comment was not sufficiently prejudicial to justify the mistrial:

Jeopardy attaches once a jury has been selected and sworn … . When a mistrial is declared without the consent or over the objection of a criminal defendant, the prohibition against double jeopardy contained in the Fifth Amendment of the United States Constitution and in section 6 of article I of the New York State Constitution bars retrial for the same offense or offenses unless there is a manifest necessity for the mistrial or the ends of public justice would otherwise be defeated … . Here, as the People concede, counsel’s summation comment was not overly prejudicial and provided no basis for a mistrial on “manifest necessity” or “ends of public justice” grounds. Matter of Smith v Williams, 2013 NY Slip Op 06329, 1st Dept 10-1-13

 

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Canadian Attorney Practicing in New York Properly Convicted of Unlicensed Practice of Law

The First Department affirmed the conviction of a Canadian attorney (not admitted in New York) whose New York law firm, which employed members of the New York bar, represented clients in immigration matters. The complainants were former clients who testified they retained the defendant’s law firm based upon their belief defendant was licensed to practice in New York. The complainants testified they did not receive the services they paid for and were not refunded their money.  The defendant was charged with grand larceny, scheme to defraud and unlicensed practice of law.  The First Department determined there was sufficient evidence to support the convictions even though there was no evidence defendant explicitly represented she was licensed to practice law in New York.  Several unique issues were discussed including: the Attorney General’s (AG’s) loss of documentary evidence (advertisements and retainer agreements) so the appellate court was unable to review them; the Attorney General’s jurisdiction over the criminal prosecution under Executive Law 63; the power of the Division of State Police to request that the Attorney General prosecute the case; the law of the case with respect to the First Department’s reversal of defendant’s conviction after her first trial and its refusal to dismiss the indictment; and the trial court’s refusal to substitute counsel for the defendant and giving defendant the choice to proceed pro se (which she did).  In discussing the sufficiency of the evidence, the First Department wrote:

Viewing the evidence in the light most favorable to the AG, as we must …, we find that the evidence was sufficient to convict defendant. It was not unreasonable for the jury to have concluded that by promoting herself in an advertisement as being a lawyer specializing in immigration, and having an office in New York, defendant intended to signal that she was licensed to practice in New York. That some of the lawyers working in the office were admitted in New York is of little moment, since defendant traded almost exclusively on her own reputation and expertise in seeking to attract clientele. Further, the fact that defendant’s advertisements made clear that she was admitted to practice in Canada did not preclude the possibility that a client would reasonably believe that she was also admitted in New York, but found it unnecessary to publicize that fact based on her location in Manhattan.

It was also not irrational for the jury to conclude that defendant had an economic motive for concealing her lack of a New York license, despite the fact that such a license was not necessary to process her clients’ immigration applications. Aside from the cachet that prospective clients would have attributed to having a lawyer who was a member of the New York bar, the jury could have concluded that CPI’s clients valued the fact that the attorney they retained was subject to the jurisdiction of local disciplinary authorities if they were unsatisfied with defendant’s work (as many of them were). Indeed, it is clear that CPI’s clients placed a large premium on defendant’s bar status, given that each of them testified that they would not have retained the firm had they known that defendant was not admitted to practice in New York. People v Codina, 2013 NY Slip Op 06291, 1st Dept 10-1-13

 

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Failure to Serve Claim by Certified Mail Deprived Court of Claims of Subject Matter Jurisdiction

The Fourth Department affirmed the Court of Claims’ dismissal of an action for failure to comply with the statutory service-of-claim-by-certified-mail requirement.  The court noted that the court never gained subject matter jurisdiction and, therefore, the CPLR 3211 (e) waiver provision, which addressed personal, not subject matter, jurisdiction, did not apply:

…[C]laimants served their claim on the Attorney General by regular mail instead of by certified mail, return receipt requested, as required by Court of Claims Act § 11. Defendant’s answer raised the defense that the court lacked, inter alia, subject matter jurisdiction based on claimants’ improper service, and defendant later moved to dismiss the claim on that ground.  Claimants opposed the motion and cross-moved for an order deeming the service corrected or disregarded pursuant to CPLR 2001. The court granted defendant’s motion and denied claimants’ cross motion, and we now affirm.

Court of Claims Act § 11 (a) (i) provides that a party seeking to file a claim against the State of New York must serve a copy of the claim upon the Attorney General by certified mail, return receipt requested.  It is well settled that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” … .  Inasmuch as the claim herein was served by regular mail, the court was deprived of subject matter jurisdiction and thus properly dismissed the claim … . Contrary to claimants’ contention, defendant’s motion to dismiss on the ground of improper service, made approximately 20 months after service of its answer, was not precluded by the 60-day waiver provision of CPLR 3211 (e).  The failure to comply with the service requirements in the Court of Claims Act “result[s] not in a failure of personal jurisdiction, . . . but in a failure of subject matter jurisdiction[,] which may not be waived”… . Zoeckler…, v State of New York, 883, 4th Dept 9-27-13

 

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Timeliness Requirements for Motion for Summary Judgment Explained

In affirming the trial court’s determination defendants’ motion for summary judgment was untimely, the Fourth Department explained the applicable law:

“Where . . . a court does not set a date by which summary judgment motions must be made pursuant to CPLR 3212 (a), such a motion must be made no later than 120 days after the filing of the note of issue ‘except with leave of court on good cause shown’ ” … .  Good cause in the context of CPLR 3212 (a) “requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy”… .  O’Brien v Bainbridge…, 990, 4th Dept 9-27-13

 

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