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Allegation of “But For” Element of Attorney Malpractice Too Speculative

The First Department determined plaintiff had not sufficiently alleged the “but for” element of an attorney malpractice action.  Plaintiff alleged she would have won the arbitration in which the attorney represented her if the attorney had submitted certain evidence. The First Department found the allegation too speculative to support the action:

Plaintiff failed to allege facts that would satisfy the proximate cause element, namely, that “but-for” defendants’ alleged inadequate and ineffective representation of her in the underlying arbitration, she would have succeeded in demonstrating that her parents lacked an ownership interest in a contested family asset … . Plaintiff stated that if defendants had introduced her parents’ personal income tax returns in the underlying arbitration proceeding, the arbitration panel would have had no choice but to consider them, credit their contents, and hold that the information contained therein (i.e., that the parents allegedly made no claim of an ownership interest in the contested family asset) was binding against the parents in accordance with the tax estoppel doctrine. The contention that mere submission of the parents’ personal income tax filings in the arbitration proceeding would necessarily have altered the arbitration panel’s determination regarding the parents’ ownership interest in the subject asset is grounded in speculation, and thus, insufficient to sustain a claim for legal malpractice … . Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker, 2014 NY Slip Op 04428, 1st Dept 6-17-14

 

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Writs of Coram Nobis Alleging Ineffective Assistance Not Available In the Three Specific Cases Before the Court Involving the Failure to File Notices of Appeal and the Failure to Make a “Leave to Appeal” Application to the Court of Appeals

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined that a writ of coram nobis was not available to two defendants who alleged their attorneys failed to file timely notices of appeal, and to a third defendant who alleged his attorney's failure to make a criminal “leave to appeal” application to the Court of Appeals.  The opinion explains the history of the use of “writs of coram nobis” in this context. People v Andrews, 2014 NY Slip Op 04233, CtApp 6-12-14

 

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Failure to Advise Respondent of His Right to Counsel at a Temporary Removal Hearing Not Condoned—Reversal Not Required Because No Evidence from the Temporary Removal Hearing Was Elicited in the Subsequent Neglect Proceedings

The Third Department determined that Family Court’s failure to advise respondent on his right to counsel in a temporary removal hearing did not require the reversal of a subsequent neglect adjudication.  None of the evidence elicited at the temporary removal hearing was used during the neglect proceedings:

It is well established that failure to fully advise a respondent of his or her right to counsel is a deprivation of a fundamental right that requires reversal of any “resulting adjudication” in a proceeding pursuant to Family Ct Act article 10, whether or not prejudice is shown … . “[A] Family Ct Act § 1022 removal hearing is no exception” to this requirement … . Here, Family Court undisputedly failed to advise respondent of his right to counsel “[w]hen [he] first appear[ed] in court . . . before proceeding” with the temporary removal hearing (Family Ct Act § 262 [a]). We do not condone this failure … .

Nonetheless, we agree with the attorney for the children that the circumstances present here are distinguished from the precedent cited above –not due to the lack of any resulting prejudice, which would not suffice — but rather and specifically relative to whether the determination ultimately rendered after the fact-finding hearing constituted a “resulting adjudication.” Here, the neglect adjudication was based solely upon evidence elicited during the course of the fact-finding hearing; no testimony from the temporary removal hearing — in which respondent did not participate — was introduced. The adjudication following fact-finding did not therefore rely, in any part, on the evidence adduced at the temporary removal hearing … . Matter of Elijah ZZ, 2014 NY Slip Op 04280, 3rd Dept 6-12-14

 

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Defendant-Attorney Can Seek Contribution from Succeeding Attorney Who Contributed to Plaintiff’s Damages

The Second Department noted that a claim for contribution can be made by an attorney-defendant against a succeeding attorney who may have contributed to plaintiff’s damages.  The court also explained the nature of common law indemnification in this context:

“In determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff’s damages” … . “[T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors” … . A defendant attorney may seek contribution from a subsequently retained attorney, to the extent that the subsequently retained attorney’s negligence may have contributed to or aggravated the plaintiff’s injuries … . * * *

“[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor'” … . ” Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine'” … . Rehberger v Garguilo & Orzechowski LLP, 2014 NY Slip Op 04181, 2nd Dept 6-11-14

 

