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ALTHOUGH PLAINTIFF WAS ENTITLED TO ATTORNEY’S FEES IN THE ORIGINAL SUIT ON THE NOTE, PLAINTIFF WAS NOT ENTITLED TO “FEES ON FEES” INCURRED DEFENDING DEFENDANTS’ APPEAL OF THE ORIGINAL JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff (Davidoff) was not entitled to an award of “fees on fees.” Defendants (the Hershfields) had appealed a judgment on a note which included an award of attorney’s fees to Davidoff. Davidoff then sued the Hershfields for the attorney’s fees incurred in defending the appeal, so-called “fees on fees.” The Second Department held that the language of the note did not support a “fees on fees” award:​

Davidoff commenced the instant action against the Hershfields, alleging that under the terms of the note, he was entitled to recover attorneys’ fees and costs in connection with the prior appeal and in bringing this action. …

… Supreme Court granted Davidoff’s cross-motion for summary judgment on the issue of liability … . The court determined that Davidoff was entitled to recover his attorneys’ fees in connection with the prior appeal and the instant action under the clear terms of the note. …

… Supreme Court should have denied Davidoff’s cross-motion for summary judgment on the issue of liability and should have granted the Hershfields’ motion pursuant to CPLR 3211(a) to dismiss the complaint. “The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance. If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence” … . “[A]n award of attorneys’ fees for the costs incurred in prosecuting a claim for an award of attorneys’ fees, so called ‘fees on fees,’ must be based upon a specific contractual provision or statute” … . “Consequently, where a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … .

… Davidoff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability for breach of contract. The note did not contain clear language expressly providing for the prevailing party to recover fees on fees or any reference to fees incurred to recover attorneys’ fees … . “Given the absence of unmistakably clear intent regarding the recovery of fees on fees, a right to recover those fees should not be implied” … . Davidoff v Hershfield, 2026 NY Slip Op 05931, Second Dept 10-14-26

Practice Point: To recover “fees on fees” the relevant contract must explicitly refer to fees incurred to recover attorney’s fees.

 

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THE PEOPLE’S AFFIRMATION IN SUPPORT OF THEIR MOTION TO PREVENT REMOVAL OF THE 17-YEAR-OLD’S CASE TO FAMILY COURT WAS NOT BASED ON THE PROSECUTOR’S PERSONAL KNOWLEDGE AND FAILED TO ALLEGE DEFENDANT’S SPECIFIC CONDUCT; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the People’s motion to prevent removal of the 17-year-old defendant’s case to Family Court should have been denied:

The court was … required to order removal of the action to Family Court unless the People successfully moved to prevent removal by establishing “that extraordinary circumstances exist that should prevent the transfer” … . Such a motion must “contain allegations of sworn fact based upon personal knowledge of the affiant, and shall indicate if the district attorney is requesting a hearing” … . Whether extraordinary circumstances exist to preclude removal to Family Court is a discretionary determination to be made by a court after consideration of “the totality of the facts and circumstances” … . A court exercising that discretion, however, should give consideration to the legislative intent that retention should be the exception and not the rule, i.e., that only “extremely rare and exceptional cases” involving “highly unusual and heinous facts” and “strong proof that the young person is not amenable [to] or would not benefit in any way from the heightened services in the family court” should be precluded from removal … .

