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NYC Taxi and Limousine Commission (TLC) Had the Authority to Enter a 10-Year Exclusive Agreement with Nissan for the Production of the “Taxi of Tomorrow (T o T),” NYC’s Official Taxicab

The Court of Appeals determined the NYC Taxi and Limousine Commission (TLC) did not exceed the authority granted the commission by the City Council when it entered a 10-year exclusive agreement with Nissan to provide the “Taxi of Tomorrow (T o T),” New York City’s official taxicab:

A legislature may enact a general statutory provision and delegate power to an agency to fill in the details, as long as reasonable safeguards and guidelines are provided to the agency (see Boreali v Axelrod, 71 NY2d 1, 10 [1987]). As a creation of a legislative body, the TLC possesses the powers expressly conferred by the City Council, as well as those “required by necessary implication” … . “[A]n agency can adopt regulations that go beyond the text of [its enabling] legislation, provided they are not inconsistent with the statutory language or its underlying purposes” … . The question before us is whether the authority granted to the TLC by the City Council included the power to enact the ToT rules, or whether the agency has exceeded its authority and acted in a manner not contemplated by the legislative body … .  * * *

The City Council granted the TLC extremely broad authority to enact rules, including the ToT rules. The TLC was created with the stated purposes of “continuance, further development and improvement of taxi and limousine service in the city of New York” (NY City Charter § 2300). The City Charter provides that the TLC is authorized, “consonant with the promotion and protection of the public comfort and convenience[,] to adopt and establish an overall public transportation policy governing taxi . . . services as it relates to the overall public transportation network of the city; to establish . . . standards for equipment safety and design; . . . and to set standards and criteria for the licensing of vehicles” used in taxi service (NY City Charter § 2300 [emphasis added]). * * *

In granting the TLC this broad authority, the City Charter includes guidelines for the TLC to consider, such as “safety, and design, comfort, convenience, noise and air pollution control and efficiency in the operation of vehicles” (NY City Charter § 2303 [b] [6]). Although the TLC has generally applied the “specs method” when promulgating rules about the design of taxis, it points to a major shortcoming of that method — the situation where no available model meets the specs in the rules as, for example, when Ford discontinued the Crown Victoria … . The TLC determined that “[t]he most obvious alternative to vehicle specifications [is the] competitive selection of taxicab vehicle models,” as embodied in the ToT project … . This new method was intended to be a more efficient way to reach the same result and, in our view, falls within the broad authority granted to the TLC. Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., 2015 NY Slip Op 05514, CtApp 6-25-15

 

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In the Face of Defendant’s Claims Defense Counsel Did Not Adequately Represent Him, Counsel’s Answering the Judge’s Questions About Defendant’s Allegations (Which Were Rejected by the Court) Did Not Place Defense Counsel in a Position Adverse to the Defendant’s

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined that defense counsel’s answering the judge’s questions about his performance did not place the attorney in a position adverse to his client’s.  The client, prior to trial, sought the appointment of new counsel by filing a form (“Affidavit in Support of Motion for Reassignment of Counsel”) circling every reason for the appointment of new counsel listed on the form, including the failure to discuss strategy, the failure to seek discovery, the failure to contest identification evidence, and the failure to communicate with the defendant. The form did not reach the judge until after the defendant’s trial and conviction. The defendant did not mention the motion or his concerns during the trial.  The judge, based on his observations during the trial, determined many of the circled claims on the form were not true. The judge asked the attorney about what he had done prior to trial and the attorney explained what he had done.  In so doing, the attorney did not take a position adverse to the defendant’s:

“The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant’s option” … . A defendant may be entitled to new counsel, however, “upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel” (id. [internal quotation marks omitted]). Here, defendant claims that he was entitled to new defense counsel because counsel’s responses to the allegations of ineffectiveness created an actual conflict of interest.

Although an attorney is not obligated to comment on a client’s pro se motions or arguments, he may address allegations of ineffectiveness “when asked to by the court” and “should be afforded the opportunity to explain his performance” … .

