You are here: / Attorneys
, ,

“Pertinent to Litigation” Privilege for Statements Made by an Attorney Does Not Apply If the Relevant Litigation Is a “Sham”—Here Sufficient “Sham Litigation” Allegations Were Made—Slander Per Se Cause of Action Should Not Have Been Dismissed

In finding plaintiff had stated a cause of action for slander per se, the First Department explained that the privilege for statements made by an attorney which pertain to on-going litigation does not apply if the litigation is a “sham.”  The plaintiff, an attorney, sued Finkelstein, also an attorney, for statements alleged to have been made by Finkelstein to plaintiff’s former client, Harrison. Plaintiff alleged that Finkelstein told Harrison plaintiff had taken Harrison’s money and that Finkelstein was the source of the false allegations in Harrison’s complaint against plaintiff.  Disagreeing with Supreme Court, the First Department held that the complaint stated a cause of action because the complaint sufficiently alleged the lawsuit brought by Harrison was a “sham” to which the “statements pertinent to litigation” privilege would not apply:

… [A] statement that is pertinent to litigation is absolutely privileged and cannot form the basis of a defamation action. That principal of law was first stated by the Court of Appeals in Youmans v Smith (153 NY 214, 219 [1897]), and was recently reaffirmed by the Court in Front, Inc. v Khalil (24 NY3d 713 [2015]) . This Court has held that, where the privilege is invoked, “any doubts are to be resolved in favor of pertinence” … . Further, the test to determine whether a statement is pertinent to litigation is ” extremely liberal'” …, such that the offending statement, to be actionable, must have been “outrageously out of context” … .

This Court has recognized, however, that the privilege is capable of abuse and will not be conferred where the underlying lawsuit was a sham action brought solely to defame the defendant … , in which this Court declined to dismiss a defamation claim based on the pertinency privilege where the context in which the allegedly offending statement was made was a litigation that the plaintiffs filed but never prosecuted. The existence of this “sham litigation” exception has been confirmed (but not applied) in other cases in this Department… . Flomenhaft v Finkelstein, 2015 NY Slip Op 03468, 1st Dept 4-28-15

 

,

Decision Whether to Submit a Lesser Included Offense to the Jury Is for the Attorney, Not the Defendant, to Make—Failure to Grant the Attorney’s Request (Because the Defendant Objected) Reversible Error

The Second Department reversed defendant’s conviction because Supreme Court followed the defendant’s, rather than the defendant’s attorney’s, wishes re: the submission of a lesser included offense (here petit larceny) to the jury. The defendant did not want the lesser included offense submitted to the jury, but his attorney did. The Second Department explained that the decision whether to request a jury charge on a lesser included offense is a strategic one made by the attorney, not the defendant:

…[T]he decision whether to seek a jury charge on a lesser-included offense is a matter of strategy and tactics which is “for the attorney, not the accused to make” … .

Contrary to the People’s contention, the failure to submit the lesser-included offense to the jury constituted reversible error under the circumstances of this case. To be entitled to a charge on a lesser-included offense, a defendant must establish that (1) it was impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct, and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater (see CPL 300.50[1]…). The crime of petit larceny is a lesser-included offense of robbery in the first degree … . People v Lowery, 2015 NY Slip Op 03385, 2nd Dept 4-22-15

 

, ,

Under the Facts, the Merger Doctrine Precluded Convictions on Both Kidnapping and Burglary Counts/Statements and Lineup Identification Made after Defendant Invoked His Right to Counsel Should Have Been Suppressed

The Second Department reversed defendant’s convictions, dismissed the counts which violated the merger doctrine, and ordered a new trial on the remaining counts.  The merger doctrine precluded the kidnapping counts because the restraint of the complainants was inseparable from the burglary count of which defendant was convicted. Supreme Court should have suppressed statements made after defendant invoked his right to counsel and should not have allowed identification evidence stemming from a lineup about which defendant’s attorney was not informed. On remand, the court must conduct an “independent source” hearing to determine if the witness can identify the defendant without reliance on the tainted lineup. The Second Department also noted that prior uncharged-crime evidence was improperly admitted to prove “identity:”

The defendant correctly contends that his conviction of four counts of kidnapping in the second degree must be vacated by virtue of the merger doctrine. Under the circumstances of this case, the merger doctrine precludes the convictions of kidnapping in the second degree because the restraint of the complainants was essentially incidental to and inseparable from the count of burglary of which the defendant was convicted … . …

…[T]he hearing court erred in denying those branches of his omnibus motion which were to suppress a statement that he made to law enforcement officials and lineup identification testimony. “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . The defendant, who was in custody, invoked his right to counsel prior to waiving his Miranda rights (see Miranda v Arizona, 384 US 436, 444) and giving a statement to law enforcement officials. Since the defendant gave a statement to those officials in the absence of counsel, and after the right to counsel had indelibly attached, the Supreme Court should have suppressed the statement.

