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Attorney-Client Communications Not Discoverable in Legal Malpractice Action​

The First Department ruled defendants were not entitled to attorney-client communications as discovery in an action alleging negligent representation in a probate and accounting proceeding:

 The court properly denied the motion to compel because there is no merit to defendants’ argument that the filing of this malpractice action placed the subject matter of the privileged communications “at issue.” The invasion of the privilege is not required to determine the validity of plaintiffs’ malpractice claim, and the application of the privilege does not deprive defendants of information vital to their defense…. Nor was there a partial, selective disclosure of privileged communications such that the privilege was waived ….  Corrieri v Schwartz & Fang, PC, 2013 NY Slip Op 03797, 1st Dept, 5-28-13

 

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Hearsay Evidence Can Be Considered in Opposition to Summary Judgment Motion As Long As It Is Not the Only Evidence​

In affirming the denial of defendant’s summary judgment motion where plaintiffs’ complaint alleged defendant coerced decedent into executing estate planning documents, the First Department noted that hearsay evidence may be considered as long as it is not the only evidence offered:

While defendant correctly asserts that plaintiffs submitted certain hearsay evidence in opposition to the summary judgment motion, including certain physician and attorney notes, such hearsay evidence may be considered when submitted in opposition to a summary judgment motion, so long as it is not the only proof submitted …. Here, nonhearsay evidence, including affidavits from the decedent’s friends as well as the decedent’s first daughter, described the contentious nature of the marriage and the decedent’s declining mental health. Moreover, the decedent, who was 83 years old and undisputedly suffered from some degree of cognitive impairment when he signed the documents, initiated this lawsuit during his lifetime and attested, by his verified complaint, to his declining health and defendant’s abusive and coercive conduct.  Plaintiffs further rely on a nonhearsay affidavit from a forensic document examiner that concluded that the decedent’s signature was forged on the retainer letter, possibly by defendant, as additional evidence that defendant coerced the decedent into retaining counsel to execute these documents and did not want the decedent to have separate counsel in the event of any conflict. All of this raises triable issues of fact whether defendant wielded sufficient influence over the decedent to overcome his free will …. Bishop v Maurer, 2013 NY Slip Op 03771, 1st Dept, 5-28-13

 

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Respondent Failed to Demonstrate Insertion of Feeding Tube Would Impose an “Extraordinary Burden” Upon the Petitioner​

The Fourth Department reversed Supreme Court and ordered insertion of a feeding tube under general anesthesia for petitioner, Joseph P.  The Fourth Department noted there was evidence Joseph P. was “alert, awake, and communicative, … enjoys social interaction and activities” and, with a feeding tube, has “an excellent prognosis with many years of life.”  The Fourth Department wrote:

It is undisputed that the “threshold requirement” under [Surrogate’s Court Procedure Act] section 1750-b for allowing Joseph P.’s guardians to make the decision to withhold life-sustaining treatment has been met … . Joseph P.’s attending physician also fulfilled the requirements of section 1750-b (4) (a) of “confirm[ing] to a reasonable degree of medical certainty” that Joseph P. “lacks capacity to make health care decisions,” and of consulting with another physician “to further confirm” that lack of capacity …. There is also no dispute that Joseph P. has “a medical condition other than . .. mental retardation which requires life-sustaining treatment, is irreversible and . . . will continue indefinitely” (SCPA 1750-b [4] [b] [i] [C]), and that, without such treatment, he “will die within a relatively short time period” (SCPA 1750-b [1]). The sole issue before us is whether, in view of Joseph P.’s medical condition and the expected outcome of the life-sustaining treatment, i.e., the surgical insertion of the feeding tube artificially providing nutrition or hydration, imposes an “extraordinary burden” on him (SCPA 1750-b [4] [b] [iii] [B]).
Upon our review of the record, we conclude that respondent failed to establish by the requisite clear and convincing evidence that providing nutrition and hydration to Joseph P. by means of medical treatment would impose an extraordinary burden on him (see SCPA 1750-b [1]; [4] [b] [iii] [B…).  Matter of Joseph P. …, CA 13-00798, 4th Dept, 5-24-13

 

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Deputy Sheriff Fired for Incompetence and Insubordination Was Entitled to Unemployment Benefits

In upholding the finding that a former sheriff’s deputy was entitled to unemployment insurance benefits, even though he was terminated for incompetence and insubordination, the Third Department noted that collateral estoppel applied to the factual findings in the Civil Service proceeding, but the Unemployment Insurance Appeal Board could make its own determination whether the facts supported denial of unemployment benefits:

Given that claimant had a full and fair opportunity to litigate the issue of misconduct at the Civil Service Law § 75 hearing, the Board properly accorded collateral estoppel effect to the factual findings of the Hearing Officer… .  It was, however, incumbent upon the Board to draw its own conclusion as to whether such factual findings amounted to misconduct disqualifying claimant from receiving unemployment insurance benefits….  Significantly, “[t]he  same conduct that leads to a claimant being discharged for cause may not necessarily rise to the level of misconduct for unemployment insurance purposes….  The Board’s decision in this regard will not  be  disturbed  if supported  by substantial evidence … . Matter of Guynup, 515235, 3rd Dept, 5-23-13

 

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Doctrine of Continuous Representation/Retainer Agreement in Estate Proceeding “Unconscionable”​

In a case involving “gifts” and a 40% contingency fee for three defendant attorneys’ work on an estate worth several tens of millions, the First Department applied the “doctrine of continuous representation” to toll the statute of limitations and found the fee arrangement(s) “unconscionable:”

The claims relating to the gifts the widow made to the three individual defendants are not time-barred. Rather, they were tolled under the doctrine of continuous representation …. Contrary to the individual defendants’ contention, the doctrine applies where, as here, the claims involve self-dealing at the expense of a client in connection with a particular subject matter….  * * *

The revised retainer agreement is both procedurally and substantively unconscionable…. The evidence shows that the widow believed that under the contingency arrangement, she would receive the “lion’s share” of any recovery. In fact, as it operated, the law firm obtained over 50% of the widow’s share of proceeds. Thus, the law firm failed to show that the widow fully knew and understood the terms of the retainer agreement–an agreement she entered into in an effort to reduce her legal fees … .

In considering the substantive unconscionability of the revised retainer agreement, the Referee correctly considered such factors as the proportionality of the fee to the value of the professional services rendered… , and the risks and rewards to the attorney upon entering into the contingency agreement … .

The amount the law firm seeks ($44 million) is also disproportionate to the value of the services rendered (approximately $1.7 million) … .Matter of Lawrence, 2013 NY Slip Op 03759, 1st Dept, 5-22-13

 

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Matter Remitted; County Court Did Not Follow Procedure Mandated by Drug Law Reform Act

In remitting the matter, the Third Department explained County Court failed to follow the procedure mandated by the Drug Law Reform Act:

The record contains no written order denying defendant’s application for resentencing and setting forth County  Court’s “findings of fact and the reasons for such order” as is required under the Drug Law Reform Act (L 2004, ch 738, § 23). Absent the necessary written order, we are without jurisdiction to consider defendant’s appeal … .  People v Allen, 104967, 3rd Dept, 5-23-13​

 

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Transfer to Another County for Probation Did Not Divest Sentencing Court of Jurisdiction Over Defendant’s Violation of His Intermittent Sentence​

In this case Columbia County Court sentenced defendant to intermittent imprisonment in the Columbia County jail and five years probation in Greene County where defendant resided.  After defendant failed to report to Columbia County Jail, County Court revoked the intermittent sentence and sentenced defendant to four months. Defendant contended Columbia County Court had relinquished jurisdiction by transferring the probation term to Greene County.  The Third Department disagreed:

Defendant’s reliance on CPL 410.80 – which provides for transfer of probation supervision by the sentencing court to the Probation Department in the jurisdiction (county) where  the defendant  resides at sentencing –  is misplaced … . Defendant was not charged  with violating probation but, rather, was  alleged to have violated his intermittent sentence of imprisonment.  The transfer in CPL  410.80 (2) of “all powers  and  duties” of the sentencing court over supervision of probationers to the receiving court does not, as defendant argues, divest the sentencing court of its express jurisdiction to modify  or revoke a sentence of intermittent imprisonment pursuant to Penal Law § 85.05 (1) (b) … . People v Dick, 104424, 3rd Dept, 5-23-13

 

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Expert Evidence About a “Date Rape” Drug Not Implicated in the Trial Did Not Require Reversal; Jury Deemed to Have Considered Only Evidence Supported by the Record​

In a full-fledged opinion by Justice Saxe, the First Department upheld the conviction for rape and for facilitating a sex offense with a controlled substance.  The controlled substance referenced in the indictment and the subject of proof at trial was ecstasy.  However, expert evidence of the effects of another drug, GBH, was allowed in at trial. The First Department determined the unsupported testimony about GBH did not require reversal because it could be assumed the jury relied upon the allegations supported by the evidence:

…[T]he reference in the experts’ testimony to GHB and its symptoms, and the People’s reference to that evidence in support of their summation, did not impermissibly present the jury with a new, legally inadequate theory…. Rather, at worst, the suggestion that the complainant may have also been drugged with GHB was merely a “factually unsupported theory” …. “[W]here jurors are given a choice between a factually supported and factually unsupported theory, it is assumed they have chosen the one with factual support” …. Here, we can assume that in determining whether the complainant was “rendered temporarily incapable of appraising or controlling [her] conduct owing to the influence of a narcotic or intoxicating substance administered to [her] without [her] consent,” the jurors relied on those of the People’s assertions that were supported by the evidence. People v Blackwood, 2013 NY Slip Op 03764, 2nd Dept, 5-23-13

 

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Defense Counsel Deemed Ineffective/Failed to Examine Evidence

The First Department determined defense counsel was ineffective (requiring a new trial) because he emphasized the difference between the Ziploc bags (containing drugs) the defendant was alleged to have sold to an undercover officer and the bags which were in defendant’s possession upon his arrest without ever comparing them.  When the jury asked to see the bags which were in defendant’s possession, defense counsel was forced to acknowledge that they matched those purchased by the undercover officer:

In focusing on the Ziploc bags, counsel eviscerated his entire strategy. No longer could the jury believe that no physical evidence tied defendant to the charges; to the contrary, counsel pointed them in the direction of strong physical evidence. Further, the jury could not be expected to acquit defendant on the theory that the People’s case lacked credibility when his own counsel demonstrated a lack of believability on a critical issue at trial. In addition, defendant’s own credibility was directly undermined by counsel’s failure to conduct due diligence, since he testified about a discrepancy between the drugs purchased by the undercover and those recovered from him by the police. There was no sound strategy underlying counsel’s decision to focus the jury on the evidence bags. By his own admission, it was a mistake, and he would not have highlighted the Ziploc bags had he known their actual contents. This self-sabotage of counsel’s defense strategy, albeit inadvertent, was inherently unreasonable and prejudiced defendant’s right to a fair trial under New York law… .  People v Barnes, 2013 NY Slip Op 03757, 1st Dept, 5-23-13

 

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Defendant Did Not Demonstrate Plaintiff was Special Employee​

The Second Department determined the defendant did not demonstrate plaintiff was its special employee and therefore plaintiff was not restricted to Workers’ Compensation as his remedy:

In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of equipment, and the right to discharge…. “A significant and weighty factor . . . is who controls and directs the manner, details and ultimate result of the employee’s work'”….

Contrary to the determination of the Supreme Court, the defendant failed to come forward with sufficient evidence of a special employment relationship to demonstrate its prima facie entitlement to judgment as a matter of law, since its submissions on the motion did not establish, inter alia, that it controlled and directed the manner, details, and ultimate result of the plaintiff’s work… . Nolan v Irwin Contr, Inc, 2013 NY Slip Op 03648, 2nd Dept, 5-22-13

 

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