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QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION; THE ATTORNEY HAD ATTEMPTED TO REMEDY THE FAILURE TO FILE OBJECTIONS IN AN ESTATE MATTER AFTER THE STATUTE HAD RUN; ABSENCE OF AN EXPERT’S REPORT FROM THE RECORD ON APPEAL PRECLUDED A RULING ON THE RELATED ISSUE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff had raised a question of fact whether the continuous representation doctrine tolled the statute of limitations in this legal malpractice action. The attorney had attempted to remedy the failure to file objections in an estate matter after the statute had run. The Fourth Department noted that plaintiff’s expert’s report was missing from the record on appeal and therefore plaintiff was unable to argue on appeal that he had raised a related question of fact (concerning damages) before Supreme Court. Defendant had argued the damages were speculative (requiring dismissal) and Supreme Court did not rule on the issue (because the case was dismissed as untimely). The matter was remitted for a ruling on the damages issue:

We are unable to review plaintiff’s contention that he raised a triable issue of fact with respect to … damages by submitting an expert report inasmuch as plaintiff failed to include that document in the record on appeal. Thus plaintiff, as the party raising this issue on his appeal, “submitted this appeal on an incomplete record and must suffer the consequences” … . …

Defendant met his burden … by establishing that the statute of limitations for legal malpractice is three years (see CPLR 214 [6]), that the estate cause of action accrued on November 1, 2010, the last date on which to file objections to the accounting …, and that the estate cause of action was therefore untimely when this malpractice action was commenced on November 15, 2013. “The burden then shifted to plaintiff[] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine” … .

We agree with plaintiff that the court erred in determining that plaintiff failed to do so. It is well settled that, in order for the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … . Here, plaintiff submitted evidence that defendant made several unsuccessful attempts to file the objections within the weeks after the deadline and that he made preparations to appear at a scheduled conference on the objections on November 23, 2010. Those efforts could be viewed as “attempt[s] by the attorney to rectify an alleged act of malpractice” … , and thus plaintiff raised a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine. Leeder v Antonucci, 2019 NY Slip Op 05898, Fourth Dept 7-31-19

 

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POLICE OFFICERS’ TESTIMONY BASED UPON DEBRIEFING GANG MEMBERS WAS INADMISSIBLE TESTIMONIAL HEARSAY AND THE POLICE OFFICERS, WHO WERE QUALIFIED AS GANG EXPERTS, ACTED AS IMPERMISSIBLE SUMMATION WITNESSES, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the testimony of two police officers (qualified by the court as gang experts( about information gleaned from interviewing gang members was testimonial hearsay, in violation of Crawford, and the police experts acted as summation witnesses, in violation of Iona:

During the trial, the Supreme Court declared Detective Adam Georg an expert “in the hierarchy, practices, [and] languages of the S.N.O.W. Gang and other gangs.” Similarly, the court declared Lieutenant Robert Bracero an expert “in the history, hierarchy, practices and language of the S.N.O.W. Gang and rival gangs.” Georg testified that his knowledge of the S.N.O.W. Gang was derived from, among other things, approximately 70 to 80 debriefings of S.N.O.W. Gang members, many of whom had been arrested and were in custody at the police station or in jail. Similarly, Bracero testified that he debriefed approximately 50 S.N.O.W. Gang members after their arrests. * * *

… [T]he defendant contends that Georg’s and Bracero’s testimony violated Crawford v Washington (541 US 36) by permitting the introduction into evidence of out-of-court testimonial statements made by absent witnesses who were never subjected to cross examination … , and that Georg’s testimony also ran afoul of the proscription against police experts acting as summation witnesses, in violation of People v Inoa (25 NY3d 466, 474-475). …

… .[F]or the reasons set forth in our decision and order on appeal by one of the codefendants (People v Jones, 166 AD3d 803), the testimony of Georg and Bracero violated Crawford and Inoa. Since the evidence of the defendant’s guilt, without reference to the errors, was far from overwhelming, these errors were not harmless … . People v Campbell, 2019 NY Slip Op 05992, Second Dept 7-31-19

 

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DEFENDANT WHO KIDNAPPED HER BIOLOGICAL CHILD WAS NOT EXEMPT FROM SORA REGISTRATION (FOURTH DEPT).