Similarly, the defendant’s right to counsel was also violated when police officers conducted a lineup without apprising the defendant’s attorney and affording the attorney a reasonable opportunity to participate … . Since there was no independent source hearing conducted in connection with an in-court identification of the defendant by one of the complainants, the Supreme Court must conduct a hearing, unless waived by the defendant, to determine whether there was an independent source for the in-court identification or, conversely, whether that identification was tainted by the improperly conducted lineup, and thereby rendered inadmissible … . People v Garnes, 2015 NY Slip Op 03381, 2nd Dept 4-22-15

 

,

Venue Was Not Proper—However, Because the Party Seeking the Change of Venue Did Not Comply With the Statutory Procedure, Whether to Grant a Change of Venue Was Discretionary—In the Exercise of Discretion, Change of Venue Was Properly Denied

Respondent law firm filed a default judgment prematurely (re: attorney’s fees) and immediately took steps freeze petitioner’s assets. Petitioner started the instant proceeding in Ulster County pursuant to CPLR 5240 seeking a protective order and vacation of all the enforcement devices used by the law firm.  The law firm made a cross-motion for a change of venue. Supreme Court denied the cross-motion, found that the law firm had engaged in frivolous conduct, directed the law firm to pay petitioner costs and counsel fees, and ordered the managing attorney of the law firm to complete eight hours of continuing legal education (CLE) in civil practice.  The Third Department affirmed Supreme Court, with the exception of the CLE sanction, which Supreme Court did not have the authority to order. The bulk of the decision is devoted to a discussion of the law surrounding a change of venue.  Supreme Court denied the change of venue cross-motion “as of right,” finding that Ulster County was the proper venue for the CPLR 5240 proceeding brought by the petitioner.  The Third Department disagreed, ruling that Ulster County was not the proper venue because the law firm, the respondent in the proceeding, did not have an office in Ulster County as required by the relevant provisions of the CPLR. But, after an extensive analysis, the Third Department concluded the cross-motion to change venue was properly denied as an exercise of discretion. Because the respondent did not follow the statutory procedure (CPLR 511) for seeking a change of venue (no demand for such relief was served before the cross-motion was made), the cross-motion was addressed to Supreme Court’s discretion. CPLR 510 allows a change of venue where “(1) the designated county is not a proper county, (2) “there is reason to believe that an impartial trial cannot be had in the proper county” or (3) “the convenience of material witnesses and the ends of justice will be promoted by the change”… .  Although the first criterium was met, the other two were not. Denial of the cross-motion was a proper exercise of discretion:

By failing to comply with the statutory procedure for changing venue, respondent was not entitled to a change of venue as of right. Where a respondent believes that a petitioner has chosen an improper venue, the respondent shall serve, with or before service of the answer, a written demand on the petitioner that venue be changed to a county that the respondent specifies as proper (see CPLR 511 [a], [b]). The petitioner has five days after service of the demand to serve a written consent to change venue (see CPLR 511 [b]). If no such consent is served by the petitioner, the respondent must move to change venue within 15 days of service of the demand (see CPLR 511 [b]). If a respondent fails to comply with these procedures and time limits, the respondent is not entitled to have the motion granted as of right, even if the venue was improper; the motion instead becomes one addressed to the court’s discretion… ). Here, respondent served a cross motion seeking to change venue without having first served a demand for such relief. Accordingly, the motion was addressed to Supreme Court’s discretion… . * * *

Petitioners commenced this proceeding in Ulster County pursuant to CPLR 5240, which provides that “[t]he court may at any time, on . . . the motion of any interested person, . . . make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure.” If a judgment that is sought to be enforced was entered in Supreme Court anywhere in New York, “a special proceeding authorized by [CPLR article 52] shall be commenced, either in the supreme court or a county court, in a county in which the respondent resides or is regularly employed or has a place for the regular transaction of business in person,” if such a county exists in the state (CPLR 5221 [a] [4]). CPLR 5240 is found within CPLR article 52, and the Court of Appeals has stated that a request for court action under CPLR 5240 is properly commenced as a “special proceeding” … . Respondent, by its very designation in the caption, is the “respondent” as mentioned in CPLR 5221 (a). Respondent is a law firm with its main office in Oswego County, which is considered its residence (see CPLR 503 [c]), and no office or place of business in Ulster County. Under a plain reading of CPLR 5221 (a), the instant special proceeding was required to be commenced in Oswego County (or another county in New York where respondent has an office where it regularly transacts business), rather than Ulster County.* * *

Thus, as Oswego County, rather than Ulster County, is the proper venue under either subdivision of CPLR 5221, the first ground under CPLR 510 could support respondent’s discretionary motion to change venue.

