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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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Landlord May Not Withhold Consent for Continued Operation of a Sidewalk Cafe Where the Lease Contemplated the Operation of the Cafe (Which Had Been in Operation for 50 Years) and Where the Implied Covenant of Good Faith and Fair Dealing Restricted the Landlord’s Ability to Withhold Consent/Erroneous Stipulated Fact Does Not Bind the Appellate Court

The First Department, in a full-fledged opinion by Justice Acosta, determined that a landlord could not terminate the tenant’s operation of a sidewalk cafe because the lease contemplated that use and the implied covenant of good faith and fair dealing restricted the landlord’s ability to deny consent to the continued operation of the cafe.  [The underlying ruling was made on stipulated facts which included the erroneous “fact” that the lease did not include the cafe as part of the leased premises.  The First Department noted that it is not bound on appeal by an incorrect stipulation of fact]:

The question presented on appeal is whether a landlord has an unfettered right to withhold or terminate its consent to a tenant’s operation of a sidewalk café, where the café has existed for at least 50 years and the lease contemplates the use of the sidewalk for that purpose. We hold that defendants may not withhold or terminate their consent, irrespective of whether they have a good-faith basis for doing so, because the lease expressly and unequivocally requires them to consent to plaintiff’s operation of the sidewalk café. In any event, we find that the implied covenant of good faith and fair dealing would otherwise restrict defendants’ ability to deny consent, and that they have failed to make a satisfactory showing of good faith in this case. * * *

Having determined that the lease allows plaintiff to use and occupy the sidewalk for the operation of a sidewalk café, it necessarily follows that defendants cannot withhold or revoke their consent to that use absent a good-faith basis. As the Court of Appeals has explained, “In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance. This covenant embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. While the duties of good faith and fair dealing do not imply obligations inconsistent with other terms of the contractual relationship, they do encompass any promises which a reasonable person in the position of the promisee would be justified in understanding were included” (511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 153 [2002] [internal citations and quotation marks omitted]).

Because the stipulated facts demonstrate that the sidewalk café existed at the time of the lease’s execution, plaintiff (through its assignor) was justified in understanding that the landlord promised to refrain from unreasonably withholding its consent to operate the sidewalk café. DMF Gramercy Enters Inc v Lillian Troy 1999 Trust, 2014 NY Slip Op 07110, 1st Dept 10-21-14

 

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Speedy Trial Clock Starts On the Day the People’s Application for Leave to Appeal to the Court of Appeals Is Denied, Notwithstanding Adjournments Granted in the Lower Court

The Court of Appeals determined that the speedy trial clock started running when the People's application for leave to appeal to the Court of Appeals was denied.  The time attributable to the lower court's adjournment while the application to the Court of Appeals was pending should not have been excluded from the speedy trial calculation:

The parties do not dispute that under CPL 30.30 (5) (a) a new criminal action commenced when a Judge of this Court denied the People leave to appeal from the Appellate Term's order. The People point to the fact that, under the Criminal Procedure Law, “[i]n computing the time within which the people must be ready for trial . . . a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: . . . appeals; . . . and the period during which such matters are under consideration by the court” must be excluded (CPL 30.30 [4] [a] [emphasis added]).

The People contend therefore that the period from May 10, 2010 to August 23, 2010 is excludable, relying on People v Vukel (263 AD2d 416 [1st Dept 1999], lv denied 94 NY2d 830 [1999]), which held that when a trial court orders an adjournment for control purposes because of the pendency of a defendant's application for leave to appeal to this Court, the entire period of the adjournment is excludable under CPL 30.30 (4) (a), as time resulting from the appeal. In Vukel, the Appellate Division rejected the argument that the People have “an obligation to advance the case to an earlier date upon receiving the certificate denying leave” (id. at 417).

The mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not in itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30 (4) (a). Otherwise, the People would be permitted to delay retrial for the duration of an adjournment in the trial court, no matter how lengthy, even after a Judge of our Court has denied leave to appeal, without consequence under CPL 30.30. Such a rule would be inconsistent with “the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” … . To the extent Vukel holds otherwise, it should not be followed. People v Wells, 2014 NY Slip Op 07012, CtApp 10-16-14

 

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Application of the Emergency Doctrine Presented a Mixed Question of Law and Fact which Could Not Be Reviewed by the Court of Appeals

The Court of Appeals determined that the application of the “emergency doctrine” to justify the warrantless search for and seizure of a weapon was a mixed question of law and fact which was not reviewable by the Court of Appeals.  The police responded to a call indicating the defendant had shot himself in the hand.  After the defendant had been frisked and while he his wound was being treated, police officers searched the backyard and found a weapon. The appellate division held that the search was justified by the officers' concern that the children in the house might come across the weapon.  The dissenting judge granted leave to appeal.  The Court of Appeals explained when a mixed question of law and fact is beyond that court's review:

Application of the “emergency doctrine” involves a mixed question of law and fact that is beyond this Court's review so long as there is record support for the findings of the courts below … . The Appellate Division majority and dissent both applied the test set forth in People v Mitchell (39 NY2d 173, 177-178 [1976], cert denied 426 US 953 [1976]) and reached conflicting conclusions as to when the emergency ceased. Because there is record support for the majority's conclusion that the search was lawful under the emergency exception, “'any further review is beyond this Court's jurisdiction'” … . People v Rossi, 2014 NY Slip Op 07006, CtApp 10-16-14

 

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Denial of Request that Judge Recuse Himself Must Be Addressed On Direct Appeal, Not Via an Article 78 Proceeding

The Third Department explained that the denial of a request that a judge recuse himself from presiding over a particular matter could not be addressed via an Article 78 proceeding, but rather could only be addressed on direct appeal:

A CPLR article 78 proceeding is not an appropriate vehicle for seeking review of issues that could be raised upon a direct appeal …, including the denial of a party’s request that a judge recuse himself or herself from presiding over a particular matter … . Rather, petitioners’ remedy — at that point in time — was to either reduce respondent’s bench decision on the recusal motion to a written order, serve a copy of that order and the corresponding notice of entry … and timely file an appeal therefrom … or, alternatively, await decision on the underlying summary judgment motions and, if aggrieved thereby, challenge the denial of their recusal motion upon a direct appeal from that order … . Matter of Concord Assoc LP v LaBuda, 2014 NY Slip Op 07052, 3rd Dept 10-16-14

 

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Waiver of Appeal Invalid—Failure to Afford Defendant His Right to Counsel Prior To and During Grand Jury Proceedings Required Dismissal of the Indictment—“Guilty-Plea” Forfeiture Rule Did Not Apply

The Third Department reversed defendant’s conviction by guilty plea, finding that the defendant’s waiver of appeal was invalid and the defendant had been deprived of his right to counsel with respect to whether to testify before the grand jury:

A trial court must ensure that a defendant’s waiver of the right to appeal is knowing, intelligent and voluntary … . After the People informed County Court that defendant agreed to waive his right to appeal, the court asked defendant whether that contention was accurate, to which defendant replied affirmatively. Thereafter, the court questioned defendant about his understanding of the terms of the plea bargain, but failed to confirm that he fully understood that his waiver of appeal was not automatic and that it was, in fact, “separate and distinct from those rights automatically forfeited upon a plea of guilty” … . Defendant signed a written waiver of appeal outside of court and County Court made no inquiry about “the circumstances surrounding the document’s execution” or confirm that defendant had been fully advised by counsel of the document’s significance … . As such, the appeal waiver was invalid … .

On the merits of defendant’s appeal, a criminal defendant’s right to receive the assistance of counsel attaches at arraignment “and entails the presence of counsel at each subsequent critical stage of the proceedings” … . Further, whether an accused individual facing felony charges should elect to appear before and present evidence to the grand jury or, as equally relevant here, object to the timeliness or reasonableness of the notice of grand jury proceedings, raises questions necessitating consultation with legal counsel … . The People correctly observe that, by pleading guilty, defendant forfeited his claim that he was denied the statutory right to testify before the grand jury … or, as defendant now argues on appeal, that he was denied the effective assistance of counsel where, as here, such assertion does not relate to the voluntariness of the plea or the integrity of the plea bargaining process … . Here, however, it is uncontroverted that defendant was denied the right to counsel prior to and during the grand jury proceedings, a critical stage of the instant criminal prosecution and, therefore, the forfeiture rule should not be applied … . Further, we observe that, while defendant’s motion to dismiss the indictment was based solely on the denial of his right pursuant to CPL 190.50 (5) (a) to testify before the grand jury, the “claimed deprivation of the [s]tate constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” before County Court … . Inasmuch as defendant was not afforded an opportunity to consult with counsel “and make an informed decision as to whether to appear before the [g]rand [j]ury”…, the resulting deprivation of defendant’s constitutional right to counsel requires the dismissal of the indictment … . People v Chappelle, 2014 NY Slip Op 07014, 3rd Dept 10-16-14

 

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The Language of the NYC Rent Control Law, Unlike the Language of the NYC Rent Stabilization Law, Does Not Allow “Luxury Deregulation” After the Expiration of J-51 Tax Benefits