Here, the People’s supporting affirmation relied heavily on the nature of the charges against defendant. … [E]ach count on which defendant was indicted also named 17 codefendants with no factual allegations that would permit parsing out defendant’s specific conduct in, for example, possessing either a controlled substance or a weapon. Although defendant was also alleged to have committed conspiracy in the second degree, he was not alleged to have committed any overt act in furtherance of that conspiracy. The prosecutor also failed to state that the few factual allegations that were included in the People’s supporting affirmation were based on the prosecutor’s “personal knowledge” …  and that conclusion is not a reasonable inference from the affirmation as a whole … . Instead, there is no indication from what specific sources any information was obtained, no supporting documentation was included with the motion, and no request for a hearing was made … . Although the People also argued that defendant’s previous arrests on similar charges weighed against removal, we note that “reoffense in and of itself” is not “extraordinary” (id. at 666 [internal quotation marks omitted]). The mere fact of a prior charge or charges does not provide evidence of defendant’s actual prior conduct, i.e., the specific “illegal or immoral acts,” if any, that might have led to those charges … , or whether defendant’s conduct constituted “escalating criminal behavior” … . The People’s motion therefore failed to contain sufficient “allegations of sworn fact based upon personal knowledge of [an] affiant” … on which the court could have relied in considering defendant’s actual role in the charged offenses in relation to his numerous codefendants, many of whom were adults … . People v Quashawn C., 2026 NY Slip Op 05892, Fourth Dept 10-9-26

Practice Point: Consult this decision for a detailed discussion of what a prosecutor must demonstrate to prevent removal of a 17-year-old defendant’s case to Family Court.

 

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PRESENTING A VIDEOTAPED INTERVIEW OF THE 17-YEAR-OLD VICTIM TO THE GRAND JURY IN THE ABSENCE OF A COURT ORDER VIOLATED THE CRIMINAL PROCEDURE LAW AND IMPAIRED THE INTEGRITY OF THE PROCEEDINGS; INDICTMENT DISMISSED WITHOUT PREJUDICE (FOURTH DEPT).

The Fourth Department, dismissing the indictment without prejudice, determined presenting a videotaped interview of the 17-year-old victim without a court order violated the Criminal Procedure Law and impaired the integrity of the proceedings:

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted rape in the first degree … . Defendant contends that County Court erred in denying that part of his omnibus motion seeking to dismiss the indictment on the ground that the grand jury proceeding failed “to conform to the requirements of [CPL] article [190] to such degree that the integrity thereof [was] impaired and prejudice to the defendant” resulted (CPL 210.35 [5]). We agree. The People correctly concede on appeal that the prosecutor improperly presented to the grand jury a videotaped interview of the approximately 17-year-old victim conducted by a social services caseworker in lieu of her live testimony without adhering to any of the requirements of CPL 190.32, including the obligation to seek a court order authorizing the videotaping of an examination of the victim as a “special witness” … . We agree with the parties that, under these circumstances, this error rendered the proceeding so irregular “that the integrity thereof [was] impaired and prejudice to . . . defendant may [have] result[ed]” (CPL 210.35 [5]; see CPL 210.20 [1] [c] …). People v Thompson, 2026 NY Slip Op 05874, Fourth Dept 10-9-26

Practice Point: Presenting a videotaped interview of a crime victim to a grand jury without a court order may impair the integrity of the proceedings requiring dismissal of the indictment.

 

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PLAINTIFF ATTORNEY’S DEFAMATION SUIT AGAINST A FORMER CLIENT WHO POSTED A NEGATIVE REVIEW WAS A “STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP);” PLAINTIFF DID NOT DEMONSTRATE THE SUIT HAD A SUBSTANTIAL BASIS IN LAW; THE POST WAS NONACTIONABLE OPINION (SECOND DEPT).

The Second Department, reversing Supreme Court, determines plaintiff-attorney’s defamation action against a former client who posted a negative review on the attorney’s website was a Strategic Lawsuit Against Public Participation (SLAPP). Plaintiff did not demonstrate the defamation action had a substantial basis in law because the posted review was nonactionable opinion:

… [T]he defendant satisfied her initial burden of establishing that this is an action involving public petition and participation, since it involves a claim based upon a communication in a public forum in connection with an issue of public interest [see Civil Rights Law 76-a]. * * *

The elements of a cause of action alleging defamation are (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se … . “Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action” … . Thus, an expression of pure opinion is not actionable, no matter how vituperative or unreasonable it may be … . Shapiro v Kushnick-Carr, 2026 NY Slip Op 05822, Second Dept 10-7-26

Practice Point: Here an attorney’s defamation action against a former client who posted a negative review was deemed a Strategic Lawsuit Against Public Participation (SLAPP) which was dismissed because it did not have a “substantial basis in law” (the post was nonactionable opinion).

