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Law Office Failure Justified Vacation of Default Judgment

The Second Department found the evidence in the motion to vacate a default was sufficient: “Here, the moving defendants’ claim of law office failure was supported by a ‘detailed and credible’ explanation of the default.  Moreover, the moving defendants demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion. Accordingly, the Supreme Court providently exercised its discretion in vacating their default in opposing the plaintiff’s motion for summary judgment.”  Properties, LLC v McDonald, LLC, et al, 2011-11434, 2012-04529, Index No 14525/09, 2nd Dept. 3-6-13

 

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Failure to Request Court-Permission to Re-Present Charges to a Grand Jury Is Reversible Error Which Survives a Guilty Plea

The First Department held that as long as the prosecutor presents evidence regarding potential charges to a grand jury, court-permission to re-present the charges is required.  “The critical question is whether the grand jury failed to indict after a full presentation of the case.”  The fact that the prosecutor “withdrew” the charges from the grand jury’s consideration, or allowed the grand jury to vote to “take no affirmative action” on them, is of no consequence.  The prosecutor’s failure to request and receive court-permission to re-present is a reversible error which survives a guilty plea.  People v Dinkins, 8603, 1443/10, 1st Dept. 3-5-13

 

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State Equal Access to Justice Act 

In a full-fledged opinion by Justice Mazzarelli, the First Department interpreted the State Equal Access to Justice Act to allow the award of attorney’s fees under the “catalyst theory.” The petitioner had brought an Article 78 proceeding to compel the City to reinstate public assistance benefits after the Office of Temporary and Disability Assistance had ordered the City to do so. Two weeks after the Article 78 proceeding was started, the City complied with the order and reinstated the benefits.  The First Department determined the Article 78 proceeding was the “catalyst” for the City’s reinstatement of the benefits and, under the State Equal Access to Justice Act, the petitioner was entitled to attorney’s fees.  In re Luz Solla v Berlin, et al, 7847 & 401178/11, 2259, 1st Dept. 3-5-13

 

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any failure by defense counsel to move to suppress identification testimony did not rise to ineffective assistance.

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that defense counsel’s failure to move to suppress based upon a violation of Criminal Procedure Law 710.30, which requires notice of any identification of the defendant as the perpetrator, did not rise to ineffective assistance. Although the People provided notice of an identification of the defendant by the victim at a particular time, they did not provide notice of a subsequent identification by the victim a few minutes later after defendant was in custody:

Assuming that there was a section 710.30 violation, it might not have resulted in exclusion of the evidence in question. CPL 710.30 (2) provides for the possibility of late notice, and a belated suppression hearing, when the People show “good cause.” The belated notice and hearing may occur during the trial …, and if the trial court thought the People had made an excusable error it might have granted such a remedy here.

In short, it is not obvious that defendant’s counsel could have successfully sought preclusion of the evidence of the victim’s post-arrest identification under section 710.30. An argument for preclusion could have been made, but not an argument “so compelling that a failure to make it amounted to ineffective assistance of counsel” … . Counsel’s performance should not be “second-guessed with the clarity of hindsight” … . Any deficiency in her performance was not so great that it can support an ineffective assistance claim.

Nor has defendant shown any serious likelihood that he was prejudiced by trial counsel’s alleged error. Even if the trial court had precluded evidence of the victim’s post-arrest identification, the evidence against defendant would remain strong. People v Vasquez, 2013 NY Slip Op 01016 [20 NY3d 461], CtApp 2-19-13

 

 

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Attorney Conflict Affected Defense Requiring Reversal.

The Fourth Department reversed defendant’s conviction because his attorney had a conflict of interest.  The attorney had represented someone who was heard on a recording talking to the defendant. The People sought to introduce the recording in evidence to prove defendant’s motive and intent for the charged burglary. The Fourth Department explained the procedure and criteria for determining whether such a conflict of interest requires reversal.  One of the criteria is that the conflict affect the conduct of the defense, which the Fourth Department found to have occurred in this case.  People vs McGillicuddy, 7 12-00530 Fourth Dept. 2-8-13

 

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No Right to Counsel in Presentence Interview.

There is no right to counsel in a presentence interview with the probation department.  People vs McNamara, 1472, KA 12-00204 Fourth Dept. 2-8-13

 

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Right to Counsel.

In a proceeding pursuant to part three, article six of the Family Court Act to allow a mother visitation with her child in her home, the Fourth Department determined the grandmother, who had primary physical custody of the child, should have been advised of her right to assigned counsel (Family Court Act section 262 (a)(iii)).  The court’s failure to so advise her constituted reversible error.  Matter of Wright vs Walker, 11, CA-12-00962 Fourth Dept. 2-1-13

 

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Third-Party Claims Against Other Law Firms Which Advised Plaintiff.

The First Department, in a full-fledged opinion by Justice Saxe, determined a law firm sued for malpractice could assert third party claims against other law firms which advised the plaintiff on the same matter.  There is a substantive discussion of similar third party actions in legal malpractice cases.  Millenium Import, LLC v Reed Smith LLP, et al, Index 603350/07; 591100-07 First Dept. 1-24-13

 

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Acceptance of Settlement Offer Not Communicated to Opposing Party or Insurer—No Settlement—Attorney Lost Contingency Fee Based on Settlement Amount.

The fact that the plaintiff signed a general release and hold-harmless agreement was not enough to settle the case.  There was no proof the plaintiff’s attorney communicated plaintiff’s acceptance of the settlement offer to the defendant or defendant’s insurance carrier.  Therefore, plaintiff, with a new attorney, was allowed to go forward with the lawsuit and plaintiff’s original attorney could not collect his contingency fee, which was based on the settlement-amount. Gyabaah v Rivlab Transportation Corp., et al, 7654, Index 309081/10 First Dept. 1-10-13

 

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