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Failure to Appeal Dismissal of Underlying Medical Malpractice Action Did Not Preclude Related Legal Malpractice Action

The Fourth Department, over a dissent, allowed a legal malpractice action to go forward, finding that the plaintiff’s failure to appeal the dismissal of the underlying federal medical malpractice action did not preclude the related legal malpractice action. In the federal action, the court determined a physician was an independent contractor, not a government employee, and therefore had to be named individually as a defendant. The action against the physician was dismissed as time-barred. The dissent argued “if plaintiff had been successful in his appeal of the underlying federal action, we would not have a subsequent legal malpractice case.”  In holding that the failure to appeal the federal ruling did not preclude the legal malpractice action, the Fourth Department distinguished a prior case, Rupert v Gates and Adams, PC, 83 AD3d 1383, relied upon by the defendants:

We reject defendants’ invitation to extend the ruling in Rupert to a per se rule that a party who voluntarily discontinues an underlying action and forgoes an appeal thereby abandons his or her right to pursue a claim for legal malpractice. …

Although the precise question presented herein appears to be an issue of first impression in New York, we note that several of our sister states have rejected the per se rule advanced by defendants herein… .  … [S]uch a rule would force parties to prosecute potentially meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action, thereby increasing the costs of litigation and overburdening the court system ….  The additional time spent to pursue an unlikely appellate remedy could also result in expiration of the statute of limitations on the legal malpractice claim ….  Further, requiring parties to exhaust the appellate process prior to commencing a legal malpractice action would discourage settlements and potentially conflict with an injured party’s duty to mitigate damages… .  Grace v Law, et al, 625, 4th Dept 7-19-13

 

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Waiver of Appeal Invalid; Counsel Did Not Take Position Adverse to Client Re: Pro Se Motion

In affirming the conviction, the Third Department determined the waiver of appeal (re; the harshness of the sentence) was not valid and defendant’s counsel had not take a position adverse to the defendant with respect to defendant’s pro se motion to withdraw his guilty plea. Although defense counsel responded negatively when the court asked if counsel knew of any legal basis for defendant’s motion, the Third Department explained that counsel was unaware of the contents of the motion at the time the court asked about it:

County Court failed to adequately distinguish the right to appeal from  those rights that are automatically forfeited upon  a guilty plea, thus rendering defendant’s appeal waiver invalid…. Moreover, no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was  also waiving his right to appeal the harshness of his sentence …. Nor do we  find that the deficiencies in the allocution are cured by defendant’s written appeal waiver…  * * *

…[D]efense counsel’s negative  response  to County  Court’s inquiry  at the outset of the hearing as to whether  “there [was] any  legal basis in [counsel’s] knowledge to allow [defendant] to withdraw his plea of guilty” was clearly not an opinion on the merits of defendant’s pro se motion – which counsel had not yet reviewed – and, thus, counsel did not thereby take a position adverse to that of his client or affirmatively undermine  the arguments  that defendant sought to present to the court… .  People v Pimentel, 104070, 3rd Dept 7-11-13

 

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Respondents in Visitation Proceeding Have Right to Assigned Counsel

The Fourth Department reversed and remitted a visitation proceeding to Family Court because Family Court had relieved assigned counsel, noting that the Fourth Department had recently held respondents in visitation proceedings are entitled to assigned counsel:

Family Court erred in relieving his assigned counsel after the modification petition, which sought full legal custody of the three children at issue, was amended to seek only a modification of respondent’s visitation (amended petition).  While this appeal was pending, we held that respondents in visitation proceedings are entitled to assigned counsel… . Matter of Brown v Patterson, 768, 4th Dept 7-5-13

 

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Law Office Failure Can Be a Valid Excuse Re: Vacating a Default Judgment

In reversing Supreme Court’s denial of a motion to vacate a default judgment, the Fourth Department explained that law office failure can be excused:

The court erred in rejecting that excuse on the ground that “law office failure is not an excuse that is accepted by the Court of Appeals.”    It is well established that law office failure may be excused, in the court’s discretion, when deciding a motion to vacate a default order (see CPLR 2005;…). With respect to other relevant factors, we note that defendants had contested plaintiff’s claims in federal court for more than a year before this action was recommenced in Supreme Court, and their attorneys had filed timely notices of appearances in Supreme Court and had been communicating with plaintiff’s attorney before the answer was due. We further note that plaintiff was not prejudiced by defendants’ inadvertent default, and that the extent of the delay was minimal. Calaci v Allied Interstate, Inc…, 750, 4th Dept 7-5-13

 

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Attorney’s Illness Was Adequate Excuse—Vacation of Preclusion Order Allowed

The Fourth Department affirmed Supreme Court’s allowing plaintiff in a medical malpractice action to respond to discovery demands, after the court had precluded plaintiff for not responding.  Plaintiff’s attorney’s illness provided a reasonable excuse, and the expert’s affirmation (later converted to an affidavit as directed by the court) demonstrated a meritorious action:

“It is well established that the illness of an attorney may constitute a reasonable excuse for a default… . In support of the motion, plaintiff’s counsel averred that, from early 2010 until shortly before his motion to vacate the default order, he was suffering from recurring health issues stemming from two heart attacks, a serious infection requiring hospitalization, and uncontrolled Type II diabetes. According to counsel, those medical issues “affected [his] health in an ongoing manner and prevented [him] from diligently and timely responding to [defendants’] demands in this case.” There is no evidence that counsel’s neglect in this case was “willful, contumacious or manifested bad faith” … . Particularly in light of New York’s “strong public policy . . . [in favor of] disposing of cases on their merits”…, we conclude that “[w]here, as here, there is no evidence of willfulness, deliberate default, or prejudice to the defendants, the interest of justice is best served by permitting the case to be decided on its merits” ….  Loucks v Klimek, 477, 4th Dept 7-5-13

 

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Legal Malpractice Action Accrues When Committed, Not When Client Learns of It

The Fourth Department explained when a legal malpractice action accrues (when it is committed, whether or not the aggrieved party is aware of it):

“ ‘A cause of action for legal malpractice accrues when the malpractice is committed’ ”….  “In most cases, this accrual time is measured from the day an actionable injury occurs, ‘even if the aggrieved party is then ignorant of the wrong or injury’ ”….“ ‘What is important is when the malpractice was committed, not when the client discovered it’ ” … .  Elstein v Phillips Lytle, LLP, 631, 4th Dept 7-5-13

 

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Writ of Coram Nobis Granted—Ineffective Assistance of Appellate Counsel

The Second Department granted defendant’s writ of coram nobis to vacate (dismissing the indictment), on the ground of ineffective assistance of appellate counsel.  Among the grounds for appeal not raised were: repugnant verdicts, erroneous and missing jury charges (including the statutory elements), failure to give a limiting charge with respect to evidence of defendant’s prior criminal record, and prosecutorial misconduct.  People v Morales, 2013 NY Slip Op 05094, 2nd Dept 7-3-13

 

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Family Court committed reversible error by depriving father of his right to self-representation

In determining Family Court committed reversible error by depriving father of his right to self-representation, the Second Department wrote:

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had a right to be represented by counsel (see Family Ct Act § 262[a][iii];…). A party, however, may waive the right to counsel and opt for self-representation… .. Before permitting a party to proceed pro se, the court must determine that the party’s decision to do so is made knowingly, intelligently, and voluntarily …, by conducting a “searching inquiry” of that party…. Where a respondent has made a knowing, intelligent, and voluntary choice to represent himself or herself, “forcing a lawyer upon [him or her] is contrary to his [or her] basic right to defend himself [or herself]” … .  Matter of Massey v Van Wyen, 2013 NY Slip Op 05078, 2nd Dept 7-3-13

 

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Only Attorney Can Represent Voluntary Association—Appeals Dismissed

In dismissing the appeals, the First Department held that only an attorney can represent a voluntary association

Petitioner is a voluntary association comprised of rent-regulated tenants in the subject building. Patricia Pillette is a member of the association and appears pro se purportedly on behalf of the association. However, Pillette is not an attorney, and a voluntary association may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York (see CPLR 321[a]). Accordingly, petitioner’s failure to appear by attorney requires dismissal of the appeals… .  Matter of Tenants Comm of 36 Gramercy Park v NYS Div of Hous & Community Renewal, 2013 NY Slip Op 04984, 1st Dept 7-2-13

 

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Default Finding Should Not Have Been Made Where Attorney Appeared and Asked for Adjournment

In reversing the order of Family Court, the Fourth Department determined the Support Magistrate should not have ruled respondent had defaulted (respondent’s attorney appeared and requested an adjournment) and the colloquy between petitioner and the Support Magistrate was not a sufficient basis for a factual finding respondent had willfully violated a support order.  Family Court, therefore, should not have confirmed the Support Magistrate’s order.  Matter of Manning v Sobotka, 739, 4th Dept 6-28-13

 

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