 

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THIS OPINION DEMONSTRATES HOW COURTS DEAL WITH INTERPRETING THE LANGUAGE OF A CONTRACT WHERE DICTIONARY DEFINITIONS OF A KEY WORD, HERE THE WORD “COMMIT,” SUPPORT THE OPPOSING POSITIONS OF THE PARTIES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a detailed dissent, affirmed the lower court’s interpretation of the contract language and the related denial of plaintiff’s demand for prevailing-party attorney’s fees. The opinion turned on the definition of “commit” and is too detailed to fairly summarize here. The opinion should be consulted for insight into the interpretation of contract language where dictionary definitions support the opposing positions of the parties. Aurelius Capital Master Ltd. v Hertz Intl. Ltd., 2026 NY Slip Op 05369, First Dept 9-22-26

 

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IN THIS RENT RESET ARBITRATION, THE UMPIRE COMMUNICATED DIRECTLY WITH LANDLORD’S COUNSEL, CREATING THE APPEARANCE OF IMPROPRIETY; THE AWARD WAS THEREFORE VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined communications between an umpire and the landlord’s counsel created the appearance of impropriety requiring the vacation of the arbitration award in the rent reset proceeding:

… [T]he tenants exercised their second extension option under the lease … . The parties attempted to negotiate a new annual net rent, but upon reaching an impasse, they proceeded to arbitration before the American Arbitration Association (the AAA). That arbitration concluded with a one-week hearing that resulted in a final award largely in the landlord’s favor. * * *

… [T]he umpire created an appearance of impropriety when he directly communicated with the landlord’s counsel about a paid offer to serve as a neutral umpire in the [another arbitration] and did so without including the tenants in the conversation. Further, the umpire’s subsequent attempt to remedy this issue with a disclosure to the tenants failed to cure his misconduct. Indeed, the disclosure was incomplete as it was the landlord’s counsel, not the umpire, who informed the tenants of the direct communication with the landlord’s counsel. To compound matters, the umpire then attempted to bargain with the tenants — offering to trade his rejection of the offer in exchange for the cooperative withdrawing its recusal application. Ultimately, although he did eventually decline the offer, the umpire’s actions irreversibly and improperly implicated the “integrity of the process” … . Matter of 57th & 6th Ground LLC v Carnegie House Tenants Corp., 2026 NY Slip Op 05230, First Dept 9-3-26

Practice Point: In this arbitration of a rent reset, the umpire communicated directly with landlord’s counsel, creating the appearance of impropriety. The award was therefore vacated.

 

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PURSUANT TO CPL 30.30(2)(A), THE 90-DAY SPEEDY TRIAL CLOCK DOES NOT COUNT DAYS WHEN DEFENDANT IS NOT IN CUSTODY; HERE DEFENDANT WAS INITIALLY INCARCERATED, RELASED ON BAIL, AND THEN INCARCERATED AGAIN; THE DAYS DURING WHICH DEFENDANT WAS OUT ON BAIL ARE NOT PART OF THE 90-DAY CALCULATION (SECOND DEPT)

The Second Department, in a full-fledged opinion by Justice Duffy, in a matter of first impression, determined the 90-day clock for a speedy trial violation pursuant to CPL 30.30(2)(a) includes only the days during which defendant was incarcerated. Here defendant was initially incarcerated, then released on bail when his girlfriend posted bail, and then incarcerated again when his girlfriend withdrew as the surety. Defendant’s total number of incarcerated days before the People were ready for trial was 80 days:

Counsel for the defendant contended, among other things, that the 31 days between September 9, 2024, and October 11, 2024, when the defendant was no longer in custody as he had posted bail did not qualify under CPL 30.30(3) or (4) as an exception to the 90-day readiness requirement and that, therefore, 117 days were chargeable to the People for the purposes of CPL 30.30(2)(a). According to counsel, since the People were not ready for trial within 90 days after the defendant was first in custody, the defendant was entitled to be released under CPL 30.30(2)(a). Counsel argued that there was no statutory basis for two different CPL 30.30 clocks or for resetting the clock to exclude the 31 days when he was out on bail.