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Judge’s Speaking to a Juror During Deliberations, With Defense Counsel’s Permission, Outside the Presence of the Defendant and Counsel, Was a Mode of Proceedings Error Requiring Reversal

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined the judge's conducting a transcribed colloquy with a juror during deliberations, outside the presence of counsel and the defendant, was a mode of proceedings error requiring reversal.  Counsel were informed that a juror wished to talk to the judge and agreed that the judge could do so their absence. Counsel and the defendant were subsequently apprised of the substance of the colloquy and given the opportunity to read the transcript. Defense counsel did not raise an objection:

A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury … . This “absolute and unequivocal” right is further embodied in CPL 310.30 (Mehmedi, 69 NY2d at 760; see Collins, 99 NY2d at 17).

Under CPL 310.30, when a deliberating jury requests further instruction or clarification on the law, trial evidence, or any other matter relevant to its consideration of the case, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant,” the court must give such information or instruction as it deems proper (CPL 310.30…). We have consistently held that a defendant's absence during non-ministerial instructions, in violation of CPL 310.30, affects the mode of proceedings prescribed by law and presents an error of law for our review — even absent an objection or where defense counsel has consented to the procedures used.  People v Rivera, 2014 NY Slip Op 04115, CtApp 6-10-14

 

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Prohibition Proceeding Was the Proper Vehicle to Contest the Appointment of a Special Prosecutor—the District Attorney Had Disqualified Himself from an Election-Related Investigation and Successfully Applied for the Appointment of a Special Prosecutor

The Court of Appeals determined an Article 78 proceeding sounding in “prohibition” was the appropriate vehicle to contest the appointment of  a special prosecutor. The district attorney sought to disqualify himself from an election-related investigation and successfully applied to the Deputy Chief Administrative Judge for the NYC Courts for an appointment of a special prosecutor.  The petitioner then brought the prohibition proceeding to contest the appointment.  The appellate division dismissed the petition finding the “prohibition” action inappropriate.   The Court of Appeals determined prohibition was the correct action and the special prosecutor was validly appointed:

The Appellate Division denied the petition and dismissed the proceeding. It held that relief by prohibition was unavailable because the conduct that petitioner was seeking to prevent was not “the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice” but rather a “purely investigative function” that was “executive in nature” (Working Families Party v Fisher, 109 AD3d 478, 480 [2d Dept 2013]). * * *

The Appellate Division erred in holding that an article 78 proceeding in the nature of prohibition is an inappropriate remedy in this case. We recently restated the rule that “prohibition is an appropriate remedy to void the improper appointment of a [special] prosecutor when made by a court” … . While the power to grant prohibition should be exercised sparingly, its availability in cases like this serves an important purpose. When the validity of the appointment of a prosecutor is in question, the question should where possible be given a prompt and definitive answer. It is not in the public interest to allow a prosecutor to carry out a lengthy investigation when there is doubt that his or her appointment is valid, and to run the risk that the process will have to start all over again with a different prosecutor. Matter of Working Families Party v Fisher, 2014 NY Slip Op 04116, CtApp 6-10-14

 

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Prosecution by Misdemeanor Information Waived by Defense Counsel; Facts Alleged In Support of the Obstruction of Governmental Administration Charge Were Sufficient to Meet Requirements of a Misdemeanor Complaint

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the defendant had waived his right to be prosecuted by a misdemeanor information and the misdemeanor complaint to which he pled guilty sufficiently alleged the obstruction of governmental administration.  Defense counsel's statement “so waived” was deemed adequate to waive prosecution by information.  The misdemeanor complaint alleged that defendant stood behind a police vehicle after slamming the trunk shut. Those allegations were deemed sufficient to allege defendant intended to prevent the officer from patrolling the area. The dissent argued those factual allegations were insufficient to inform defendant of the nature of the charge:

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” … . Under the CPL, a court must use one of two instruments to take jurisdiction over a defendant accused of a misdemeanor: a misdemeanor complaint or a misdemeanor information. A misdemeanor complaint authorizes jurisdiction over an accused, and can commence a criminal action and allow the state to jail the defendant for up to five days, but it cannot serve as a basis for prosecution, unless the defendant waives prosecution by information (see CPL 100.10 [4]; 120.20 [1]; [a]; 170.65 [1], [3]; 170.70…). Concomitantly, unless waived, a valid information is a jurisdictional requirement for a misdemeanor prosecution (see CPL 100.10 [4]…).

A misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof” … . We have called this “the prima facie case requirement” (Kalin, 12 NY3d at 229). An information serves the same role in a misdemeanor prosecution as a grand jury indictment does in a felony case: it ensures that a legally sufficient case can be made against the defendant … . A misdemeanor complaint, in comparison, need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense … .

A defendant may knowingly and intelligently waive prosecution by misdemeanor information, as demonstrated by an affirmative act … . When the defendant waives prosecution by information, he or she declines the protection of the statute, and the accusatory instrument must only satisfy the reasonable cause requirement (see CPL 170.65 [1], [3]…). People v Dumay, 2014 NY Slip Op 04038, CtApp 6-5-14

 

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Client’s Claim His Attorney Pressured Him Into Changing the Retainer Agreement, Thereby Costing the Client More, Did Not Sound In Malpractice and Was Not an Arbitrable Fee Dispute

The First Department noted that an action by a client alleging he was pressured by his attorney into changing the retainer agreement from an hourly retainer to a contingency retainer (thereby costing the client more) did not sound in malpractice and was not arbitrable under part 137 of the Rules of the Chief Administrator of the Courts:

Plaintiff does not assert that defendants’ conduct caused the result of his dispute with his disability insurer to be worse than it would have been. Rather, he argues that defendants, in bad faith and without full disclosure, pressured him into changing from an hourly retainer to a contingency retainer. The only loss he alleges is the additional fees owed to counsel as a result of changing the retainer. This is fatal to his claim for malpractice … . …

The retainer agreement provided for arbitration under part 137 of the Rules of the Chief Administrator of the Courts. However, the gravamen of the contract claim is that it is invalid because of defendants’ misconduct in inducing plaintiff to sign it, or because it created a windfall for defendants. By the express terms of the rules the parties chose to govern their arbitration, claims such as this are not arbitrable since 22 NYCRR 137.1(b)(3) provides that part 137 does not apply to “claims involving substantial legal questions, including professional malpractice or misconduct” … . Cohen v Hack, 2014 NY Slip Op 04068, 1st Dept 6-5-14

 

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Court Did Not Conduct an Adequate “Searching Inquiry” Before Allowed Defendant to Represent Himself—New Trial Ordered

The First Department, in a full-fledged opinion by Justice Acosta, determined the trial judge did not conduct the requisite “searching inquiry” before allowing the defendant to represent himself.  The opinion includes all of the relevant exchanges between the judge and the defendant and compared those exchanges to the inquiry made in People v Wingate, 17 NY3d 469, where the Court of Appeals determined the inquiry by the trial court to be adequate:

Here, we find that the trial court’s inquiry failed to satisfy [the] “searching inquiry” standard. The court gave nothing more than generalized warnings, and completely failed to advise defendant of the benefits of being represented by counsel. The court’s statements to defendant that it was in his “interest” to continue with counsel; that “[g];enerally, [self-representation]; is a very bad idea”; and that there were “all kinds of dangers in doing this,” its sole example being that defendant would have to give the opening statement himself, failed to insure that the dangers and disadvantages of giving up the fundamental right to counsel [had]; been impressed on . . . defendant” … . The court also failed to advise defendant about the “importance of the lawyer in the adversarial system of adjudication” … . Because we find that the court did not make the requisite searching inquiry, we reverse the judgment convicting defendant and remand for a new trial.  People v Cole, 2014 NY Slip Op 04076, 1st Dept 6-5-14

 

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Court Is Not Required to Notify Defendant of His Right to Contest the Constitutionality of His Prior Conviction Before Sentencing Defendant as a Second Felony Offender

The Third Department noted that the sentencing court was not required to notify defendant of his right to contest the constitutionality of his prior conviction before sentencing defendant as a second felony offender:

” ‘County Court was not obligated to expressly advise defendant of his right to contest the constitutionality of the prior conviction'” … . Here, the record reveals that defendant was provided with the prior felony information before sentencing and, while represented by counsel during sentencing, declined to deny or controvert any of the allegations in the information. Accordingly, County Court substantially complied with the requirements of CPL 400.21 (3), and defendant was properly sentenced as a second felony offender … . People v Wilkins, 2014 NY Slip Op 04083, 3rd Dept 6-5-14

 

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