We have held that counsel takes a position adverse to his client when stating that the defendant’s motion lacks merit …, or that the defendant, who is challenging the voluntariness of his guilty plea, “made a knowing plea . . . [that] was in his best interest” … . Conversely, we have held that counsel does not create an actual conflict merely by “outlin[ing] his efforts on his client’s behalf” … and “defend[ing] his performance” … .

Applying these settled principles to the facts in this case, we conclude that defense counsel’s comments in response to the judge’s questions did not establish an actual conflict of interest. Defense counsel did not suggest that his client’s claims lacked merit. Rather, he informed the judge when he met with defendant and for how long, what they discussed, what the defense strategy was at trial and what discovery he gave or did not give to defendant. Thus, he never strayed beyond a factual explanation of his efforts on his client’s behalf.  People v Washington, 2015 NY Slip Op 05511, CtApp 6-25-15

 

Frivolous Lawsuit Warranted Sanctions and the Award of Attorney’s Fees

The First Department determined sanctions and the award of attorney’s fees were appropriate for a frivolous lawsuit brought by an attorney who had represented himself in a related divorce proceeding.  The lawsuit sought $27,000 allegedly loaned to the defendant-wife by plaintiff. However, the $27,000 claim was made in the divorce proceedings and, although the lower court did not directly rule on the loan, the claim was effectively rejected by the court in a “catch-all” provision denying all relief not specifically addressed:

A court may, in its discretion, award to any party costs in the form of reimbursement for expenses reasonably incurred and reasonable attorneys’ fees resulting from “frivolous conduct,” which includes: (1) conduct completely without merit in law, which cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) conduct undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; and (3) the assertion of material factual statements that are false (22 NYCRR 130-1.1[a], [c][3]). The court may also award financial sanctions on the same grounds (22 NYCRR 130-1.1[b]).

In determining whether conduct is frivolous, the court shall consider “the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel” (22 NYCRR 130-1.1[c]).

Here, the husband made a claim in the divorce action for repayment of the $27,000 “loan,” and Supreme Court rejected it. He then failed to challenge that finding on direct appeal. Any argument that Supreme Court did not actually decide the issue of the “loan” because it did not specifically address it is rejected, since the court included the “catch-all” language that any claims not discussed were denied. In any event, the husband could have sought clarification from the court if he felt that the claim related to the “loan” had escaped the court’s attention. Indeed, it would have behooved him to do so, as it is well settled that “res judicata bars a subsequent plenary action concerning an issue of marital property which could have been, but was not, raised in the prior matrimonial action” … . Again, we are required to consider “the circumstances under which the conduct took place” when reviewing a sanctions motion (22 NYCRR 130-1.1[c]). Here, the circumstances are that the husband, an experienced divorce lawyer, ignored a long-standing principle of matrimonial jurisprudence. Thus, his decision to commence an action that he knew, or should have known, was futile from its inception, weighs heavily in favor of a finding that his conduct was intended solely to harass the wife.  Borstein v Henneberry, 2015 NY Slip Op 05390, 1st Dept 6-23-15

 

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Defendant’s Waiver of 12-Person Jury Upheld

The First Department determined defendant had validly waived his right to be tried in front of a 12-person jury. During defendant’s trial, after the court had been closed for several days due to Hurricane Sandy, one of the jurors informed the court he was leaving town. The defendant, against the advice of his lawyer, was insistent that he wanted the trial to continue with 11 jurors:

The court noted on the record that the excused juror had informed the court that he had a flight scheduled for that day, and that the court had called the juror that morning but could not reach him. Defense counsel objected to the court’s discharge of the juror without first consulting with counsel. Counsel informed the court that, against her advice, defendant wanted deliberations to continue with the remaining 11 jurors. Defense counsel stated that she had told defendant “a number of times that I do not think we should go forward with 11,” but defendant was “extremely insistent,” was “tired of this process,” and did “not want to retry the case.” The court confirmed with defendant on the record that he wanted to continue with 11 jurors, and defendant executed a written waiver of a 12-person jury. Defense counsel also signed the written waiver.

Although the court should have given defense counsel an opportunity to be heard before it excused the juror (see CPL 270.35[2][b]), defendant entered a knowing, voluntary, and intelligent waiver of his right to a 12-person jury … . Defense counsel stated that she had discussed with defendant the possibility of a retrial, and that defendant rejected that option … . The court questioned defendant on the record and confirmed that he had discussed his decision with counsel, and that he understood but rejected counsel’s advice. As defense counsel stated, defendant was insistent that deliberations continue with an 11-person jury. Defendant “must accept the decision he knowingly, voluntarily and intelligently made” … . People v Perry, 2015 NY Slip Op 05394, 1st Dept 6-23-15

 

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Absolute Privilege Attaches to Statement Made by a Nonparticipant in the Litigation Which Is Republished by an Attorney In the Course of the Litigation

The Third Department determined an action based upon the republication of an allegedly defamatory statement (made by a nonparticipant in the litigation) by an assistant attorney general in the course of a medical malpractice case was precluded by the absolute privilege afforded attorneys in matters related to litigation:

Statements made by parties and their counsel in the context of a legal action or proceeding are protected by an absolute privilege so long as, “by any view or under any circumstances, they are pertinent to the litigation” … . Allowing such statements or writings to form the basis of an action for defamation “would be an impediment to justice, because it would hamper the search for truth and prevent making inquiries with that freedom and boldness which the welfare of society requires” … . A liberal standard guides the inquiry of what is pertinent … , and encompasses “any statement that may possibly or plausibly be relevant or pertinent, with the barest rationality” … . Moreover, the burden rests with claimant “to conclusively, and as a matter of law, establish the impertinency and the irrelevance of the statement” … .

Here, claimant asserts that the memorandum was prepared by a nonparticipant to the litigation which removes it from the protection of the absolute privilege; however, this contention ignores that claimant’s action is grounded in the republication of the alleged defamatory statement by the AAG, whose statements are afforded the protection … . It is evident that the AAG turned over the memorandum after the malpractice litigation had been commenced in federal court … and, further, the statements in the memorandum were clearly pertinent to the malpractice litigation, as they concerned allegations that were relevant to the treatment of the inmate … . McPhillips v State of New York, 2015 NY Slip Op 05242, 3rd Dept 6-18-15

 

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Lien for Attorney’s Fees (Re: Workers’ Compensation Award) Can Be Satisfied Before Reimbursing Municipality for Benefits Paid by the Municipality to the Injured Corrections Officer Pursuant the General Municipal Law

The Third Department determined that a lien for attorney’s fees could be attached to Workers’ Compensation benefits prior to reimbursing a municipality for benefits paid to the municipal employee pursuant to the General Municipal Law. Claimant corrections officer was injured on the job. Under General Municipal Law 207-c municipal employers are required to pay full wages to corrections officers injured in the performance of their duties.  Workers’ Compensation Law 30 (3) provides that the amount of the payments made under the General Municipal Law shall be credited against any award of compensation pursuant to the Workers Compensation Law. The municipality argued it was entitled to the entire amount paid to the employee and the amount should not be reduced by the attorney’s fees (a lien on the Workers’ Compensation award).  The Third Department disagreed:

General Municipal Law § 207-c requires municipal employers to pay full wages to correction officers who are injured in the performance of their duties. Workers’ Compensation Law § 30 (3) provides that the amount of such payments “shall be credited against any award of compensation” that may also be made to such an officer. The employer contends that the mandatory language of the Workers’ Compensation Law provision entitles employers to full credit for such payments and, thus, precludes the attachment of a lien for counsel fees. However, Workers’ Compensation Law § 24 likewise uses mandatory language in providing that, when approved by the Board, counsel fees “shall become a lien upon the compensation awarded . . . [and] shall be paid therefrom only in the manner fixed by the [B]oard” (emphasis added). The lien attaches when the compensation is awarded “and takes precedence over the employer’s right to reimbursement of funds previously paid to the claimant-employee” … . The purpose of enacting Workers’ Compensation Law § 30 (3) was not to preclude counsel fees, but “to avoid duplicate benefits to an injured [officer], the combined total of which might exceed the salary [the officer] would have received for the period” if the injury had not occurred … . Workers’ Compensation Law § 30 (3) must be harmoniously interpreted with the Workers’ Compensation Law as a whole and with General Municipal Law § 207-c … . We find nothing in the statutory language indicating a legislative intent to treat employees who receive benefits under General Municipal Law § 207-c differently from other injured employees by departing from the statutory scheme for payment of counsel fees set forth in Workers’ Compensation Law § 24. Matter of McCabe v Albany County Sheriff’s Dept., 2015 NY Slip Op 05236, 3rd Dept 6-18-15

