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HERE AN ATTORNEY AND A CONTRACTOR WERE BUSINESS PARTNERS FOR YEARS AND RELIED ON EACH OTHER’S UNIQUE EXPERTISE; THERE WAS A QUESTION OF FACT WHETHER THE ATTORNEY BREACHED A FIDUCIARY DUTY BY TRANSFORMING THE PARTNERSHIP TO AN LLC WITHOUT INFORMING HIS FORMER PARTNER HE COULD NOT UNILATERALLY WITHDRAW FROM THE LLC; HERE THE CRITERIA FOR A STATUTORY DISSOLUTION OF THE LLC WERE MET (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined there were questions of fact whether defendant attorney, Mazza, breached his fiduciary duty owned to plaintiff when forming a Limited Liability Company (LLC), and further determined that the cause of action seeking a statutory dissolution of the LLC should have been granted. Defendant Mazza and plaintiff were partners in a successful business for many years. It was alleged that when the partnership was transformed to an LLC by Mazza, Mazza did not inform plaintiff he could not unilaterally withdraw from of dissolve the LLC:

There is no dispute that a fiduciary relationship existed between plaintiff and Mazza before the LLC was formed. The record indeed reflects that plaintiff trusted Mazza, an attorney, to act on his behalf in executive matters related to the partners’ real estate business, and that Mazza resultingly acquired influence over plaintiff … . The close relationship between the two men, which spanned more than three decades and included Mazza’s prior representation of plaintiff, supports this conclusion. And although plaintiff was a skilled and seemingly successful contractor, he admittedly had no knowledge of the legal (and practical) implications of converting a partnership to an LLC and accordingly relied on Mazza’s expertise in that area. * * *

Limited Liability Company Law § 702 provides that “the supreme court . . . may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.” Although an alleged “deadlock” between the members of a limited liability company will not necessarily render it impracticable for the company to carry on its business … , upon careful review of the record we find that it does in the case at bar. Amici v Mazza, 2025 NY Slip Op 00259, Third Dept 1-16-25

Practice Point: Consult this decision for a detailed discussion the criteria for a fiduciary duty owed by one party to another in a business relationship.

Practice Point: Consult this decision for a discussion of the criteria for a statutory dissolution of an LLC.

 

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AT SENTENCING THE PROSECUTOR REFERENCED EXCULPATORY STATEMENTS ATTRIBUTED TO DEFENDANT IN THE PRESENTENCE REPORT BUT, WHEN GIVEN THE OPPORTUNITY, NEITHER DEFENDANT NOR DEFENSE COUNSEL ADDRESSED THE ISSUE; NOTWITHSTANDING THE SILENCE OF THE DEFENSE THE JUDGE SHOULD HAVE INQUIRED INTO WHETHER THE GUILTY PLEA WAS KNOWING AND VOLUNTARY; THERE WAS NO NEED TO PRESERVE THE ERROR FOR APPEAL (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, in a full-fledged opinion by Judge Singh, determined the prosecutor’s mention of defendant’s (Dupree’s) exculpatory statements in the presentence report (PSR) required the judge to conduct an inquiry to ensure the guilty plea was knowing and voluntary, despite the defendant’s and defense counsel’s failure to address the statements at sentencing. Defendant and defense counsel were asked by the judge whether they wished to address the court and both said “no.” The issue need not be preserved and was properly raised on appeal:

Before sentencing, Dupree was interviewed by the Department of Probation. He made the following statement: “I admitted to shooting someone in the leg and back and the bullet went through his chest. I was fighting with him (stranger) and was defending myself. I was drinking at the club and someone slipped something in my drink and I was leaving the club to get home. He saw me staggering and wanted to rob me.” This statement was included in the presentence report (PSR).

At sentencing, Supreme Court asked whether the parties had any factual difficulties with the PSR. The prosecution replied, “I do have some factual difficulty relating to the defendant’s statement which I do not believe there was a valid self-defense claim. In fact, it is not a valid self-defense claim. . . . So I do take issue with that part of his statement as well as his claimed intoxication.” The court then asked, “and anything for the defense?” to which defense counsel replied, “no.” The court later asked whether the defense would like to be heard as to the promised sentence and, finally, asked Dupree himself if there was anything he would like to add. Neither Dupree nor his attorney addressed the statement in the PSR or the prosecution’s comment made in open court. * * *

The prosecution … argues that if Supreme Court had to inquire further, it did so by asking if defense counsel had anything to say. Yet the Court of Appeals has never held that a court may satisfy its obligation merely by allowing the defense to speak. Neither have we. Rather, the law is clear that “the trial court has a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary” … . People v Dupree, 2025 NY Slip Op 00199, First Dept 1-14-25

Practice Point: Here the prosecutor, at sentencing, expressed disagreement with exculpatory statements attributed to defendant in the presentence report but neither defendant nor defense counsel chose to address the issue when given the opportunity by the judge. The prosecutor’s reference to the statements triggered the need for an inquiry by the judge into whether the plea was knowing and voluntary, notwithstanding the silence of the defense. There was no need to preserve the issue for appeal.

 

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THE MAJORITY AFFIRMED WITHOUT DISCUSSION; JUDGE RIVERA IN A DISSENTING OPINION JOINED BY JUDGE WILSON WOULD HAVE REVERSED ON INEFFECTIVE ASSISTANCE GROUNDS (CT APP). ​

The Court of Appeals affirmed defendant’s burglary, assault, criminal contempt and resisting arrest convictions without discussion. Judges Rivera and Wilson would have reversed on ineffective assistance grounds:

From the dissent:

Counsel’s performance here was deficient in several respects and no reasonable defense strategy explains those failings. Before trial, counsel’s boilerplate motion referenced matters not at issue and lacked factual support in several respects, evincing counsel’s failure to properly investigate defendant’s case. Counsel also failed to show defendant video crucial to the prosecution’s case until shortly before trial—and even then, only after defendant complained to the court and the court ordered counsel to provide the video. During trial, counsel’s cross-examination of the victim resulted in admission of defendant’s criminal history, even though the trial court had denied the prosecution’s request to present that same history should defendant testify. Counsel then failed to object to an obviously-ambiguous jury instruction that might have resulted in a conviction on the top count. Despite these glaring errors, the majority concludes that defendant received constitutionally-acceptable representation. This outcome ignores our precedents and reduces the right to effective counsel to a platitude spoken to appease defendants. Our State Constitution’s guarantee of effective assistance ensures the integrity of the process and a fair trial—including for those defendants who appear guilty. Counsel’s many errors fell below that standard. I would therefore reverse and order a new trial. People v Howard, 2025 NY Slip Op 00184, CtApp 1-14-25

Practice Point: Although the majority affirmed the convictions without discussion, the two-judge dissenting opinion described “glaring errors” by defense counsel in detail.

 

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DEFENDANT’S MOTION TO VACATE HIS ATTEMPTED MURDER CONVICTIONS ON INEFFECTIVE-ASSISTANCE-OF-COUNSEL GROUNDS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Supreme Court’s grant of defendant’s motion to vacate his attempted murder convictions, determined defendant’s counsel (Lee) was not ineffective for failure to raise a medical-condition defense. Defendant argued he was incapable of running because of a gunshot wound. Several witnesses to the shooting testified the shooter ran after the victims:

It is unclear from the record as to whether Lee was informed of the existence of such a defense and that he ignored it without investigation. The record is devoid of any evidence, including an affidavit from counsel Brown [defendant’s prior attorney], as to whether Brown followed up on securing the medical records or whether he informed Lee of their existence and possible significance. While Lee testified that he had no recollection of the specifics of the case and therefore of being told of such a defense, he testified that it was his custom and practice to discuss and investigate possible defenses with his clients. Defendant also testified that he discussed various defenses with Lee, which Lee followed up on.

… [I]t is of note that defendant did not assert the defense of medical impossibility, and Lee’s alleged ineffectiveness in not presenting it, in defendant’s appeal of his conviction on October 16, 2001, his pro se CPL 440 motion dated October 6, 2004, or his habeas corpus petition dated February 22, 2006. While Supreme Court acknowledged that it was “troubling that the issue was not raised in the habeas corpus application,” it nevertheless dismissed the People’s argument … . The significance of defendant’s failure to raise the issue for over 19 years is two-fold. First, had defendant raised the issue earlier, Lee’s recollections as to what he did and did not do would certainly have been clearer. More importantly, Lee’s case files would be available for review and scrutiny. Despite Supreme Court’s recognition that “the loss of Lee’s file makes it impossible to prove that” Lee was in possession of the medical records or was aware of the records, it nevertheless improvidently concluded that Lee “conducted no investigation” and “did not look for an expert or for the treating doctor to consult about the injury and its consequences.”

Assuming Lee was informed of the existence of such a defense, defendant failed to overcome a “presumption” that the challenged action “might be considered sound trial strategy,” and demonstrate the “absence of strategic or other legitimate explanations” for the alleged shortcomings … . People v Brown, 2024 NY Slip Op 06550, First Dept 12-24-24

Practice Point: Although fact-specific, this opinion provides in-depth analysis of several issues raised in defendant’s motion to vacate his convictions, including ineffective assistance for failure to raise a defense, newly discovered evidence and actual innocence.

 

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THE DEATH OF A PARTY DIVESTS THE COURT OF JURISDICTION, STAYS THE PROCEEDINGS AND TERMINATES THE REPRESENTATION OF THE DECEASED’S ATTORNEY; ANY ORDERS ISSUED OR APPEALS TAKEN ARE VACATED OR DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that the death of a party divests the court of jurisdiction and terminates the representation of the attorney for the deceased person:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015 (a)[, and] any determination rendered without such substitution will generally be deemed a nullity” … . Here, the Supreme Court erred in considering the separate motions of the LMB defendants and Bear Stearns pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them because the motions were made after [plaintiff] Roe’s death and prior to any substitution of a personal representative of his estate (see id. § 1015 …). Accordingly, so much of the order … as granted the separate motions of the LMB defendants … to dismiss the complaint insofar as asserted against each of them must be vacated as a nullity (see CPLR 1015 …), and the appeal taken by the plaintiff Cheryl Lee from so much of the order … granting those branches of the LMB defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the first, third, and sixth causes of action must be dismissed.

Furthermore, the death of a party also terminates an attorney’s authority to act on behalf of the deceased party … . Thus, Roe’s former attorneys lacked the authority to file either the cross-motion or this appeal on his behalf. Accordingly the appeal purportedly taken on Roe’s behalf must be dismissed … . Lee v Leeds, Morelli & Brown, P.C., 2024 NY Slip Op 06624, Second Dept 12-24-24

Practice Point: The death of a party divests the court of jurisdiction, stays the proceedings until a substitution is made, and terminates the representation of the attorney for the deceased. Any orders issued or appeals taken after the party’s death and before substitution must be vacated or dismissed.​

 

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THE COMPLAINT AGAINST ATTORNEYS STATED A CAUSE OF ACTION FOR “DECEIT AND COLLUSION” PURSUANT TO JUDICIARY LAW 487 WHICH IS NOT THE SAME AS COMMON LAW FRAUD; THERE IS NO NEED TO SHOW A PARTY WAS MISLED BY THE ATTORNEY’S INTENTIONAL FALSE STATEMENTS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint stated a cause of action against an attorney (Moore) for “deceit and collusion” within the meaning of Judiciary Law 487:

Judiciary Law § 487 provides, in pertinent part, that “[a]n attorney or counselor who . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” In essence, the statute “imposes liability for the making of false statements with scienter” … . However, “Judiciary Law § 487 is not a codification of common-law fraud and therefore does not require a showing of justifiable reliance” … . Stated another way, “liability under the statute does not depend on whether the court or party to whom the statement is made is actually misled by the attorney’s intentional false statement” … ; i.e., the statute “focuses on the attorney’s intent to deceive, not the deceit’s success” … .

… [P]laintiffs alleged in their amended complaint that, from the time he became the client’s attorney, Moore engaged in a pattern of conduct whereby he advocated for the validity of a fraudulent deed, and oversaw the revision of fraudulent surveys based upon that deed. Plaintiffs alleged that Moore was in possession of documents and correspondence establishing that the deed was the fraudulent product of the client and defendant Aaron I. Mullen, an attorney who had previously represented the client, and that Moore failed to disclose those items despite receiving a valid discovery demand for them. Plaintiffs also alleged that Moore instituted a CPLR article 78 proceeding based upon the allegedly fraudulent deed and that he attached the deed to the petition. Plaintiffs further alleged that Moore participated in the client’s fraud, and did so intentionally and with knowledge of the client’s fraud, to plaintiffs’ detriment of more than $100,000 in legal fees and expenses. Ostrander v Mullen, 2024 NY Slip Op 06461, Fourth Dept 12-20-24

Practice Point: A Judiciary Law 487 action against an attorney focuses on the attorney’s intent to deceive, not whether the deceit was successful.

 

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PLAINTIFFS WERE PREJUDICED BY THE JURY SELECTION PROCESS WHICH DID NOT ALTERNATE THE PEREMPTORY CHALLENGES; THE FIRST QUESTION POSED TO THE JURY EFFECTIVELY PRECLUDED THE JURORS FROM CONSIDERING THE APPROPRIATE LEGAL ISSUE, I.E., WHETHER THE PLAINTIFF SUFFERED A “SERIOUS INJURY” WITHIN THE MEANING OF THE INSURANCE LAW (THIRD DEPT).

The Third Department, reversing the jury verdict and ordering a new trial in this Insurance Law 5102(d) “serious injury” case, determined the plaintiffs were prejudiced by the jury selection method used the trial judge, and the first question on the verdict sheet was improper because it effectively precluded the jury from considering the relevant question, whether plaintiff suffered a “serious injury:”

The court’s failure to alternate the peremptory challenge process … placed plaintiffs in the untenable position of having to utilize a peremptory challenge for a prospective juror that may not have been necessary had defendants been required to go first. This error compromised the fairness of the jury selection process.

Plaintiffs further contend that Supreme Court erred by including the first question on the verdict sheet — i.e., “[h]ave the plaintiffs . . . established that the incident . . . was a substantial factor in causing [Mormile’s] injuries?” We agree.  The specific issue for the jury to resolve was whether, as a result of the subject accident, Mormile sustained a “serious injury” as set forth in question 2 on the verdict sheet (did Mormile “sustain a significant limitation of use of a body function or system”); question 3 (did Mormile “sustain a permanent consequential limitation of use of a body organ or member”); question 4 (did Mormile “sustain a injury that resulted in a significant disfigurement”); and question 5 (did Mormile “suffer a medically determined injury or impairment of a non-permanent nature . . . that prevented him from performing all of the material acts that constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident?”).

The first question effectively only asks whether there was probable cause to establish that Mormile’s injuries resulted from the accident (see PJI 2:70). Having answered “No” to that global question, the jury did not answer questions 2 through 5. In effect, the jury did not resolve the appropriate legal issue, i.e., whether Mormile sustained a “serious injury” in the accident, as defined under each of the four distinct categories at issue … . Mormile v Marshall, 2024 NY Slip Op 06390, Third Dept 12-19-24

Practice Point: Failure to alternate the peremptory challenges compromised the fairness of the jury selection process.

Practice Point: The first question on the verdict sheet effectively precluded the jury from considering the appropriate legal issue, i.e., whether plaintiff suffered a “serious injury” within the meaning of the Insurance Law.

 

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THE JUDGE SHOULD NOT HAVE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING A COLLOQUY; THE SEARCH WARRANT DID NOT DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH OF DEFENDANT’S CELL PHONES; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction and ordering a new trial, determined (1) defendant’s request to represent himself should not have been summarily denied, and (2) the search warrant did not provide probable cause for the search of defendant’s cell phones:

A court may not summarily deny a defendant’s request to represent himself or herself, even if the court believes it to be in the defendant’s best interest to be represented by counsel … . Once defendant made his request, which was unequivocal and timely, County Court was required to conduct a colloquy to determine whether he was making a voluntary and intelligent waiver of his right to counsel … . * * *

While we defer to all reasonable inferences that the magistrate could have made in issuing the initial search warrant, we find the original affidavit did not establish the probable cause required to issue a search warrant for defendant’s cell phones. … [T]he warrant was supported by [investigator] Bruno’s affidavit, which stated that he believed the phones “may” contain digital data, including call histories, that would evidence the commission of criminal possession of a controlled substance in the third degree. However, the statute requires that a statement of reasonable cause based upon information and belief must also state “the sources of such information and the grounds of such belief” (CPL 690.35 [3] [c]), which was lacking here. Stated differently, even where there is probable cause to suspect the defendant of a crime, law enforcement may not search his or her cell phone unless they have information demonstrating that evidence is likely to be found there; some link sufficient to connect the two must be provided. Our review of the affidavit of probable cause in this case reveals no such link. People v Poulos, 2024 NY Slip Op 06239, Third Dept 12-12-24

Practice Point: A defendant’s request to represent himself should not be summarily denied. The judge should conduct a colloquy to determine whether defendant is making a voluntary and intelligent waiver of his right to counsel.​

Practice Point: The assertion in an affidavit that defendant’s cell phones “may” contain evidence of a drug offense does not provide probable cause for the search of the cell phones.

 

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AT THE SUPPRESSION HEARING THE PEOPLE FAILED TO PROVE THE LEGALITY OF THE TRAFFIC STOP, WHICH WAS BASED UPON DEFENDANT’S MAKING U-TURNS, AND THE SUPPRESSION MOTION WAS GRANTED; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO REARGUE THE MOTION AND PRESENT EVIDENCE DEMONSTRATING THE U-TURNS WERE, IN FACT, ILLEGAL (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the judge in this DWI prosecution should not have granted the People’s motion to reargue the suppression motion. The court had initially granted defendant’s motion to suppress because the People failed to prove U-turns made by the defendant were illegal. When the suppression motion was reargued, the People presented evidence the U-turns were, in fact, illegal and the court denied suppression:

… [I]f the People have had a full and fair opportunity to oppose suppression, and the suppression court has issued a ruling on the merits, the People may not have an additional “opportunity to shore up their evidentiary or legal position” … . Under the circumstances of this case, where the People were unprepared for the suppression hearing and sought to reargue the legal issue to remedy their lack of preparedness, the same principle should apply.

At a suppression hearing, the People bear the burden of showing the legality of the police conduct in the first instance … . Here, the court granted defendant’s motion for suppression because the People failed to demonstrate that defendant’s U-turns were illegal and therefore that the stop was lawful. Neither the Assistant District Attorney nor the arresting officer could identify any traffic law provision violated by defendant. Moreover, the People did not request a recess or adjournment to determine the statutory basis for the stop, nor did they request permission to furnish a post-hearing submission to identify any relevant provision of law. Instead, the People returned a month after the court granted suppression, offering a different legal theory that they had not raised at the original suppression hearing. On that new legal theory, the court changed course and denied defendant’s motion to suppress.

Of course, “[b]efore sentence is imposed, trial courts in criminal cases have the general inherent authority to correct their own mistakes” … , which may include granting leave to reargue. Although the People may be permitted to reargue the legal or factual issues of the suppression proceedings, allowing the suppression court to grant the People’s motion to reargue in these circumstances would run afoul of our “full and fair opportunity” principle and the policies of finality and judicial efficiency underlying it. People v Lawson, 2024 NY Slip Op 06238, CtApp 12-12-24

Practice Pont: As a general rule, the People should have only one chance to demonstrate the legality of a traffic stop in the context of a suppression hearing. Once a suppression motion is granted, the People should not be allowed to reopen the hearing to present evidence which could have been presented the first time around.

 

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PLAINTIFF PREVAILED IN THIS BREACH OF CONTRACT ACTION; HOWEVER, ABSENT A CONTRACT PROVISION, OR A STATUTE OR COURT RULE ALLOWING THE AWARD, PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff should not have been awarded attorney’s fees in this breach of contract action because the contract did not so provide:

“New York follows the general rule that attorney’s fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute, or court rule” … . “It is not uncommon, however, for parties to a contract to include a promise by one party to hold the other harmless for a particular loss or damage and counsel fees are but another form of damage which may be indemnified in this way” … . “When 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” … .

Here, the contract did not provide for the recovery of attorneys’ fees that resulted from the instant litigation, and the plaintiff failed to establish that a statute or court rule would entitle her to an award of attorneys’ fees. Wolf v Vestra SPV3, LLC, 2024 NY Slip Op 06232, Second Dept 12-11-24

Practice Point: The general rule in New York is, absent a contract provision or a statute or court rule allowing the award of attorney’s fees, the winner of a lawsuit cannot collect attorney’s fees from the loser.

 

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