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MOTHER WAS AWARE OF THE GROUND FOR DISQUALIFYING FATHER’S ATTORNEY FOR YEARS BEFORE THE MOTION TO DISQUALIFY WAS MADE; MOTHER THEREBY WAIVED ANY OBJECTION TO FATHER’S COUNSEL (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined mother’s motion to disqualify father’s attorney should not have been granted because mother was aware of the ground for the motion in 2019 and did not move to disqualify until 2022. She was deemed to have waived any objection to father’s attorney:

The Family Court improvidently exercised its discretion in granting that branch of the mother’s motion which was to disqualify the father’s attorneys on the basis that the father’s current wife, the children’s stepmother, works as a paralegal in the law office that employs the father’s attorneys. * * *

Where a party seeks to disqualify its adversary’s counsel in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time … . If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation … . …

Here, the mother was aware of the employment of the father’s current wife at the law firm representing the father since 2019. Accordingly, the mother’s failure to move to disqualify the father’s attorneys until April 2022 constituted a waiver of her objection to the father’s legal representation … . In any event, the mother failed to demonstrate that the children will be prejudiced by the father being represented by his current attorneys. There is no evidence that during the course of her employment, the father’s current wife worked on the father’s case or that she otherwise communicated with the children about the case … . Matter of Marotta v Marotta, 2023 NY Slip Op 03694, Second Dept 7-5-23

Practice Point: If a party is aware of the ground for disqualification of the opposing party’s counsel but does not make a timely motion to disqualify (here years had passed), the moving party will be deemed to have waived any objection to opposing counsel.

 

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BECAUSE PETITIONER HAD SUBSTANTIALLY PREVAILED ON THE FOIL CAUSE OF ACTION, PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS, DESPITE THE FACT THAT MUCH OF THE LEGAL REPRESENTATION WAS BY PRO BONO COUNSEL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the petitioner was entitled to attorney’s fees and litigation costs because petitioner had substantially prevailed on its FOIL causes of action. The fact that much of the legal representation was pro bono was not a bar to recovery:

… [T]he petitioner substantially prevailed on its FOIL cause of action, and the Town had no reasonable basis for denying access to the responsive documents. Accordingly, the petitioner was entitled to an award of reasonable attorneys’ fees and litigation costs incurred on the FOIL cause of action … . The fact that much of the petitioner’s representation was undertaken by pro bono counsel did not affect the petitioner’s entitlement to reasonable attorneys’ fees and litigation costs under the statute … . Matter of Ateres Bais Yaakov Academy of Rockland v Town of Clarkstown, 2023 NY Slip Op 03692, Second Dept 7-5-23

Practice Point: A party who “substantially prevails” on a FOIL cause action is entitled to attorney’s fees and litigation costs, even when much of the legal work was done by pro bono counsel.

 

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THE JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S ALLEGATION HIS ASSIGNED COUNSEL WAS BEING PAID BY HIS FAMILY; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have, but did not, conduct an inquiry into defendant’s allegation his assigned counsel was being paid by his family:

… Supreme Court violated his right to counsel when it failed to conduct a sufficient inquiry into defendant’s complaint that his assigned counsel accepted payment from his family. … [T]rial courts have the “ongoing duty” to ” ‘carefully evaluate serious complaints about counsel’ ” … . * * *

Here, defendant sent a letter to the court alleging … that his assigned counsel was being paid by his family, which is a serious complaint involving unethical and illegal conduct (see generally County Law § 722-b [4]). Although the court began to engage defense counsel in a discussion concerning defendant’s letter, before defense counsel was able to address the concerns raised by defendant in the letter, the court interjected and said, “You are going to represent [defendant] at trial.” The court then addressed defendant directly and concluded its comments to him by stating … “You are not going to get another attorney.” At no time did the court make any inquiry into defendant’s allegation that his family had paid defense counsel to represent him. … [W]e conclude that the court violated defendant’s right to counsel by failing to make a minimal inquiry concerning his serious complaint … . People v Jackson, 2023 NY Slip Op 03609, Fourth Dept 6-30-23

Practice Point: Here defendant requested new counsel on the ground his assigned attorney was being paid by his family (apparently a violation of County Law). The judge’s failure to inquire into the complaint violated defendant’s right to counsel.

 

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PLAINTIFFS’ ATTORNEY FAILED TO SUBMIT MEDICAL RECORDS REQUESTED BY THE JUDGE FOR MORE THAN A YEAR AFTER THE INQUEST; THE APPLICATION FOR DAMAGES SHOULD NOT HAVE BEEN DENIED ON THAT GROUND; PLAINTIFFS SHOULD NOT BE PENALIZED FOR THE NEGLECT OF THEIR ATTORNEY (SECOND DEPT). ​

The First Department, reversing Supreme Court, determined the application for damages in this personal injury action should not have been denied due to plaintiffs’ counsel’s failure to submit medical records for more than a year after the inquest. Plaintiffs should not be prejudiced by their counsel’s inaction:

Although plaintiffs’ counsel had timely subpoenaed the relevant medical records and those records were apparently delivered to the subpoenaed records room in the courthouse, they were not available at the inquest. Supreme Court therefore reserved decision to give plaintiffs time to submit evidence supporting their damages claim. After a period of more than one year in which plaintiffs’ counsel failed to provide the requested information, Supreme Court issued an order … denying the application for damages on the ground of failure of proof.

Supreme Court improvidently exercised its discretion in denying plaintiffs’ motion to vacate the underlying default. Although we share the court’s concern regarding the extended delay and the inattentiveness of plaintiffs’ former counsel, counsel’s neglect in pursuing his clients’ action should not be permitted to redound to the clients’ detriment … . Counsel did not deny that he failed to respond to communications from the court, but explained that the delays were due to a problem in his firm’s case management system, which did not provide reminders … . These circumstances present a type of law office failure for which the clients should not be penalized , particularly in light of the strong public policy preference for deciding cases on the merits … . In addition, defendants defaulted and therefore will not be prejudiced … . Rosario v General Behr Corp., 2023 NY Slip Op 03560, Second Dept 6-28-23

Practice Point: Here the attorney’s failure to submit medical records requested by the judge after an inquest was not the type of law office failure for which plaintiffs should be penalized. The judge should not have dismissed the application for damages based on counsel’s neglect.

 

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AN ATTORNEY’S REFERENCE IN AN EMAIL TO A NONPARTY AS A “WIFE BEATER” WAS ABSOLUTELY PRIVILEGED AS PERTINENT TO THE DIVORCE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a statement in an email written by an attorney in a divorce action, referring to plaintiff as a wife beater, was pertinent to the divorce action and was absolutely privileged:

The defendant Dina S. Kaplan is an attorney who represented the defendant Eric Dorfman in a divorce action (hereinafter the divorce action). Kaplan allegedly represented to the court in the divorce action, including court personnel, that the plaintiff, an attorney and a nonparty to the divorce action, was the boyfriend of Dorfman’s wife. In an email exchange between Kaplan and Herbert Adler, an attorney representing Dorfman’s wife in the divorce action, Kaplan allegedly made a defamatory statement about the plaintiff, referring to him as a “wife beater . . . who is in criminal prosecution.” In addition to Adler, the email was sent to court personnel and other attorneys. * * *

… [U]nder the extremely liberal test of pertinency, Kaplan’s statement allegedly referring to the plaintiff as a “wife beater . . . who is in criminal prosecution” was pertinent to the divorce action and, thus, is absolutely privileged. The email exchange between Kaplan and Adler was initially focused on a dispute over Dorfman’s financial ability to pay his wife maintenance and child support. The conversation turned, however, to the behavior of the parties to the divorce action while caring for their children, and Kaplan’s statement that the plaintiff is a “wife beater . . . who is in criminal prosecution” was responsive and therefore relevant to the issue of the parties’ behavior … . Under the circumstances, it cannot be said that the statement was “so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame” the plaintiff, who was not among the participants in the conversation, was not otherwise mentioned in the email exchange, and was not even directly identified in the statement … . Davidoff v Kaplan, 2023 NY Slip Op 03450, Second Dept 6-28-23

Practice Point: If a defamatory statement made by a divorce attorney is pertinent to the divorce action, the statement is absolutely privileged.

 

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PLAINTIFF STATED A CLAIM FOR LEGAL MALPRACTICE BASED UPON THE ATTORNEYS’ ALLEGEDLY UNREASONABLE DELAYS IN PROSECUTING AN ACTION AGAINST A CONTRACTOR, RESULTING IN THE INABILITY TO COLLECT THE JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging legal malpractice should not have been dismissed. Plaintiff alleged the attorneys’ delays in prosecuting the action against a contractor resulted in plaintiff’s inability to collect a judgment against the contractor. By the time the judgment was acquired, the contractor had sold its assets and moved out of the country:

… [A]ccepting the facts alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently states a cause of action to recover damages for legal malpractice. The amended complaint alleges that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by engaging in a pattern of undue delay in their prosecution of the underlying action, including by allowing the underlying action to be marked off the active calendar on two occasions and by failing to comply with certain court-ordered deadlines. The amended complaint further alleges that the defendants’ negligence proximately caused the plaintiff to sustain actual and ascertainable damages in that their delays in prosecuting the underlying action prevented him from being able to collect on the judgment that was eventually entered against the contractor … . Contrary to the defendants’ contention, the plaintiff’s allegations relating to proximate cause, including the nature and value of the contractor’s alleged assets and when they were disposed of, were not impermissibly speculative or conclusory … . Ofman v Tenenbaum Berger & Shivers, LLP, 2023 NY Slip Op 03471, Second Dept 6-28-23

Practice Point: Here the complaint stated a legal malpractice claim based upon the attorneys’ alleged unreasonable delays in prosecuting an action against a contractor, resulting in the inability to collect the judgment. The contractor sold its assets and moved out of the country.

 

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THE EMAIL EXCHANGES BETWEEN ATTORNEYS DID NOT CONSTITUTE A VALID SETTLEMENT AGREEMENT AND DID NOT MEET THE STATUTORY REQUIREMENTS OF A STIPULATION OF SETTLEMENT; THE DISSENTERS ARGUED THE EMAIL EXCHANGES EVINCED AN ENFORCEABLE AGREEMENT (THIRD DEPT).

​The Third Department, reversing Surrogate’s Court, determined: (1) the email exchanges between the parties’ attorneys did not constitute a settlement agreement; and (2) to be valid any stipulation of settlement must be placed on the record in open court, reduced to a court order and contained in a writing subscribed by the parties or counsel (not done here). The case concerns a dispute over the distribution of the estate of the deceased between the deceased’s daughter and wife. There was a two-justice dissent which argued a valid settlement agreement had been reached. The dissent made no mention of the statutory requirements for a stipulation of settlement:

Surrogate’s Court erred in finding that a binding agreement was formed, as the parties did not mutually assent to all material terms. To the extent that the daughter’s counsel asserts that the initial email set out an overview of the material terms to which the parties agreed during the ADR session, we note that such verbal out-of-court agreements are insufficient to form the basis for a stipulation of settlement (see CPLR 2104 …). The initial email and the subsequent correspondence also fail to establish that the parties reached an agreement. * * *

We also remind the parties that, to be enforceable, stipulations of settlement require more than just an agreement among the parties. Once the parties to an active litigation reach an agreement, they must (1) place the material terms of such agreement on the record in open court, (2) reduce them to a court order which is then signed and entered or (3) contain them in a writing subscribed by the parties or their counsel (see CPLR 2104 …). Matter of Eckert, 2023 NY Slip Op 03270, Third Dept 6-15-23

Practice Point: Here there was a question whether email exchanges between the parties’ attorneys after a settlement conference formed an enforceable settlement agreement. The majority said “no” and the two dissenters said “yes.” Although the issue does not seem to be determinative in this decision, the majority noted that the statutory requirements for a stipulation of settlement were not met (open court, reduced to an order, writing signed by the parties or counsel).

 

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DEFENDANT WAS WEARING A STUN BELT DURING THE TRIAL WITHOUT THE JUDGE’S OR PROSECUTOR’S KNOWLEDGE; THE MAJORITY HELD THIS WAS NOT A MODE OF PROCEEDINGS ERROR; A TWO-JUDGE DISSENT DISAGREED (CT APP).

The Court of Appeals, over a two-judge dissent, determined the fact that defendant was wearing a stun belt without the knowledge of the judge or the prosecutor was not a mode of proceedings error. However questions remain about whether defendant received effective assistance of counsel (failure to object) remain and a hearing on the motion to vacate the conviction on that ground is required. The dissent argued the stun-belt-error constituted a mode of proceedings error requiring reversal:

It is undisputed that sheriff officials required defendant to wear a stun belt at trial, that neither the People nor the trial court were aware of that fact, and that defendant failed to preserve any argument concerning the stun belt. Because the trial court did not articulate a particularized need for defendant to wear a stun belt, the use of that restraint was error … . The courts below thus did not abuse their discretion by summarily denying the portion of defendant’s CPL 440.10 motion based on his unpreserved assertion of a Buchanan [13 NY3d 1] error, which could have been raised before the trial court.

The courts below erred by summarily denying the portion of defendant’s motion concerning his ineffective assistance of counsel claim. Given the conceded Buchanan violation, factual issues exist concerning trial counsel’s effectiveness. For instance, County Court should determine if counsel had a legitimate explanation for declining to object. There has been no hearing concerning whether defendant voiced his concerns about wearing the stun belt to his trial attorney as he contends … . Further, defendant submitted evidence in support of his motion which raises factual questions as to whether he consented to wearing the stun belt at trial … . Defendant’s ineffective assistance claim should be decided under the applicable standard … on a full record following a hearing … . People v Bradford, 2023 NY Slip Op 03187, CtApp 6-13-23

Practice Point: Before a defendant is required to wear a stun belt during trial, the judge must explain the reasons on the record. Here neither the judge nor the prosecutor was aware defendant was wearing a stun belt. The majority determined the belt did not constitute a mode of proceedings error. The two-judge dissent disagreed.

 

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THE JUDGE DID NOT CONDUCT THE REQUIRED “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO PROCEED PRO SE; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, reversing defendant’s conviction, in a memorandum decision which did not describe the facts, determined the judge did not conduct a “searching inquiry” before allowing defendant to proceed pro se:

The order of the Appellate Division should be reversed, and a new trial ordered. In contrast to People v Duarte (37 NY3d 1218 [2022]), the trial court here recognized defendant as having unequivocally requested to proceed pro se. However, the court failed to conduct the required “‘searching inquiry’ to ensure that the defendant’s waiver [of the right to counsel] is knowing, intelligent, and voluntary” (People v Silburn, 31 NY3d 144, 150 [2018] … ). People v Holmes, 2023 NY Slip Op 03186, CtApp 6-13-23

Practice Point: When a defendant requests to go ahead with a trial without an attorney, the judge must conduct a “searching inquiry” to determine if the waiver of the right to counsel is knowing, intelligent and voluntary. The failure to do so requires and new trial.

 

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IN THIS DEFAMATION ACTION (1) PLAINTIFF WAS DEEMED A LIMITED PUBLIC FIGURE REQUIRING PROOF OF MALICE; (2) SOME STATEMENTS PROTECTED BY LITIGATION PRIVILEGE, QUESTIONS OF FACT WHETHER OTHER STATEMENTS PROTECTED BY PRE-LITIGATION AND FAIR REPORT PRIVILEGES; (3) AMENDMENTS TO THE ANTI-SLAPP STATUTE APPLY ONLY TO CONDUCT AFTER THE AMENDMENTS WENT INTO EFFECT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a dissent, reversing the appellate division in this defamation action, determined: (1) plaintiff music producer (Gottwald) is a limited public figure who must prove defendant singer-songwriter (Sebert) was motivated by malice when claiming Gottwald raped her; (2) whether 20 alleged statements are subject to the pre-litigation privilege must be determined by the jury; and (3) the amendments to the anti-SLAPP statute which went into effect during the course of the lawsuit apply only to conduct after the amendments went into effect (the amendments allow certain damages and attorney’s fees). The opinion is far to comprehensive to fairly summarize here:

[Re: plaintiff’s public-figure status:] By 2014, when Gottwald initiated this defamation action, he was, by his own account, a celebrity—an acclaimed music producer who had achieved enormous success in a high-profile career. As self-described in the complaint, he “has written the most Number One songs of any songwriter ever” and “was named by Billboard as one of the top ten producers of the decade in 2009.” … . * * *

[Re: privilege:] Sebert identifies 25 allegedly defamatory statements that she contends cannot serve as the basis for liability because they are protected by one or more of three privileges: the litigation privilege, the pre-litigation privilege, and the statutory fair report privilege under Civil Rights Law § 74.  * * * We agree that questions of fact exist as to the application of the pre-litigation and fair report privileges—those issues must go to a jury—but disagree as to application of the absolute litigation privilege. * * * Because … five statements fall squarely within the purview of the absolute litigation privilege, they ” ‘cannot serve as the basis for the imposition of liability in a defamation action’ ” … . * * *

[Re: anti-SLAPP statute:] Because Gottwald’s liability attached, if at all, when he chose to continue the defamation suit after the effective date of the statute, any potential calculation of attorney’s fees or other damages begins at the statute’s effective date …”. Gottwald v Sebert, 2023 NY Slip Op 03183, CtApp 6-13-23

​Practice Point: In this defamation opinion, the concepts of “limited public figure,” “litigation, pre-litigation and fair report privilege.” and the application of the amendments to the anti-SLAPP statute are discussed in great detail.

 

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