In opposition, the People contended that the 31 days when the defendant was out on bail should be excluded from the calculation of time under CPL 30.30(2)(a). They contended, in sum and substance, that, upon the defendant’s return to custody in this case, the 90-day time clock under CPL 30.30(2)(a) for the People to be ready for trial reset and began again. The People argued, in the alternative, that the 31 days that the defendant was out on bail should be excluded from the 90-day calculation of readiness under CPL 30.30(2)(a). Thus, they contended that the time chargeable to the People was 80 days, plus 4 days that the Supreme Court charged to the People with respect to a challenge the defendant had made to the validity of the People’s COC, but that, since only 84 days were chargeable under CPL 30.30(2)(a), the People had declared their readiness for trial within the statute’s permissible time frame. * * *

Supreme Court correctly determined that the defendant was not unlawfully detained in violation of CPL 30.30(2)(a). Under the appropriate calculation, here, 20 days was chargeable to the People before the defendant was released on bail from his original custody. Thereafter, an additional 60 days were chargeable to the People for the time period preceding the People’s filing of the COC and the SOR, during which the defendant was again incarcerated. Thus, for the purposes of CPL 30.30(2)(a), 80 days were chargeable to the People under CPL 30.30(2). People ex rel. Liles v Richards, 2026 NY Slip Op 05191, Second Dept 9-2-26

Practice Point: Pursuant to CPL 30.30(a)(2), the 90-day speedy trial clock does not include days when defendant is not in custody. Here defendant was initially incarcerated, released on bail, then incarcerated again. Because the days when defendant was out on bail are not part of the calculation, the speedy trial statute was not violated.

 

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THE COMPLAINT ALLEGING A VIOLATION OF JUDICIARY LAW 487 WAS DISMISSED; IT WAS ALLEGED AN ATTORNEY WAS AWARE HIS CLIENT’S SLIP AND FALL WAS STAGED; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, dismissing the complaint, over a two-justice dissent, determined the allegations of a Judiciary Law violation and fraud against an attorney were insufficient. It was alleged the attorney proceeded with a slip and fall action despite knowledge that the accident was staged:

Defendants/third-party plaintiffs failed to demonstrate “a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of” [attorney] Roytblat, or demonstrate that deliberate misrepresentations necessary to sustain a Judiciary Law § 487 claim were made to defendants and the court …”.

From the dissent:

The third-party complaint adequately meets the heightened pleading standard for a claim under Judiciary Law § 487. It alleges that video evidence appears to show Wilson Pena, a third-party defendant who concededly performs investigative services for Roytblat, deliberately creating the sidewalk defect at issue in the underlying personal injury action. Plaintiff also appears in the video to feign a trip-and-fall accident caused by the defect. The video evidence, links to which were included in the third party complaint, supports this allegation. The complaint further alleges that defendants’ attorney informed Roytblat … that the underlying personal injury claim that Roytblat was pursuing was fraudulent, and that video evidence existed showing fabrication of the sidewalk defect and staging of the accident. Despite having knowledge of the fraud, Roytblat continued to pursue the litigation over the following months and sought to discontinue the action only when informed that a news report concerning the fraud was about to air. Salas v 711-715 E 231st St., LLC, 2026 NY Slip Op 05064, First Dept 8-20-26

Practice Point: Here is a rare example of a Judiciary Law section 487 cause of action alleging an attorney proceeded with a slip and fall case knowing the accident was staged. Those allegations were deemed insufficient and the complaint was dismissed.

 

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HERE THE COMPLAINT WAS DISMISSED BECAUSE COUNSEL REFUSED TO PROCEED WITH THE TRIAL ON A PARTICULAR DAY; THAT SINGLE INCIDENT DID NOT AMOUNT TO “NEGLECT TO PROSECUTE;” THEREFORE PLAINTIFF WAS ENTITLED TO THE SIX-MONTH EXTENSION FOR FILING A NEW COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that the timely-commenced slip and fall case was not dismissed for failure to prosecute and the default did not constitute a determination on the merits. Therefore plaintiff’s filing of a new complaint within six months of the dismissal was timely:

When a prior action was timely commenced and dismissed on grounds other than voluntarily discontinuance, lack of personal jurisdiction, neglect to prosecute, or the entry of a final judgment on the merits, “CPLR 205(a) effectively tolls the running of a statutory period to permit refiling within six months” of the termination of the prior action … . Here, it is not disputed that the first action was timely commenced and that this action was commenced within six months of its termination.

… [T]he first action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). Where the dismissal of a prior action was for neglect to prosecute, in order to serve as a bar to the savings provision of CPLR 205(a), the court must have “set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the Supreme Court here set forth on the record that the plaintiff’s counsel had refused to proceed with the trial on one particular day, such conduct did not demonstrate a general “pattern” of delay in proceeding with the litigation so as to preclude application of CPLR 205(a) … .

Moreover, also contrary to the defendant’s contention, “dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits” … . Thus, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced. Rivera v Waterview Towers, Inc., 2026 NY Slip Op 05041, Second Dept 8-19-26

Practice Point: To constitute a dismissal for failure to prosecute, the judge must place on the record the specific conduct demonstrating a general pattern of delay. Here the complaint was dismissed because counsel refused to proceed to trial on a particular day. That was not a dismissal for “failure to prosecute” and the six-month extension for filing a new complaint was available.

 

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DEFENDANTS’ RELIANCE ON THEIR ATTORNEY’S STATEMENT HE WOULD HANDLE THE MATTER, THE FACT THAT THE SEVERELY INJURED INFANT PLAINTIFF, FOR WHOM DEFENDANTS WERE CARING, REQUIRED EXTRAORDINARY MEDICAL CARE AND FUNDRAISING, AND THE EXISTENCE OF A MERITORIOUS DEFENSE, WARRANTED GRANTING THE MOTION TO VACATE THE DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to vacate the default judgment (CPLR 5015(a)(1)) should have been granted. Defendants were under the impression their attorney was handling the case, they had a valid reason for failing to be more proactive in dealing with their attorney, and they had a meritorious affirmative defense:

Here, the defendants claimed that, upon receiving notice of the action in August 2023, they each contacted their family attorney, with whom the grandmother and the family had an 18-year relationship, and who was representing the mother in a child support proceeding against the plaintiff. The family attorney agreed to handle this matter. In a series of text messages to the defendants, the family attorney gave the impression that he was handling the matter and again indicated that such was the case when he met the defendants in person in reference to the child support proceeding. …

During these proceedings, the defendants were caring for the infant, who had suffered a brain injury and had been in the intensive care unit for approximately two months and required machines to help her breathe. The infant’s care involved hyberbaric and stem cell treatments from doctors in Louisiana and Arizona and fundraising to pay for her care.

The defendants each hired their current attorneys and promptly moved to vacate the March 2024 [default] order, alleging that the defendants’ reliance upon the representations of the family attorney constituted a reasonable excuse for their default and further alleging … an affirmative defense … .

… [U]nder the particular circumstances of this case, the defendants’ conduct in relying upon the representations of the family attorney did not constitute willful default or neglect … . Further, the defendants’ responsibilities in caring for the infant provided a reasonable explanation for their failure to be more proactive in their dealings with the family attorney and in the management of this action … . Cross v Lee, 2026 NY Slip Op 04924, Second Dept 8-12-26

Practice Point: Here defendants’ reliance on their attorney’s assurances he was handling the matter, the severity of the infant plaintiff’s injuries (the defendants were caring for the infant), and the existence of a meritorious defense, warranted granting defendants’ motion to vacate the default judgment (CPLR 5051(a)(1)).

 

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