The second ground for discretionary change of venue does not support a change, as the record contains no information that an impartial trial would be difficult to obtain in Oswego County. As for the third ground, petitioners asserted that they are residents of Ulster County and the banks that were served the restraining notices and information subpoenas are all in or around Ulster County, so numerous material witnesses appear to be located in that county. Additionally, it appears that the ends of justice would not be promoted by changing venue. In sum, the first ground would support changing venue, while the second and third grounds do not. Although Supreme Court erred in denying respondent’s cross motion as of right, in the exercise of our discretion we reach the same conclusion. Matter of Aaron v The Steele Law Firm, P.C., 2015 NY Slip Op 03018, 3rd Dept 4-9-15

 

, ,

Where It Was Not Clear that Grand Jury Proceedings in Which a County Employee Was Directed to Appear Involved a Criminal Matter, as Opposed to Civil Misconduct or Neglect, the County Was Required to Pay for the Employee’s Defense Pursuant to Public Officers Law Section 18

The Third Department affirmed Supreme Court’s ruling that petitioner, a county employee, was entitled to attorney’s fees pursuant to Public Officers Law section 18 in connection his appearances in grand jury proceedings.  The county argued that the statute only requires payment for the defense of an employee “in [a] civil action or proceeding” and a grand jury proceeding is criminal in nature.  The Third Department noted that the district attorney would not divulge the nature of the grand jury proceedings and grand juries can be convened to consider noncriminal misconduct or neglect by public employees.  Therefore the employee was entitled to attorney’s fees for his defense:

Respondent failed to demonstrate what the object of the grand jury proceeding was, readily admitting that the District Attorney had not made his “intentions [known] in relation to the potential for criminal charges.” While grand juries may indict a person for a criminal offense (see CPL 1.20 [18]; 190.60 [1]), they are also empowered “to make presentments as to noncriminal misconduct or neglect by public officers and employees” … . Thus, because there is no indication that criminal charges are [*3]actually being contemplated, Supreme Court properly “reject[ed] respondent’s claim that because the [g]rand [j]ury proceeding[s] could have resulted in criminal charges against petitioner, the proceeding[s] [were] not civil in nature” … . “Any other holding would defeat the clear intent of the statute, which insulates public employees from litigation expenses arising out of their employment” … . Matter of Mossman v County of Columbia, 2015 NY Slip Op 03005, 3rd Dept 4-9-15

 

, ,

Prosecutor Acted as an Unsworn Witness and Improperly Suggested Defendant Committed Offenses With Which He Was Not Charged—Conviction Reversed in the Interest of Justice

The Second Department determined defendant’s weapon-possession conviction must be reversed because of the misconduct of the prosecutor.  Although the errors were not preserved by objection, the court invoked its “interest of justice” power to reach the issue.  The prosecutor functioned as an unsworn witness by indicating, during cross-examination of the defendant, that her office had called a restaurant to find out the closing time and using that information to impeach the defendant’s testimony. The prosecutor, in her summation, accused the defendant of lying based on the unsworn “restaurant closing-time” information she had put on the record.  In addition, the prosecutor suggested that defendant intended to use the weapon to harm someone and had committed multiple gun-possession offenses, unsupported claims not relevant to the charged offense:

The prosecutor improperly functioned as an unsworn witness when she cross-examined the defendant regarding the closing time of a restaurant in Brooklyn … .  The police officers who conducted the traffic stop testified on their direct examinations that the traffic stop occurred at 9:35 p.m. On his direct examination, in contrast, the defendant testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m., while he and the other occupants of the vehicle were on their way to a restaurant in Brooklyn. During the prosecutor’s cross-examination of the defendant, she improperly suggested facts not in evidence when she implied that the District Attorney’s office had called the restaurant to ascertain its hours of operation, and asked the defendant whether he testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m. because he knew that the restaurant was not open at 9:35 p.m. … . During summation, the prosecutor again improperly implied, without having submitted any evidence about the closing time of the restaurant, that the defendant had lied about what he was doing at the time of the traffic stop … .

Further, the prosecutor made improper remarks during summation which suggested that the defendant possessed the weapon with an intent to use it to harm someone, even though this was not an element of the crime for which the defendant was on trial … . Similarly, the prosecutor’s questioning of the defendant about one of his tattoos was improper and led to the inflammatory and unsupported inference that the defendant had previously used the weapon to harm someone … . It was also improper for the prosecutor to argue during summation that the defendant had learned certain information during the pretrial hearing even though there was no evidence to support this assertion … .