 

Supreme Court Should Have Held a Hearing to Determine Whether Attorneys Were Entitled to the Fees Sought by Them—Plaintiff Had Already Paid the Attorneys Nearly the Amount the Case Ultimately Settled For—the Attorneys, Who Had Been Discharged Without Cause, Sought 40% of the Settlement Pursuant to a Contingency Agreement Which Was Entered In Anticipation of Trial

The Second Department reversed Supreme Court and ordered a hearing to determine whether respondents-attorneys had received all the fees they were entitled to.  The attorneys had been paid nearly $54,000 by the plaintiff.  Then plaintiff then entered a 40% contingency arrangement prior to trial. The case ultimately settled for $57,500 and plaintiff discharged the attorneys:

An attorney of record who is discharged without cause possesses a charging lien pursuant to Judiciary Law § 475 which constitutes an equitable ownership of the cause of action an attaches to any recovery … . Additionally, “[i]f a client discharges an attorney without cause, the attorney possesses a common-law retaining lien on the client’s file in his or her possession and is entitled to recover compensation from the client measured by the fair and reasonable value of the services rendered, regardless of whether that amount is more or less than the amount provided in the contract or retainer agreement” … . The retaining lien “is extinguished only when the court, which controls the functioning of the lien, orders turnover of the file in exchange for payment of the lawyer’s fee or the posting of an adequate security therefor following a hearing” … . “Absent exigent circumstances, the attorney may generally not be compelled to surrender the papers and files until an expedited hearing has been held to ascertain the amount of the fees or reimbursement to which he or she may be entitled” … . A court may summarily determine that an attorney is charging excessive fees, limit those fees, and discharge the attorney’s liens … .

Here, the Supreme Court erred in denying the plaintiff’s cross motion without holding a hearing to ascertain the amount of fees or reimbursement to which the respondents may be entitled … . The gravamen of the plaintiff’s cross motion was that the charging lien and retaining lien should be vacated because he had already paid the respondents a total of $53,763.99 in legal fees and he did not owe the respondents any additional legal fees. In contrast, the respondents sought to collect a contingency fee of $23,000, which was the full 40% of the $57,500 recovery, without crediting the plaintiff with the $5,000 which should have been credited against the contingency fee pursuant to their agreement. Thus, it appears that the respondents were seeking excessive fees.

Under these circumstances, we reverse the order insofar as appealed from and remit the matter to the Supreme Court, Westchester County, for a hearing on the issue of whether the respondents have received all of the fees owed to them for the reasonable value of their services … . D’Ambrosio v Racanelli, 2015 NY Slip Op 05149, 2nd Dept 6-17-15

 

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Attorney’s Telling the Court There Was No Reason Sentencing Should Not Go Forward in the Face of Defendant’s Pro Se Motion to Withdraw His Guilty Plea Adversely Affected Defendant’s Right to Counsel

The Second Department ordered that a hearing be held on defendant’s motion to withdraw his guilty plea and that another lawyer be assigned. When defendant made his pro se motion to withdraw his plea, his attorney told the court there was no reason sentencing should not go forward. The attorney’s taking a position adverse to the defendant’s adversely affected the defendant’s right to counsel:

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to his … . The County Court should have assigned a different attorney to represent the defendant before it determined the defendant’s motion to withdraw his plea of guilty … . Accordingly, the matter must be remitted to the County Court, Westchester County, for a hearing on the defendant’s motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and for a new determination of the motion thereafter. People v King, 2015 NY Slip Op 05209, 2nd Dept 6-17-15

 

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Defense Counsel’s Failure to Pursue a Minimal Investigation (i.e., Failure to Access Defendant’s Psychiatric Records and Failure to Have the Defendant Examined by an Independent Psychiatrist) Constituted Ineffective Assistance of Counsel—Conviction Reversed

The Second Department determined defendant’s motion to vacate his conviction should have been granted.  Defendant suffered from mental illness and had been hospitalized for psychiatric disorders.  The trial court had granted defense counsel permission to access to defendant’s psychiatric records and had granted authorization for the appointment of an independent psychiatrist to evaluate defendant.  Defense counsel did not seek the psychiatric records, nor the evaluation by the independent psychiatrist.  The Second Department, after an in-depth explanation of the criteria, held that defendant was deprived of effective assistance of counsel.  The court noted that the ground at issue here, defense counsel’s failure to pursue minimal investigation, required reversal without a showing that the result of the trial would have been different had the investigation been conducted:

A criminal defendant is guaranteed the effective assistance of counsel under both the federal and the state constitutions (see US Const Amend VI; NY Const, art I, § 6). Generally, to prevail on a claim of ineffective assistance of counsel under the United States Constitution, a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness” …, and, second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” … .

Under the New York Constitution, a defendant must show that he was not afforded “meaningful representation” … , which also entails a two-pronged test, “with the first prong identical to its federal counterpart” …, and the second being a “prejudice component [which] focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … and, thus, is “somewhat more favorable to defendants” … . A reviewing court must examine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … .

Under both state and federal law, a defendant’s right to the effective assistance of counsel includes assistance by an attorney who has conducted a reasonable investigation into the relevant facts and law to determine whether matters of defense can be developed … .

Generally, in order to make out a claim of ineffective assistance under the New York Constitution, a defendant is required to make some showing of prejudice, albeit not necessarily the “but for” prejudice required under federal law … . However, prejudice is not an “indispensable element in assessing meaningful representation” … . The Court of Appeals has indicated that counsel’s failure to pursue the minimal investigation appropriate with respect to an issue central to the defense itself “seriously compromises [the] defendant’s right to a fair trial,” regardless of whether the information would have altered the uninformed strategy counsel employed, or otherwise helped the defense … .

Here, the People’s case hinged almost entirely on their ability to prove the defendant’s state of mind, and trial counsel undisputedly failed to take the minimal steps of obtaining the defendant’s psychiatric records and having him evaluated by an expert, which were necessary to make an informed decision as to whether or not to present a psychiatric defense. Under the circumstances of this case, the People’s argument that, even with the benefit of the evidence trial counsel should have obtained, there is no reasonable chance that a mental disease or defect or EED defense would have been successful, or that the outcome of the trial would otherwise have been different, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitutes meaningful representation as a matter of law … . Trial counsel’s “total failure” in this regard deprived the defendant of meaningful representation … . People v Graham,2015 NY Slip Op 04862, 2nd Dept 6-10-15

 

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Conflicting Interests Prevented Attorney from Representing Both the Driver and Passenger in a Stopped Car Which Was Rear-Ended

The Second Department determined, once a counterclaim was made against the driver of the car which was stopped and rear-ended, a conflict of interest arose prohibiting an attorney from representing both the driver and the passenger (Earl):

The general rule is that an attorney is not entitled to a fee in a personal injury action if the attorney violated the Rules of Professional Conduct (12 NYCRR 1200.0) by representing both the driver of an automobile involved in a collision and a passenger in that vehicle … provides, in pertinent part, with respect to conflicts of interests involving current clients, that a lawyer shall not represent a client if a reasonable lawyer would conclude that “the representation will involve the lawyer in representing differing interests” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][1]) . Pursuant to rule 1.7(b) of the Rules of Professional Conduct (22 NYCRR 1200.0) the potential conflict may be waived if the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against the other in the same litigation, and each affected client gives informed consent, confirmed in writing. In the instant case, there was no written confirmation of informed consent to the potential conflict.

[The attorney] contends that since Earl was a passenger in a stopped vehicle which was struck in the rear, the driver of the stopped vehicle was clearly not at fault, and there was no conflict of interest … . However, once the defendant asserted a counterclaim, the pecuniary interests of the driver conflicted with those of the passenger… . Shelby v Blakes, 2015 NY Slip Op 04839, 2nd Dept 6-10-15

 

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