Attorneys Archives - New York Appellate Digest

Appeals, Attorneys, Civil Procedure, Family Law

MOTHER’S ATTORNEY SHOULD NOT HAVE BEEN ALLOWED TO WITHDRAW WITHOUT NOTICE TO MOTHER WHO DID NOT ATTEND THE TERMINATION-OF-PARENTAL-RIGHTS HEARING; THE DEFAULT ORDER TERMINATING MOTHER’S PARENTAL RIGHTS WAS THEREFORE IMPROPER AND APPEAL IS NOT PRECLUDED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the default order terminating mother’s parental rights was improper because mother’s attorney was allowed to withdraw without notice to mother. Because the default order was improper, mother’s appeal is not precluded (default orders are not appealable):

In this proceeding pursuant to Social Services Law § 384-b,respondent mother contends that Family Court erred in allowing the mother’s attorney to withdraw as counsel and in proceeding with the hearing in the mother’s absence. We agree. ” ‘An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client . . . [, and a] purported withdrawal without proof that reasonable notice was given is ineffective’ ” … . Because there is no indication in the record that the mother’s attorney informed her that he was seeking to withdraw as counsel, the court should not have relieved him as counsel … . Although, generally, no appeal lies from an order entered on default (see CPLR 5511 …), here, the absence of evidence that the mother was put on notice of her attorney’s motion to withdraw renders the finding of default improper, and thus the mother’s appeal is not precluded … . We therefore reverse the order and remit the matter to Family Court for the assignment of new counsel and a new hearing … . Matter of Calvin L.W. (Dominique H.), 2021 NY Slip Op 04470, Fourth Dept 7-15-21

July 16, 2021/0 Comments/by Bruce Freeman

Attorneys, Contract Law

PLAINTIFF’S ATTORNEY’S EMAIL WAS AN ENFORCEABLE STIPULATION OF SETTLEMENT; PLAINTIFF’S SUBSEQUENT REFUSAL TO EXECUTE THE DOCUMENTS WAS A BREACH OF THE SETTLEMENT AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined an email sent by plaintiff’s attorney constituted an enforceable stipulation of settlement, despite the fact that plaintiff subsequently refused to execute the documents:

… [T]he requirements for a valid and enforceable settlement agreement are satisfied here. The email from plaintiff’s lawyer to defendant’s lawyer contained the only two material terms of the agreement, i.e., defendant’s payment of $32,500 to plaintiff in exchange for plaintiff’s release of defendant from further liability; the email plainly manifested the parties’ mutual accord, i.e., “[plaintiff] has informed me that he would like to accept the $32,500 settlement [offered by defendant]”; and the lawyer representing the party to be bound, i.e., plaintiff, explicitly typed his name at the end of the email in a manner akin to a hand-signed letter. Nothing more was required, and plaintiff’s “subsequent refusal to execute form releases and a stipulation of discontinuance did not invalidate the agreement” … . To the contrary, plaintiff’s subsequent refusal to execute the necessary releases and stipulation constituted a breach of the parties’ valid settlement agreement. The court thus erred in denying defendant’s cross motion to enforce the settlement agreement … . Field v Pet Haven, Inc., 2021 NY Slip Op 04450, Fourth Dept 7-16-21

July 16, 2021/0 Comments/by Bruce Freeman

Attorneys, Civil Procedure, Contract Law

A SETTLEMENT EMAIL WILL BE DEEMED SIGNED BY THE SENDING ATTORNEY WITHOUT RETYPING THE ATTORNEY’S NAME IN THE EMAIL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, overruling precedent, determined it is no longer necessary for an attorney to retype his or her name in an email stipulation of settlement. As long as the attorney’s name appears in the “prepopulated” area of the email it will be deemed to have been signed by the attorney:

We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. Since 1999, New York State has joined other states in allowing, in most contexts, parties to accept electronic signatures in place of “wet ink” signatures. Section 304(2) of New York’s Electronic Signatures and Records Act (ESRA) provides: “unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.” Moreover, the statutory definition of what constitutes an “electronic signature” is extremely broad under the ESRA, and includes any “electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record” (State Technology Law § 302[a]). We find that if an attorney hits “send” with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own, then it is unnecessary for them to type their own signature. Matter of Philadelphia Ins. Indem. Co. v Kendall, 2021 NY Slip Op 04284, First Dept 7-8-21

July 8, 2021/0 Comments/by Bruce Freeman

Attorneys

PLAINTIFFS’ ATTORNEY PROPERLY WITHDREW ON IRRECONCILABLE DIFFERENCES GROUNDS AND WAS ENTITLED TO 95% OF THE CONTINGENCY FEE DESPITE THE FAILURE TO SUBMIT TIME RECORDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney, Greenberg, properly withdrew from representing the plaintiffs on the ground of irreconcilable differences and was entitled to 95% of the contingency fee:

Greenberg demonstrated its entitlement to an award of 95% of the contingency fee. “In fixing an award of legal fees in quantum meruit, a court should consider evidence of the time and skill required in the case, the complexity of the matter, the attorney’s experience, ability, and reputation, the client’s benefit derived from the services, and the fee usually charged by attorneys for similar services” … . “‘Quantum meruit compensation is not limited to a calculation based on the numbers of hours worked multiplied by a reasonable hourly rate'” … . “The calculation of an award of legal fees as a portion of a contingent fee and based on an hourly rate are both properly fixed as quantum meruit determinations” … . Here, the record demonstrates, inter alia, the extensive work performed on the case by Greenberg over a period of 4½ years, the nature of the work performed, and the relative contributions made by Greenberg, entitling it to 95% of the contingency fee. While Greenberg failed to submit time records in support of the services it rendered, the value of its services could still be ascertained … . Tucker v Schwartzapfel Lawyers, P.C., 2021 NY Slip Op 04250, Second Dept 7-7-21

July 7, 2021/0 Comments/by Bruce Freeman

Attorneys, Contract Law, Legal Malpractice, Negligence

THE LEGAL MALPRACTICE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THERE WAS NO WRITTEN RETAINER AGREEMENT AND THEREFORE NO ATTORNEY-CLIENT RELATIONSHIP; THE COMPLAINT ALLEGED WORDS AND ACTIONS SUFFICIENT TO ASSERT THE EXISTENCE OF AN ATTORNEY-CLIENT RELATIONSHIP (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the legal malpractice action should not have been dismissed on the ground there was no retainer agreement and therefore no attorney-client relationship:

As to the legal malpractice cause of action, the … defendants contend that they had no attorney-client relationship with the plaintiff. An attorney-client relationship may arise even in the absence of a written retainer agreement, and a court must look to the words and actions of the parties to determine whether such a relationship exists … . Here, according the plaintiff the benefit of every favorable inference, she sufficiently alleged the existence of an attorney-client relationship … . Edelman v Berman, 2021 NY Slip Op 04120, Second Dept 6-30-21

June 30, 2021/0 Comments/by Bruce Freeman

Attorneys, Contract Law, Legal Malpractice, Negligence

THE BREACH OF CONTRACT CAUSE OF ACTION ALLEGING DEFENDANT ATTORNEY OVERBILLED SHOULD HAVE SURVIVED THE MOTION TO DISMISS DESPITE THE DISMISSAL OF THE LEGAL MALPRACTICE CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action for breach of contract alleging overbilling by defendant attorney (Drexel) should have survived the motion to dismiss, even though the legal malpractice cause of action was properly dismissed:

… [T]he Supreme Court should have denied that branch of [defendant-attorney] Drexel’s motion which was to dismiss so much of the first breach of contract cause of action as alleged that Drexel overbilled and charged the plaintiff for unnecessary legal services … . In opposition to that branch of Drexel’s motion which was to dismiss the first breach of contract cause of action, the plaintiff submitted an affidavit in which he averred that Drexel double-billed him for legal services in the sum of $291,000 and charged him at least $70,000 for unnecessary legal services. Contrary to Drexel’s contention, the plaintiff’s claim that Drexel overbilled and charged him for unnecessary legal services is distinct from a legal malpractice cause of action, as the plaintiff’s claim does not challenge the quality of Drexel’s work … . Dubon v Drexel, 2021 NY Slip Op 04119, Second Dept 6-30-21

June 30, 2021/0 Comments/by Bruce Freeman

Attorneys, Legal Malpractice, Negligence

THE ALLEGATION PLAINTIFF WOULD HAVE WON HIS WORKERS’ COMPENSATION HEARING HAD HIS ATTORNEY PRESENTED EYEWITNESS TESTIMONY WAS TOO SPECULATIVE TO SUPPORT A LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice action should have been dismissed. Plaintiff alleged he would have won his Workers’ Compensation hearing had his attorney presented the testimony of alleged eyewitnesses to his alleged fall from a ladder. The claim that, “but for” the attorney’s negligence, the plaintiff would have won the hearing was deemed too speculative:

“To establish causation in a legal malpractice action, ‘a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence'” … . “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” … .

… The plaintiff’s allegations that the Judge who denied his workers’ compensation claim and/or the Workers’ Compensation Board would have credited certain evidence, including the testimony of alleged eyewitnesses, if such evidence had been presented by the defendants were speculative and conclusory … . Denisco v Uysal, 2021 NY Slip Op 04118, Second Dept 6-30-21

June 30, 2021/0 Comments/by Bruce Freeman

Attorneys, Criminal Law, Judges

THE PROSECUTION’S REASONS FOR EXCLUDING AN AFRICAN-AMERICAN PROSPECTIVE JUROR WERE PRETEXTUAL; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, in a full-fledged opinion by Justice Renwick, determined the two explanations offered by the prosecution for excluding an African-American prospective juror were pretextual and should not have been accepted by the court:

On its face, the subject explanation, that an older gentleman with no children living with roommates would not able to appreciate a domestic violence situation, was not a valid trial-related concern at all. “To recognize the proffered explanation as valid and legitimate would, in our view, emasculate the constitutional protection recognized in Batson . . . and we refuse to do so” … . In fact, the prosecutor does not cite to a single case where this Court or any other court has found such a dubious explanation as a valid-race neutral reason. * * *

… [T]he second explanation was equally pretextual. In essence, the prosecution explained that it “selected people who had higher level jobs with all other things being equal,” as well as “[p]eople who indicated that they read.” According to the prosecutor, those types of jurors had more capacity to follow the instructions and understand the law. The prosecutor’s explanation is essentially an attempt to convince this Court with the preposterous proposition that only jurors with “higher level jobs” can effectively consider all the evidence in this case. While a juror’s employment status might be an appropriate race-neutral reason for exclusion, it should be related to the facts of the case … . However, if the employment of the potential juror has no connection with the specific facts of the case then an exclusion of such a juror could constitute discrimination … .

… [T]he prosecutor did not relate his concerns about the prospective juror’s employment to the factual circumstances of the case. People v Murray, 2021 NY Slip Op 04108, First Dept 6-29-21

June 29, 2021/0 Comments/by Bruce Freeman

Attorneys, Criminal Law

COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENDANT’S COMPLAINTS ABOUT DEFENSE COUNSEL, CONVICTION REVERSED; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, over a two-justice dissent, determined County Court should have conducted a minimal inquiry to address defendant’s complaints about defense counsel. The dissenters argued County Court had, in fact, conducted an adequate inquiry:

… [W]e conclude that defendant’s complaints were sufficiently serious to trigger the court’s duty to inquire … . Indeed, the complaints suggested on their face the possibility of a complete breakdown of communication with defense counsel, either owing to or exacerbated by defense counsel’s alleged unwillingness to respond to any of defendant’s repeated inquiries over nearly 12 months of representation; were evidenced by defendant’s apparent confusion over the status of the separate indictments; and were never refuted by defense counsel, who remained silent in response to defendant’s repeated in-court complaints … . Further, the court itself appeared to acknowledge that defendant’s complaints, if true, established that there was “a problem” with the representation.

Thus, the court had a duty to conduct a minimal inquiry, which the court failed to do … .

From the dissent:

… [T]his is not a case where the court “erred by failing to ask even a single question about the nature of the disagreement or its potential for resolution” … . Instead, because the court “repeatedly allowed defendant to air his concerns about defense counsel” and reasonably concluded after listening to those concerns that they “were insufficient to demonstrate good cause for substitution of counsel” … , we would affirm. People v Robinson, 2021 NY Slip Op 03939, Fourth Dept 6-17-21

June 17, 2021/by Bruce Freeman

Attorneys, Criminal Law

IN THE FACE OF DEFENDANT’S AND DEFENSE COUNSEL’S REQUEST FOR NEW COUNSEL, COUNTY COURT COMMITTED REVERSIBLE ERROR BY DENYING THE REQUEST WITHOUT MAKING A MINIMAL INQUIRY (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the court should have conducted in inquiry to evaluate defendant’s complaints about his attorney and his request for new counsel:

… [T]he court committed reversible error by failing to conduct an inquiry following defense counsel’s submission of a letter seeking to be relieved from the case and in light of defendant’s responses to that letter. In particular, the record establishes that defense counsel—prompted by defendant’s prior specific complaints about her failure to file motions, seek relevant evidence through discovery such as surveillance video of the incident, investigate specified witnesses, and engage in meaningful consultation and preparation—expressed a breakdown in trust and communication based on her interactions and appearances with defendant and sought to be relieved from representing defendant on the ground that she was unable to handle his case … . … “[D]efendant’s request on its face suggested a serious possibility of irreconcilable conflict with his lawyer, as evidenced by the [acknowledgment] of counsel that a complete breakdown of communication and lack of trust had developed in their relationship” … . “[W]here[, as here,] potential conflict is acknowledged by counsel’s admission of a breakdown in trust and communication, the trial court is obligated to make a minimal inquiry” … . People v Darwish, 2021 NY Slip Op 03936, Fourth Dept 6-17-21

June 17, 2021/by Bruce Freeman

MOTHER’S ATTORNEY SHOULD NOT HAVE BEEN ALLOWED TO WITHDRAW WITHOUT NOTICE TO MOTHER WHO DID NOT ATTEND THE TERMINATION-OF-PARENTAL-RIGHTS HEARING; THE DEFAULT ORDER TERMINATING MOTHER’S PARENTAL RIGHTS WAS THEREFORE IMPROPER AND APPEAL IS NOT PRECLUDED (FOURTH DEPT).

PLAINTIFF’S ATTORNEY’S EMAIL WAS AN ENFORCEABLE STIPULATION OF SETTLEMENT; PLAINTIFF’S SUBSEQUENT REFUSAL TO EXECUTE THE DOCUMENTS WAS A BREACH OF THE SETTLEMENT AGREEMENT (FOURTH DEPT).

A SETTLEMENT EMAIL WILL BE DEEMED SIGNED BY THE SENDING ATTORNEY WITHOUT RETYPING THE ATTORNEY’S NAME IN THE EMAIL (FIRST DEPT).

PLAINTIFFS’ ATTORNEY PROPERLY WITHDREW ON IRRECONCILABLE DIFFERENCES GROUNDS AND WAS ENTITLED TO 95% OF THE CONTINGENCY FEE DESPITE THE FAILURE TO SUBMIT TIME RECORDS (SECOND DEPT).

THE LEGAL MALPRACTICE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THERE WAS NO WRITTEN RETAINER AGREEMENT AND THEREFORE NO ATTORNEY-CLIENT RELATIONSHIP; THE COMPLAINT ALLEGED WORDS AND ACTIONS SUFFICIENT TO ASSERT THE EXISTENCE OF AN ATTORNEY-CLIENT RELATIONSHIP (SECOND DEPT).

THE BREACH OF CONTRACT CAUSE OF ACTION ALLEGING DEFENDANT ATTORNEY OVERBILLED SHOULD HAVE SURVIVED THE MOTION TO DISMISS DESPITE THE DISMISSAL OF THE LEGAL MALPRACTICE CAUSE OF ACTION (SECOND DEPT).

THE ALLEGATION PLAINTIFF WOULD HAVE WON HIS WORKERS’ COMPENSATION HEARING HAD HIS ATTORNEY PRESENTED EYEWITNESS TESTIMONY WAS TOO SPECULATIVE TO SUPPORT A LEGAL MALPRACTICE ACTION (SECOND DEPT).

THE PROSECUTION’S REASONS FOR EXCLUDING AN AFRICAN-AMERICAN PROSPECTIVE JUROR WERE PRETEXTUAL; NEW TRIAL ORDERED (FIRST DEPT).

COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENDANT’S COMPLAINTS ABOUT DEFENSE COUNSEL, CONVICTION REVERSED; TWO-JUSTICE DISSENT (FOURTH DEPT).

IN THE FACE OF DEFENDANT’S AND DEFENSE COUNSEL’S REQUEST FOR NEW COUNSEL, COUNTY COURT COMMITTED REVERSIBLE ERROR BY DENYING THE REQUEST WITHOUT MAKING A MINIMAL INQUIRY (FOURTH DEPT).

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