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AN ORAL STIPULATION IS INVALID PURSUANT TO DOMESTIC RELATIONS LAW SECION 236(B)(3) AND CANNOT BE RATIFIED; THERE IS NOW AN EVEN SPLIT AMONG THE APPELLATE DIVISION DEPARTMENTS ON THIS ISSUE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noting a split among the appellate-division departments, determined an oral stipulation was invalid pursuant to Domestic Relations Law 236(B)(3):

… [T]he parties’ oral stipulation is not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). Although plaintiff’s attorney stated at the time of the oral stipulation that she “would prefer just to do the oral stipulation,” the statute unambiguously provides that, in order for an agreement regarding maintenance or a distributive award “made before or during the marriage” to be valid and enforceable in a matrimonial action, the agreement must be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” … . We have repeatedly held that oral stipulations do not comply with the statute … . …

… Supreme Court erred in denying the motion on the ground that plaintiff ratified the oral stipulation. The proposition that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) could be upheld if ratified by the parties was implicitly rejected by the Court of Appeals in Matisoff.[90 NY2d 135-136] … . Cole v Hoover, 2023 NY Slip Op 03103, Fourth Dept 6-9-23

Practice Point: An oral stipulation is invalid pursuant to Domestic Relations Law 236(B)(3) and cannot be ratified. There is now an even split among the appellate division departments on this issue.

 

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IN THIS MURDER TRIAL, THE PROSECUTOR REPEATEDLY BROUGHT UP UNCHARGED CRIMES WHICH WERE NOT MENTIONED IN THE PRETRIAL SANDOVAL PROCEEDINGS; THE JUDGE DID NOT INTERVENE; THE DEFENSE DID NOT OBJECT; CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s murder and weapons convictions, determined prosecutorial misconduct and the judge’s failure to intervene (there were no defense objections) required a new trial. The prosecutor repeatedly mentioned uncharged crimes which were not brought up in the Sandoval proceedings:

During their direct case, however, the People elicited testimony from three different witnesses about a prior bad act that had not been included in their Sandoval/Molineux proffer.  * * *

The prosecutor asked defendant whether the incident, which had occurred approximately a decade earlier, involved him shooting a rifle toward another person. Defendant denied this, and he was then questioned as to whether he tried to reload the rifle but was stopped by bystanders, which he also denied. The prosecutor then asked, “is that how you handle your confrontations, you grab a gun and just fire away?” The prosecutor continued the questioning in this vein by asking defendant whether it was “[k]ind of like . . . … [when] you just fired a warning shot out the window, correct?” The prosecutor subsequently cross-examined defendant relative to the incident involving him shooting someone off a motorcycle — which … was not included in the People’s Sandoval/Molineux motion. … [T]he prosecutor inquired as to whether defendant had stated in a recorded jail call that another inmate had urinated in his bed and that, if he caught who did it, he would stab that person in the neck with a pencil. * * *

… [T]he magnitude of the prosecutor’s misconduct was the fact that County Court made no effort to intervene or otherwise attempt to minimize or alleviate the prejudice being caused to defendant…. . People v Nellis, 2023 NY Slip Op 03046, Third Dept 5-8-23

Practice Point: Although the convictions were not against the weight of the evidence, prosecutorial misconduct and the judge’s failure to intervene warranted a new trial. The prosecutor repeatedly brought up uncharged crimes which were not ruled upon in the Sandoval proceedings.

 

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AFTER A DIVORCE PLAINTIFF SUED THE EX-WIFE AND HER ATTORNEYS ALLEGING FALSE ARREST, MALICIOUS PROSECUTION, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF JUDICIARY LAW 487; THOSE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the false arrest, malicious prosecution, intentional infliction of emotional distress and Judiciary Law 487 causes of action against defendant attorneys should have dismissed for failure to state causes of action:

The plaintiff and the defendant Janet P. Lezama were married … . … Lezama commenced an action for a divorce … in which she was represented by the defendants Dana Navins and Kass & Navins, PLLC … . After the divorce … , the plaintiff commenced this action against Lezama and the attorney defendants to recover damages for false arrest, malicious prosecution, negligent infliction of emotional distress, and violation of Judiciary Law § 487 based on allegations that the defendants concocted a “plan” to obtain a divorce against the plaintiff and obtain an excessive “financial settlement.” … [P]laintiff alleged that, as part of this plan, Lezama made false allegations of child abuse and criminal conduct against the plaintiff. * * *

“To be held liable for false arrest, [a civilian] defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his or her own volition” … . Similarly, to be held liable for malicious prosecution, it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act … . “Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney” … . * * *

With respect to the intentional infliction of emotional distress cause of action, the improper conduct alleged was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” … . With respect to the Judiciary Law § 487 cause of action, the plaintiff failed to allege with specificity any material misstatements of fact made by the attorney defendants in the divorce action with the intent to deceive that court … . Tueme v Lezama, 2023 NY Slip Op 03036, Second Dept 6-7-23

Practice Point: The complaint did not state causes of action for false arrest, malicious prosecution, intentional infliction of emotional distress or violation of Judiciary Law 487, criteria explained.

 

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THE AWARD OF COUNSEL FEES TO MOTHER IN THIS MODIFICATION OF CUSTODY PROCEEDING WAS AN ABUSE OF DISCRETION; FATHER WAS NOT GIVEN ADEQUATE NOTICE OF ANY FRIVOLOUS CONDUCT; THE FINANCIAL CIRCUMSTANCES OF THE PARTIES WERE NOT CONSIDERED; THE RELEVANT REGULATORY AND STATUTORY CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have awarded counsel fees to mother. Mother brought an action for modification of a custody order on the ground father had lied about the method of transportation he used to go to Alabama with the child. Apparently father told mother they were going to drive, when in fact they flew. Mother was awarded $25,000 in counsel fees:

… Supreme Court permitted the mother to make a written application for counsel fees, [but] the court did not state whether the application should be made under 22 NYCRR 130-1.1….[T]he court did not … make a finding that the father’s conduct was “frivolous” within the meaning of 22 NYCRR 130-1.1. … [T]o the extent the court granted the mother’s application for an award of counsel fees pursuant to 22 NYCRR 130-1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard” … .

… [T]o the extent that the Supreme Court granted the mother’s application for an award of counsel fees under 22 NYCRR 130-1.1, the court improperly based its determination to grant the application, in part, on the father’s act of lying to the mother about flying to Alabama with the parties’ child, since this conduct occurred outside of the proceeding before the court … . * * *

… [T]o the extent that the Supreme Court granted the mother’s application for an award of counsel fees pursuant to Domestic Relations Law § 237(b), the court did not adequately consider the disparate financial circumstances of the parties … . LeBoeuf v Greene, 2023 NY Slip Op 02870, Second Dept 5-31-23

Practice Point: Here the award of counsel fees was not appropriate under “frivolous conduct” or “financial circumstances” criteria. The relevant regulatory and statutory requirements for a counsel-fees award are explained in some depth.

 

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AN ANSWER OR A COMPLAINT VERIFIED BY AN ATTORNEY DOES NOT PROVE THE CONTENTS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, noted that an answer verified by an attorney (as opposed to the defendant) and a complaint verified by an attorney (as opposed to the plaintiff) do not prove the contents:

… [A]n answer verified by an attorney is insufficient to demonstrate that the defendant has a potentially meritorious defense … . …

… [A]lthough a verified complaint “may be used as the affidavit of the facts constituting the claim,” the complaint “must contain evidentiary facts from one with personal knowledge since a pleading verified by an attorney pursuant to CPLR 3020(d)(3) is insufficient to establish its merits” … . Since the complaint in this case was verified only by the plaintiff’s attorney, and not by the plaintiff, the plaintiff could not rely on its contents to supply proof of the facts constituting the claim. Pemberton v Montoya, 2023 NY Slip Op 02674, Second Dept 5-17-23

Practice Point: Answers and complaints verified by the attorney and not by the party do not prove the contents.