The Fourth Department determined defendant’s waiver of appeal was invalid but rejected her argument that she was exempt for SORA registration because she is the parent of the kidnapping victim, who had been adopted by a family:

The victim of the kidnapping was defendant’s biological child, who had been removed from defendant’s care more than eight years earlier following allegations of abuse concerning the victim’s sibling. Defendant surrendered her parental rights to both the victim and the victim’s sibling, and the children were adopted by a family.

“SORA defines sex offender’ to include any person who is convicted of’ any of a number of crimes listed in the statute . . . SORA requires all people included in this definition to register as sex offenders” … . The list of offenses provided in the statute includes “section 135.05, 135.10, 135.20 or 135.25 of [the Penal Law] relating to kidnapping offenses, provided the victim of such kidnapping . . . is less than seventeen years old and the offender is not the parent of the victim” … . Although we have not yet had the occasion to address whether a biological parent who has surrendered his or her parental rights and whose child has been adopted is entitled to the benefit of the parent exemption set forth in the SORA statute, in People v Brown (264 AD2d 12 [4th Dept 2000]), this Court determined that, in a prosecution for kidnapping, such a person could not assert as an affirmative defense that he or she was a relative of the victim … inasmuch as a biological parent’s status as a “parent” with respect to an adopted child was terminated ” in all respects’ ” by an order of adoption … . Applying that same reasoning here, we conclude that defendant, the biological mother of an adopted child who she kidnapped, is not a parent of the victim for the purposes of SORA, and thus defendant is not exempt from SORA registration. People v Weir, 2019 NY Slip Op 05896, Fourth Dept 7-31-19

 

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DEFENDANT RAISED A QUESTION OF FACT WHETHER THE TERMS OF THE NOTE REFLECTED THE ACTUAL AGREEMENT BETWEEN THE PARTIES (MUTUAL MISTAKE) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant had raised a question of fact whether the note set forth the actual agreement between the parties:

“Because the thrust of a reformation claim is that a writing does not set forth the actual agreement of the parties, generally . . . the parol evidence rule . . . [does not] appl[y] to bar proof, in the form of parol or extrinsic evidence, of the claimed agreement” … . Nevertheless, “there is a heavy presumption that a deliberately prepared and executed written instrument manifest[s] the true intention of the parties’ . . . and a correspondingly high order of evidence is required to overcome that presumption” … . “The proponent of reformation must show in no uncertain terms, not only that mistake . . . exists, but exactly what was really agreed upon between the parties’ ” … . …

… [D]efendant here set forth, in detail, the basis for his contention that both parties reached an agreement different from that set forth in the note. The affidavits of the CIO [plaintiff’s chief investment officer] and defendant contain the identical assertion that both parties—plaintiff via the CIO and defendant—agreed that plaintiff’s right to secure repayment of the loan would be limited to defendant’s stock interest … . The affidavits of the CIO and defendant are based upon personal knowledge and state in detail their understanding of the negotiations and the resulting agreement. Moreover, the CIO averred that he negotiated the loan on behalf of plaintiff at the time he was its chief investment officer, and he concluded that the terms of the note did not reflect what the parties had intended. Thus, in opposition to plaintiff’s motion, we conclude that defendant submitted the requisite “high level” of proof required to raise a triable issue of fact regarding mutual mistake. Stache Invs. Corp. v Ciolek, 2019 NY Slip Op 05856, Fourth Dept 7-31-19

 

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SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANT’S MOTION TO DISMISS THE INDICTMENT IN THE FURTHERANCE OF JUSTICE WITHOUT HOLDING A HEARING BECAUSE ESSENTIAL FACTS WERE IN DISPUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, in an appeal by the People, determined defendant’s motion to dismiss an indictment in the furtherance of justice should not have been granted without a hearing because the facts were in dispute. The Second Department also noted that the defendant had demonstrated good cause for bringing the motion after the 45-day deadline:

… [T]he Supreme Court should not have decided the motion without conducting a hearing. CPL 210.40 authorizes the court to dismiss an indictment or any count thereof in furtherance of justice, as a matter of judicial discretion, when, after considering certain enumerated factors, the court finds “the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice”… . In deciding such a motion, “a court must strike a sensitive balance between the individual and the State’ interests to determine whether the ends of justice are served by dismissal of the indictment” … . “Such a value judgment hinge[s] on the production of facts in the possession of the prosecution and the defendant'”… . CPL 210.45 requires a hearing when the facts essential to the determination of a motion made pursuant to CPL 210.40 are in dispute … . Here, since the essential facts were in dispute, the court should have conducted a hearing before making its findings of fact … . People v Burke, 2019 NY Slip Op 05991, Second Dept 7-31-19

 

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THE REMAINDER BENEFICIARIES’ ACTION ALLEGING THE EXECUTOR’S VIOLATION OF A STANDSTILL AGREEMENT, WHICH REQUIRED THE EXECUTOR TO KEEP THE FUNDS FROM THE SALE OF THE DECEASED’S BUSINESS IN A SEGREGATED ACCOUNT UNTIL THE DAUGHTERS’ REMAINDER INTERESTS WERE DETERMINED, DID NOT VIOLATE THE IN TERROREM CLAUSE OF THE WILL WHICH PROHIBITED THE DAUGHTERS FROM CONTESTING THE WILL, SURROGATE’S COURT REVERSED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the daughters of the deceased, remainder beneficiaries, did not violate the in terrorem clause of the will by bringing an action against the executor alleging the executor’s violation of a standstill agreement.  In the standstill agreement with the executor (Anna Marie, the deceased’s wife), Anna Marie agreed to hold the proceeds from the sale of the deceased’s interest in a business in a segregated bank account while Anna Marie and the daughters determined the daughters’ interests in the liquidated assets as remainder beneficiaries of Anna Marie’s life estate:

The will included an in terrorem clause which provided for the revocation of the interest of any beneficiary who “institute[s] . . . any proceedings to set aside, interfere with, or make null any provision of this Will, . . . or shall in any manner, directly or indirectly, contest the probate thereof.” The will left the “rest, residue, and remainder” of the decedent’s estate to Anna Marie, absolutely, “to the exclusion of any children of mine.” * * *

… [T]the daughters alleged in the Supreme Court action that Anna Marie breached her fiduciary duty as executor and holder of the life estate in the decedent’s interest in Brady Avenue by taking possession of the entire proceeds of the sale to the exclusion and detriment of the daughters as remainder beneficiaries. The daughters have not lodged any contest to the validity of the will, or otherwise interfered with its provisions granting Anna Marie discretion to dispose of estate assets in her capacity as executor. Moreover, the claim that Anna Marie violated the standstill agreement did not implicate any challenge to the will. Thus, we disagree with the determination of the Surrogate’s Court that the daughters violated the in terrorem clause of the will and forfeited their legacies under the will … . Matter of Sochurek, 2019 NY Slip Op 05987, Second Dept 7-31-19

 

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ALTHOUGH THE ARTICLE 78 PETITION WAS VERIFIED BY AN ATTORNEY, THE VERIFICATION WAS VALID BECAUSE THE ATTORNEY HAD FIRST-HAND KNOWLEDGE OF THE FACTS; IN ADDITION, ANY DEFECTS IN THE VERIFICATION WERE WAIVED BY RESPONDENTS; PRIOR ARBITRATION PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT WAS NOT AN OBSTACLE TO THE PETITION ALLEGING A VIOLATION OF THE EDUCATION LAW CONCERNING THE SUSPENSION OF A SCHOOL PRINCIPAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the verification of an Article 78 petition by petitioner’s attorney was valid because the attorney had first hand knowledge of the contents and, even if the verification was invalid, the respondent had waived any objection to it. The matter concerns the suspension of a school principal which had been the subject of arbitration pursuant to the collective bargaining agreement. The arbitration was not an obstacle to these proceedings brought pursuant to the Education Law because the issues are not the same.  The issue involved in the Article 78 petition, an interpretation of Education Law 2566 (6), was not the kind of issue which must first be brought before the Commissioner of Education:

Although the verification requirement of CPLR 7804 (d) must ordinarily be completed by a party, a verification “may be made by [a party’s] attorney [where, as here,] all the material allegations of the pleading are within the personal knowledge of . . . [that] attorney’ ” …  Moreover, a party challenging the sufficiency of a verification is required “to give notice with due diligence to the attorney of the adverse party that he [or she] elect[ed]’ to treat the petition as a nullity” … . Thus, even assuming, arguendo, that the verification by petitioner’s attorney was insufficient, we conclude that respondents waived any challenge to the petition on that ground by failing to make the requisite diligent efforts and instead waiting a month before seeking dismissal of the petition on that basis … . …

… .[A]lthough Education Law § 310 provides … that any party aggrieved by an official act or decision of school authorities “may appeal by petition to the [C]ommissioner of [E]ducation,” the Commissioner exercises primary jurisdiction only where the matter involves an issue requiring his or her specialized knowledge and expertise … . Petitioner’s contention regarding section 2566, however, requires no more than the interpretation and application of the plain language of that statute for which no deference to the Department of Education is required … . Matter of Buffalo Council of Supervisors & Adm’rs, Local #10 v Cash, 2019 NY Slip Op 05895, Fourth Dept 7-31-19

 

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MOTHER DID NOT HAVE STANDING TO BRING AN ACTION TO VACATE THE ADOPTION OF HER CHILD BY HER FORMER HUSBAND PURSUANT TO THE INDIAN CHILD WELFARE ACT (ICWA) BECAUSE THE ACT ONLY APPLIES TO CHILDREN REMOVED FROM A PARENT’S CUSTODY (SECOND DEPT).

The Second Department determined mother did not have standing to bring an action pursuant to the Indian Child Welfare Act (ICWA) to vacate an order of adoption in favor of her former husband. Mother alleged the adoption was not accomplished in compliance with the ICWA. The ICWA only applies to a parent from whose custody the child was removed and the child had not been removed from mother’s custody:

… [A]lthough the adoption proceeding involved the voluntary termination of the birth father’s parental rights to the subject child, the plain language of both 25 USC § 1914 and 25 CFR 23.137(a) is clear that only the child, the parent or Indian custodian from whose custody the child has been removed, and the Indian child’s tribe have standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA . Since the mother does not fall in… to any of those categories, she lacked standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA … . “[T]he language of [section] 1914 …  limits standing to challenge state-law terminations of parental right to parents from whose custody such child was removed'” … . Matter of Connor (Mariann D.–Jacob D.), 2019 NY Slip Op 05979, Second Dept 7-31-19

 

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DEFENDANT DOG OWNER’S ACKNOWLEDGMENT SHE HAD HEARD THAT ONE OF HER DOGS NIPPED A BOY IN A PRIOR INCIDENT WAS NOT ADMISSIBLE EVIDENCE OF THE FACTS OF THE INCIDENT; THEREFORE PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this dog bite case should not have been granted. The plaintiffs relied on deposition testimony in which defendant acknowledged she had heard about a prior incident in which a boy was nipped by one of her dogs. Defendant’s statement was inadmissible hearsay:

Plaintiffs failed, however, to submit evidence in admissible form regarding the purported prior incident allegedly establishing the existence of the dogs’ vicious propensities. Instead, plaintiffs relied on defendant’s inadmissible hearsay testimony during her deposition about what she had heard from others regarding the purported prior incident, for which she was not present and about which she had no firsthand knowledge … . Such evidence is insufficient to meet plaintiffs’ burden on their motion for summary judgment … .

It is true that, “[i]f a party makes an admission, it is receivable even though knowledge of the fact was derived wholly from hearsay” … . If, however, the party merely admits that he or she heard that an event occurred in the manner stated, the party’s statement is “inadmissible as then it would only . . . amount[ ] to an admission that he [or she] had heard the statement which he [or she] repeated and not to an admission of the facts included in it”… . Here, defendant merely admitted that she had heard that the purported prior incident occurred in the manner stated by others, which is “in no sense an admission of any fact pertinent to the issue, but a mere admission of what [she] had heard without adoption or indorsement. Such evidence is clearly inadmissible” … . Christopher P. v Kathleen M.B., 2019 NY Slip Op 05894, Fourth Dept 7-31-19

 

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CONFLICTING TESTIMONY ABOUT WHETHER A CO-WORKER WAS HOLDING THE LADDER PLAINTIFF WAS USING PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION (SECOND DEPT).

The Second Department determined conflicting testimony concerning whether the ladder plaintiff was using was being held by a co-worker raised a question of fact in this Labor Law 240 (1) action:

… [T]he plaintiff submitted, among other things, a transcript of his deposition testimony and a transcript of a workers’ compensation board hearing, which included the testimony of the plaintiff and his coworker. The plaintiff testified at his deposition and at the hearing that the ladder shifted, causing him to lose his footing, and that nobody was holding the ladder at the time of the accident. His coworker gave a different account. The coworker testified that he was standing at the bottom of the ladder, holding it, when he felt the ladder jolt. Whether the ladder was being stabilized at the time of the accident presents a triable issue of fact … . Accordingly, “the plaintiff’s own submissions demonstrated that there are triable issues of fact as to how this accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide the plaintiff with proper protection proximately caused his injuries” … . Lozada v St. Patrick’s R C Church, 2019 NY Slip Op 05971, Second Dept 7-31-19

 

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