In addition, the prosecutor’s statement during summation that the defendant did not make any sudden movements during the traffic stop because he had already “played out this exact scenario in his mind . . . every time he left his house with that gun” was improper speculation, without any basis in the record, that the defendant had committed multiple gun possession offenses prior to the subject incident which led to his arrest … .People v Rowley, 2015 NY Slip Op 02988, 2nd Dept 4-8-15

 

,

Reversal Due to Ineffective Assistance Affirmed Over Forceful Dissent

The Court of Appeals, in a brief memorandum decision, affirmed the Appellate Division’s reversal of defendant’s conviction due to ineffective assistance of counsel, noting counsel’s failure to invoke the court’s prior preclusion order and the presentation of an alibi defense for the wrong day.  Judge Pigott wrote a long and detailed dissent.  People v Jarvis, 2015 NY Slip Op 02869, CtApp 4-7-15

 

, ,

Where a Client’s Claims Against an Attorney Arise from the Attorney’s Providing Legal Services Which Are Related In Part to the Attorney’s Business Enterprise, the “Business Enterprise” Coverage Exclusions In the Legal Malpractice Insurance Policy Are Triggered

The First Department, in a full-fledged opinion by Justice Gische, determined the “business enterprise” exclusions in a legal malpractice insurance policy applied. Excluded from coverage were claims arising from the operation of a business enterprise in which the insured attorney was a principal.  The client, who sued for breach of contract and legal malpractice, had loaned money to the attorney’s real estate business and the attorney had drawn up the relevant documents and personally guaranteed payment. The fact that the client’s claims arose in part from the attorney’s involvement in his business enterprise triggered the policy exclusions.  The First Department, in this declaratory judgment action, held that the legal malpractice insurer had no duty to defend:

[The attorney] was simultaneously serving two masters, … his client, and a company of which he was a principal. This is precisely the situation that the policy’s Insured Status and Business Enterprise Exclusions exclude from coverage. Since [the client’s] claims partly arise from the legal services the attorneys provided her with, but also from [the attorney’s] status or activity for his company…, they are of a hybrid nature, and are not covered, meaning that [the insurer] has no duty to defend … .Lee & Amtzis, LLP v American Guar. & Liab. Ins. Co., 2015 NY Slip Op 02919, 1st Dept 4-7-15

 

, ,

Defense Counsel Took a Position Adverse to the Defendant’s—Sentence Vacated

The Third Department determined the defendant’s sentence must be vacated because defense counsel took a position adverse to the defendant re: the defendant’s motion to withdraw his plea:

“It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea”… . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client …, make remarks that “affirmatively undermine” a defendant’s arguments …, or otherwise “take a position that is adverse to the defendant” … . Here, when asked to respond to defendant’s pro se motion, counsel advised that, in his opinion, “[County] Court thoroughly explained everything to him . . ., [defendant had] no questions concerning the plea” and that there was no way that he could see that defendant “pleaded without knowing what he was pleading to.” In our view, because counsel’s opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant … . People v Prater,2015 NY Slip Op 02806, 3rd Dept 4-2-15

 

, , ,

Ex Parte Interview of Important Prosecution Witness Re: the Witness’ Health, Addictions and Ability to Testify Violated Defendants’ Right to Confrontation and Right to Counsel

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that the court’s conducting an ex parte interview of a main prosecution witness concerning the witness’ health, addictions and his related ability to testify violated the defendants’ right to confrontation and right to counsel:

Absent a substantial justification, courts must not examine witnesses about nonministerial matters in camera without counsel present or ex parte (see … People v Goggins, 34 NY2d 163, 173 [1974]). “[A]n in-camera examination of the witnesses, that is ex parte or without the parties represented would, in our view, arguably trifle with the constitutional right to confrontation and the right to counsel” (Goggins, 34 NY2d at 169). A “defendant’s right to the full benefit of the adversary system should not be denied, nor qualified by impairing his right by interposing the ‘neutral’ Judge to assess whether the disclosure is relevant or material” (id.). Goggins concerned a defendant’s right to disclosure of an informant’s identity, and this Court held that where the information “relates to a substantive issue in the case, the disclosure should not be ex parte or without either party present even if in camera” (id. at 173). * * *

The denial of the right to counsel at trial “is of constitutional dimension” and is not subject to harmless error analysis … . Courts should not delve into questions of prejudice when assistance of counsel is involved … . As this Court recognized, “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial” … . And as this Court held in Hodge, a quantification of what impeachment material defense counsel might have obtained at the proceeding cannot be dispositive …, as harmless error does not apply in right-to-counsel cases … .

Here, the in camera proceeding clearly involved substantive issues as opposed to ministerial matters and there was no justification for excluding defense counsel. Because the discussion involved important issues for trial that might have affected a “substantial right” of a party, defense counsels’ presence was required… . People v Carr, 2015 NY Slip Op 02798, CtApp 4-2-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy