Attorneys – New York Appellate Digest

FAMILY COURT SHOULD NOT HAVE PROCEEDED WITH THE CUSTODY HEARING WITHOUT A SEARCHING INQUIRY INTO WHETHER RESPONDENT FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this custody proceeding should not have proceeded without a searching inquiry into whether father was making an intelligent waiver of his right to counsel:

At an appearance before the Family Court on the mother’s petition, the court advised the father of his right to counsel, and the father requested an adjournment to obtain an attorney. The court stated that it would email the father contact information for Legal Aid and scheduled a date for a virtual hearing on the petition. On the scheduled hearing date, the father appeared without counsel and the court did not inquire whether the father was waiving his right to counsel. The court commenced the hearing with the father proceeding pro se. By order … , the court, after the hearing, among other things, awarded the mother primary physical custody of the child, with parental access to the father. The father appeals.

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had the right to be represented by counsel … . “A party may waive that right and proceed without counsel provided he or she makes a knowing, voluntary, and intelligent waiver of the right to counsel” … . “[T]o determine whether a party has validly waived the right to counsel, a court must conduct a searching inquiry to ensure that the waiver has been made knowingly, voluntarily, and intelligently” … .

Here, the Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was knowingly, voluntarily, and intelligently made … . Matter of Mercado v Arzola, 2023 NY Slip Op 00321, Second Dept 1-25-23

Practice Point: Here father, the respondent in a custody proceeding, had a right to counsel. The judge should not have proceeded with the hearing without making a searching inquiry into whether father was knowingly, intelligently and voluntarily waiving his right to counsel.

January 25, 2023/0 Comments/by Bruce Freeman

Attorneys, Legal Malpractice, Negligence

PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT ATTORNEY NEGLIGENTLY FAILED TO PURSUE DAMAGES IN EXCESS OF THE POLICY LIMITS AGAINST THE TORTFEASOR PERSONALLY; DEFENDANT DID NOT DEMONSTRATE PLAINTIFF WOULD NOT HAVE PREVAILED AGAINST THE TORTFEASOR PERSONALLY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the legal malpractice action should not have been dismissed. It was alleged the defendant attorney, in this traffic accident case, failed to pursue damages in excess of the insurance-policy limits against the tortfeasor personally. Defendant did not demonstrate plaintiff would not have prevailed in an action against the tortfeasor personally:

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” … . “The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” … .

Here, the defendants failed to establish, prima facie, that the plaintiff had no actual or ascertainable damages. “The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice” … . The complaint alleged that the damages included the failure to pursue SUM benefits, as well as the failure to pursue recovery against the alleged tortfeasor. Since it was alleged … that the defendants’ legal malpractice prevented the plaintiff from obtaining a judgment against the alleged tortfeasor, the defendants had the burden of affirmatively demonstrating that the plaintiff would not have prevailed against the alleged tortfeasor or that the alleged tortfeasor did not have personal assets such that his motorist insurance policy limit that was recovered in the amount of $50,000, was the maximum judgment that could have been obtained from him … . The defendants failed to do so. Chicas v Cassar, 2023 NY Slip Op 00202, Second Dept 1-18-23

Practice Point: Defendant attorney in this legal malpractice case did not demonstrate plaintiff would not have prevailed in an action against the tortfeasor personally in the underlying traffic accident case. Plaintiff alleged defendant attorney negligently failed to seek damages over and above the policy limits from the tortfeasor. Therefore defendant’s motion for summary judgment should not have been granted.

January 18, 2023/0 Comments/by Bruce Freeman

Attorneys, Civil Procedure, Negligence

PLAINTIFFS’ COUNSEL’S GOOD-FAITH AFFIRMATION DID NOT INCLUDE DETAILS OF ANY EFFORTS TO RESOLVE THE DISCOVERY ISSUE AND WAS THEREFORE INADEQUATE; PLAINTIFFS’ MOTION TO COMPEL DEFENDANT TO SUBMIT TO A DEPOSITION UNDER THREAT OF PRECLUSION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion compelling defendant to appear for a deposition under threat of preclusion should not have been granted because plaintiffs’ counsel’s good-faith affirmation was inadequate:

Pursuant to 22 NYCRR 202.7(a) and (c), a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion, including the time, place, and nature of the consultation as well as the issues discussed. Here, the affirmation of good faith submitted by the plaintiffs’ counsel in support of their motion to compel disclosure and for other related relief failed to provide any detail of their efforts to resolve the issues. Therefore, the plaintiffs’ motion should have been denied … . Muchnik v Mendez Trucking, Inc., 2023 NY Slip Op 00100, Second Dept 1-11-23

Practice Pont: Here the affidavit plaintiffs’ counsel submitted did not detail the efforts made to resolve the discovery issue and was therefore inadequate. Therefore Supreme Court should not have granted plaintiffs’ motion to compel defendant’s deposition under threat of preclusion.

January 11, 2023/0 Comments/by Bruce Freeman

Attorneys, Family Law

ALTHOUGH DEFENDANT-WIFE’S ATTORNEY IN THIS DIVORCE ACTION MISSED A COUPLE OF THE 60-DAY BILLING PERIODS, THE ATTORNEY WAS IN SUBSTANTIAL COMPLIANCE WITH 22 NYCRR 1400.3(9) AND THE WIFE’S REQUEST FOR ATTORNEY’S FEES SHOULD NOT HAVE BEEN DENIED; $135,315.90 AWARDED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-wife’s attorney was in substantial compliance with the billing requirements of 22 NYCRR 1400.3(9) and the wife’s request for attorney’s fess in this divorce action should not have been denied:

… [T]he defendant’s attorney was in substantial compliance with 22 NYCRR 1400.3(9) … . Although the attorney for the defendant was dilatory in sending an initial invoice approximately 154 days after he was retained, the billable hours during that interval were itemized and accounted for, and the remainder of the invoices he sent all complied with the 60-day rule. Under the circumstances, the court should not have precluded the defendant from recovering an award of attorneys’ fees for failure to comply with 22 NYCRR 1400.3(9), and we conclude that the plaintiff should be responsible for the balance of the defendant’s attorneys’ fees and expenses, net of his prior payments, less $3,487.50 related to a duplicative motion for expenses, which amounts to $135,315.90. Spataro v Spataro, 2022 NY Slip Op 07470, Second Dept 12-28-22

Practice Point: 22 NYCRR 1400.3(9) requires attorneys in divorce proceeding to bill every 60 days. Here the attorney missed a couple of the 60-day billing periods but the client’s request for attorney’s fees should not have been denied on that ground. The appellate division awarded $135,315.90.

December 28, 2022/by Bruce Freeman

Animal Law, Attorneys, Civil Procedure, Landlord-Tenant, Negligence

THERE WERE QUESTIONS OF FACT WHETHER DEFENDANTS IN THIS DOG-BITE CASE, INCLUDING THE LANDLORD, WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES; THE PRE-DISCOVERY SUMMARY JUDGMENT MOTION WAS PREMATURE; THE ACTION WAS NOT FRIVOLOUS; THE DEFENDANTS WERE NOT ENTITLED TO ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this dog-bite case were not entitled to summary judgment, the action was not frivolous, and defendants were not entitled to attorney’s fees. In addition, the summary judgment motion, made before discovery, was deemed premature. The court found there were questions of fact whether defendants, including the landlord (held to an ordinary negligence standard) were aware of the dog’s vicious propensities. The relationships among the parties and the unsuccessful arguments made by defendants in support of summary judgment are too detailed to fairly summarize here:

… “[A]n owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal’s vicious propensities” … . “Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities” … . “Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]” … .

… “[A] landlord who, with knowledge that a prospective tenant has a vicious dog which will be kept on the premises, nonetheless leases the premises to such tenant without taking reasonable measures, by pertinent provisions in the lease or otherwise, to protect persons who might be on the premises from being attacked by the dog may be held liable [under a negligence standard] to a person who while thereafter on the premises is bitten by the dog” … . When, “during the term of the leasehold[,] a landlord becomes aware of the fact that [the] tenant is harboring an animal with vicious propensities, [the landlord] owes a duty to protect third persons from injury . . . if [the landlord] ‘had control of the premises or other capability to remove or confine the animal’ ” … . Michael P. v Dombroski, 2022 NY Slip Op 07318, Fourth Dept 12-23-22

Practice Point: A landlord who is aware of a dog’s vicious propensities can be held liable in a dog-bite case under a standard negligence theory.

December 23, 2022/by Bruce Freeman

Attorneys, Criminal Law

DEFENDANT’S COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A VALID MOTION TO WITHDRAW THE PLEA; THE MOTION WAS MISCHARACTERIZED AS A MOTION TO VACATE THE CONVICTION AND WAS NOT SUPPORTED BY NECESSARY AFFIDAVITS; DEFENDANT’S SENTENCE WAS VACATED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined defendant’s second counsel was ineffective in filing a motion to withdraw the plea:

Instead of filing a motion to withdraw defendant’s plea pursuant to CPL 220.60 (3), second counsel moved to vacate the judgment of conviction pursuant to CPL 440.10 (1) (h) based on generalized allegations, supported by his own “information and belief,” that first counsel had failed to properly investigate the facts, interview witnesses, assess the strength of the People’s case, file any motions or inform defendant of the consequences of pleading guilty. The People opposed the motion, noting that, inasmuch as defendant had yet to be sentenced , a motion pursuant to CPL 440.10 was premature. In reply, second counsel agreed that the motion was premature, presented the same allegations and asked that County Court nonetheless exercise its discretion to permit defendant to withdraw his plea, prompting the People to oppose the motion on the merits. By order entered September 14, 2017, County Court denied defendant’s CPL 440.10 motion to vacate the judgment of conviction as premature; alternatively, the court treated the motion as one to withdraw the plea and denied it, noting, among other things, that the motion was deficient as it was supported only by second counsel’s affirmation. * * *

Although second counsel’s mischaracterization of the subject motion does not, in and of itself, constitute ineffective assistance of counsel … , the motion was defective in other ways. Specifically, despite County Court granting second counsel two weeks to prepare a motion to withdraw defendant’s plea, he filed the motion in one day. In rushing his submission, second counsel failed to support the motion with affidavits from either defendant or first counsel, and he failed to incorporate any of the allegations that defendant made through the PSI; rather, second counsel opted to rely, exclusively, on his own “information and belief” and submitted a general, pro forma motion that was facially deficient. People v Williams, 2022 NY Slip Op 07265, Third Dept 12-22-22

Practice Point: Defense counsel was ineffective for failure to file a proper motion to withdraw the plea. The motion was mischaracterized as a motion to vacate the conviction and was not supported by necessary affidavits based upon first-hand knowledge.

December 22, 2022/by Bruce Freeman

Attorneys, Disciplinary Hearings (Inmates), Evidence, Freedom of Information Law (FOIL)

THE REASONS FOR THE DENIAL OF ATTORNEY’S FEES AFTER PETITIONER’S SUCCESSFUL FOIL REQUEST MERELY PARROTED THE STATUTORY LANGUAGE FOR THE LAW-ENFORCEMENT AND SAFETY EXEMPTIONS WITHOUT ANY SUPPORTING FACTS; THEREFORE ATTORNEY’S FEES SHOULD HAVE BEEN AWARDED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees associated with his ultimately successful FOIL request for the video of the incident which was the basis for the prison disciplinary proceedings. Attorney’s fees were denied on the ground that the respondent had a reasonable basis for denying the request for the video. However the respondent’s reasons for the denial merely parroted the relevant statutory language for the law-enforcement and safety exemptions, which was deemed insufficient:

In denying petitioner’s initial FOIL request and the subsequent administrative appeal, respondent merely quoted the language from the Public Officers Law. It gave no factual explanation or justification for its blanket denial to release the video footage. Although respondent provided an affirmation by its general counsel in this CPLR article 78 proceeding, the affirmation once again merely quoted the statutory language and failed to explain or demonstrate how the footage was compiled for any law enforcement purposes. In a conclusory and speculative fashion, the affirmation referenced some investigations and adjudications, but failed to provide any factual details or explanation of same. Moreover, the affirmation failed to detail how the release of the video footage would affect or interfere with said investigations and adjudications. “[R]espondent[], by merely parroting the statutory language and otherwise failing to provide any adequate sort of harm risked by disclosure, ha[s] failed to meet [its] burden of proving that disclosure of the records would interfere with a pending law enforcement investigation” … .

The affirmation was equally deficient with regard to the safety exemption (see Public Officers Law § 87 [2] [f]), in that it was neither particularized nor specific and failed to articulate an explanation as to how the release of the video footage could potentially endanger or impair the lives of correction officers or their families. Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 07277, Third Dept 12-22-22

Practice Point: In order to deny attorney’s fees after a successful FOIL request, the respondent must demonstrate a reasonable basis for the initial denial of the request. Merely parroting the statutory language for the law-enforcement and safety exemptions is not sufficient. The reasons must be fact-based.

December 22, 2022/by Bruce Freeman

Attorneys, Civil Procedure

DEFENDANT’S COUNSEL MISCALENDARED THE RETURN DATE FOR THE MOTION FOR SUMMARY JUDGMENT; THE MOTION TO VACATE THE JUDGMENT DUE TO LAW OFFICE FAILURE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate the judgment due to law office failure should have been granted. Plaintiff’s unopposed motion for summary judgment had been granted:

The law office failure of miscalendaring dates has been deemed a reasonable excuse … . Here, defendant’s counsel miscalendared the return date of plaintiff’s summary judgment motion for July 1, 2021 rather than June 1, 2021. Counsel explained that it is his regular practice to calendar motion dates once a return date is set; to review his calendar daily and on or about the first of each month; and that he had been working part-time at home with a less robust system compared to his office … . Accordingly, defendant proffered a reasonable excuse in the form of law office failure and should not be deprived of its day in court for counsel’s error … . First Am. Tit. Ins. Co. v Successful Abstract, LLC, 2022 NY Slip Op 07186, First Dept 12-20-22

Practice Point: Miscalendaring the return date for the motion for summary judgment was deemed a reasonable excuse for the default (law office failure).

December 20, 2022/by Bruce Freeman

Attorneys, Contract Law

THE ELECTRONIC LEGAL RESEARCH (LEXISNEXIS) CONTRACT SIGNED BY PLAINTIFF ATTORNEY WAS NOT PROCEDURALLY OR SUBSTANTIVELY UNCONSCIONABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the legal research contract (LexisNexis) signed by plaintiff-attorney was not procedurally or substantively unconscionable:

A determination of unconscionability generally requires a showing that the contract was both procedurally and substantively unconscionable when made, namely, some showing of “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party” … . Procedural unconscionability examines the circumstances at the time an agreement was entered into, including the commercial setting, whether deceptive or high-pressured tactics were employed, whether a party had a reasonable opportunity to understand the terms of the contract, which party drafted the contract, whether fine print was used in an agreement as to material terms, whether there was an alternative supply for the goods or services in question, the experience and education of the party claiming unconscionability, whether there was disparity in the bargaining power, and whether a contract of adhesion is at issue … . Whether a contract is procedurally unconscionable presents a question of law for the court although it is a fact-based determination … .

… Plaintiff is an attorney, who did not assert any mental deficiencies, but only alleged duress from defendants’ conduct in pursuing his signature on the 2020 Agreement. The urgency underlying plaintiff’s signing the 2020 Agreement, without reading it, apart from promised lower service rates, is unclear. Plaintiff has not demonstrated how there is inequality in the bargaining power in this instance. Plaintiff is on equal footing with the defendants in understanding contract law, as well as the consequences of signing a contract. Moreover, the terms in the 2020 Agreement were similar to the majority of the material terms in the parties’ 2019 Agreement, which plaintiff does not claim was unconscionable. Kaufman v Relx Inc., 2022 NY Slip Op 07192, First Dept 12-20-22

Practice Point: Here the plaintiff-attorney alleged the electronic legal research contract he signed with LexisNexis was unconscionable. The decision explains procedural and substantive unconscionability and held plaintiff, as an attorney, was on equal footing in negotiating the contract.

December 20, 2022/by Bruce Freeman

Attorneys, Civil Rights Law, Consumer Law, Defamation

DEFENDANT’S STATEMENT PLAINTIFFS WERE FACING SUSPENSION OF THEIR LICENSE TO PRACTICE LAW WAS NOT PROTECTED AS FAIR AND TRUE LEGAL REPORTING PURSUANT TO CIVIL RIGHTS LAW 74; THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION PER SE, DISPARAGEMENT AND VIOLATIONS OF THE LANHAM ACT AND GENERAL BUSINESS LAW 349 (FIRST DEPT).

The Fist Department, reversing Supreme Court, determined Civil Rights Law 74 did not protect the statements in defendant’s online ad claiming that plaintiffs were facing suspension of their license to practice law because the litigation referred to in the ad did not mention anything about plaintiffs’ law license. Civil Rights Law 74 protects only “fair and true” reports on judicial proceedings. The complaint stated causes of action for defamation per se, disparagement and violations of the Lanham Act and General Business Law 349:

Civil Rights Law § 74 did not apply to the challenged statements in defendant’s online ads that, in linking to a news article about pending litigation against plaintiffs by a former client in California, asserted that plaintiffs were facing suspension of their license to practice law. The news article did not mention that plaintiffs’ law license was at risk nor did the complaint against plaintiffs seek suspension of their law license. Accordingly, this statement was not shielded from liability as defendant failed to demonstrate that it was a “fair and true” report of a judicial proceeding … . …

Based on defendant’s allegedly false statement that plaintiffs were facing a suspension of their license, plaintiffs sufficiently pleaded a cause of action for defamation per se … . …

… [T]he factual allegations in the complaint were sufficient to sustain causes of action for disparagement, and violations under the federal Lanham Act and General Business Law § 349, at the pleading stage … . Luo & Assoc. v NYIS Law Firm, A.P.C., 2022 NY Slip Op 07154, First Dept 12-15-22

Practice Point: Civil Rights Law 74 protects only “fair and true” reports on judicial proceedings. Here the statements plaintiffs were facing the suspension of their license to practice law was not mentioned in the article referencing the judicial proceedings, so the statements were actionable as defamation per se, disparagement and violations of the Lanham Act and General Business Law 349.

December 15, 2022/by Bruce Freeman