The First Department, in a full-fledged opinion by Justice Sweeny, determined that the relevant provision of the NYC Rent and Rehabilitation Act (Rent Control Law or RCL) could not be interpreted to allow “luxury deregulation” of a rent-controlled apartment upon the expiration of “J-51” tax benefits.  “Luxury deregulation” refers to the removal of rent controls where the tenant can afford to pay market rates. The opinion focused upon the wording of the Rent Stabilization Law (RSL) versus the wording of the Rent Control Law (RCL) .  The RSL specifically allows the owner of an apartment to apply for luxury deregulation upon the expiration of the J-51 tax benefits, while the RCL (the controlling regulation here) does not.  The opinion includes a discussion of court-review of an administrative agency’s interpretation of a statute where specialized knowledge is not involved, and statutory-interpretation criteria:

At the outset, we note that the question before us turns purely on statutory interpretation. As such, we need not defer to the agency’s interpretation of the statutes in question, as we are not called upon “to interpret a statute where specialized knowledge and understanding of underlying operational practices or . . . an evaluation of factual data and inferences to be drawn therefrom’ is at stake” … . * * *

The owner argues that the rationale of [the RSL] should also apply to apartments subject to rent control, because, inter alia, to hold otherwise would be inconsistent with the purpose of the luxury deregulation law, which attempted to “restore some rationality to a system which provides the bulk of its benefits to high income tenants” … . We are not unmindful that the legislative history indicates a preference not to have people who can easily afford market value rental property inhabit rent-regulated housing. However, this history does not offer sufficient evidence to alter the unambiguous language of Administrative Code § 26-403(e)(2)(j). To do so would require us to import new language into the RCL and “give it a meaning not otherwise found therein” … . Indeed, “where the language of a statute is clear, there is little room to add to or take away from that meaning'” … . If the application of such long-established principles of statutory construction produces “an undesirable result, the problem is one to be addressed by the Legislature” … . Matter of RAM I LLC v NYS Div of Hous & Community Renewal, 2014 NY Slip Op 06784, 1st Dept 10-7-14

 

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“Door-Opening Rule” Applied to Allow Otherwise Inadmissible Evidence/Jury-Note Error Not Preserved

The Fourth Department determined evidence of a phone conversation which was otherwise inadmissible was properly admitted to rebut a “misleading impression” created by the defendant under the “door-opening rule.”  In addition the court held that the failure to notify defense counsel of the contents of a jury note, although error, was not preserved for appeal:

Under the “door-opening” rule …, otherwise inadmissible evidence, such as the telephone conversation at issue here, may be admitted in evidence for the purpose of rebutting a “misleading impression” created by the defendant … . Here, defendant was attempting to evoke the jury’s sympathy by testifying about her remorse and anguish over the victim’s death. Specifically, defendant testified that, upon learning of the victim’s death, she “started flipping out,” “bouncing my head off walls,” “screaming,” and “going nuts.” She further testified that she “didn’t want to live,” “refused to eat,” and was “on suicide watch.” We conclude that the court properly permitted the People to introduce the telephone conversation in evidence to rebut defendant’s testimony of remorse and anguish … . * * *

Defendant contends in the supplemental brief submitted by appellate counsel with leave of this Court that the court failed to apprise her of a jury note and that such a failure constitutes a mode of proceedings error requiring reversal of the judgment, even if unpreserved … . We reject defendant’s contention that preservation was not required. Here … “the record does not indicate that the court gave defense counsel notice of the contents of the note outside the presence of the jury, but it establishes that the court read the note verbatim before the jury, defense counsel, and defendant. Defense counsel raised no objection” … . Under such circumstances, defendant was required to preserve the alleged error by objection … . We decline to exercise our power to address defendant’s contention as a matter of discretion in the interest of justice … . People v Stoutenger, 2014 NY Slip Op 06688, 4th Dept 10-3-14

 

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Hearing Ordered to Reconstruct Contents of Missing Recording of 911 Call

The Fourth Department would not reverse defendant’s conviction due to the post-trial loss of the recording of a 911 call, the contents of which were important on appeal.  Instead, the court ordered a reconstruction hearing to create a record of the contents of the call.  People v Thomas, 2014 NY Slip Op 06710, 10-3-14

 

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“Substantial Evidence” Standard of Court Review Explained

The Second Department explained the “substantial evidence” standard of court review of an administrative agency’s determination after a disciplinary hearing:

Substantial evidence “is related to the charge or controversy and involves a weighing of the quality and quantity of the proof”; the term “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . “Where there is conflicting evidence or different inferences may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . Matter of Sullivan v County of Rockland, 2014 NY Slip Op 06593, 2nd Dept 10-1-14

 

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