 

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IN THIS TRAFFIC ACCIDENT CASE WHERE “SERIOUS INJURY” WAS AN ISSUE, VIDEO SURVEILLANCE OF PLAINTIFF TAKEN BEFORE THE DEPOSITION AND AFTER A DISCOVERY ORDER WAS PRECLUDED FROM BOTH THE SUMMARY JUDGMENT STAGE AND TRIAL; THERE IS NO SPECIFIC DEADLINE FOR PROVIDING VIDEO SURVEILLANCE GATHERED AFTER THE DEPOSITION; THE POST-DEPOSITION VIDEO SURVEILLANCE WAS NOT PRECLUDED (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Dillon, determined that video surveillance of the plaintiff taken prior to the deposition in this traffic accident case, and after a discovery order requiring disclosure of video surveillance had been issued, could not be used in support of a summary judgment motion re: “serious injury” or at trial. However, video surveillance taken after the deposition need not be provided to the plaintiff by any specific deadline and was not precluded:

… [W]e conclude that the defendant’s noncompliance with the plaintiff’s discovery notice and two court orders, over an extended period of time, was willful and strategic with regard to the [pre-deposition] surveillance video. … [T]he defendant should have been precluded from using the … surveillance video of the plaintiff …, as it was not disclosed prior to the plaintiff’s deposition … . * * *

CPLR 3101(i) contains no language prohibiting the acquisition of surveillance video of a party after that party has testified at a deposition. Nor does any decisional authority. Indeed, CPLR 3101(h) recognizes that disclosure is a continuing obligation, requiring parties to amend or supplement discovery responses when later information is obtained that renders an earlier response inaccurate or incomplete when made or when the prior response, though correct and complete when made, is materially no longer so. And parties are not required to be more forthcoming with surveillance videos than they would with any ordinary discovery material under CPLR 3101(a) … .

That said, CPLR 3101(i) provides no fixed deadline for the disclosure of post-deposition surveillance video footage … . Rather, trial courts may regulate issues of timing through their preliminary and compliance conference orders … , subject to their authority and discretion to manage their calendars and determine whether to preclude evidence under CPLR 3126(2) for any noncompliance with court-imposed deadlines … . Pizzo v Lustig, 2023 NY Slip Op 02541, Second Dept 5-10-23

Practice Point: Here surveillance video of the plaintiff which was gathered before the deposition and after a disclosure order was precluded from both the summary judgment stage and the trial. There is no specific deadline for turning over video surveillance of the plaintiff gathered after deposition and that video evidence was not precluded.

 

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THE DEPRAVED INDIFFERENCE MURDER JURY INSTRUCTION DID NOT PROPERLY EXPLAIN THAT DEPRAVED INDIFFERENCE IS THE DEFENDANT’S MENTAL STATE AT THE TIME OF THE CRIME, NOT THE OBJECTIVE CIRCUMSTANCES UNDER WHICH THE HOMICIDE OCCURRED; APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (THIRD DEPT).

The Third Department (1) granted the writ of coram nobis based upon appellate counsel’s failure to raise the issue, and (2) ordered a new trial on the second degree murder charge because the jury instruction on depraved indifference was defective. Although the issue was not preserved, the Third Department considered it in the interest of justice:

Defendant asserts that County Court’s instructions to the jury regarding depraved indifference murder were consistent with the overruled objective standard set forth in People v Register (60 NY2d 270 [1983] …), and therefore the court’s instructions failed to explain the requisite culpable mental state as required by People v Feingold (7 NY3d 288 [2006]). We agree. In discharging its duty to deliver a charge to the jury, “[a] court must instruct the jury regarding both the ‘fundamental legal principles applicable to criminal cases in general’ and those ‘material legal principles applicable to the particular case’ ” (… CPL 300.10 [1], [2]). At the time of defendant’s trial, the Court of Appeals had already held that “depraved indifference to human life is a culpable mental state” … . As a result, “under Feingold, it is not the circumstances under which the homicide occurred that determines whether [a] defendant is guilty of depraved indifference murder, but rather [the] defendant’s mental state at the time the crime occurred” … .

Upon our review of the record, which reflects that County Court had twice instructed the jury with the overruled objective standard, “the jury charge did not unambiguously state that depraved indifference was the culpable mental state for the crime with which defendant was charged, [and therefore] we cannot conclude that the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at a decision” … . People v Weaver, 2023 NY Slip Op 02352, Third Dept 5-4-23

Practice Point: The depraved indifference jury instruction was similar to the overruled objective standard requiring a new trial. Depraved indifference is the defendant’s mental state at the time of the crime, not the circumstances of the commission of the homicide.

Practice Point: Although the issue was not preserved, appellate counsel was ineffective for failing to raise it on appeal. Here the writ of coram nobis was granted, the conviction reversed and a new trial ordered.

 

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THE MOTION TO VACATE THE DEFAULT ON LAW-OFFICE-FAILURE GROUNDS SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s motion to vacate the default on law-office-failure grounds should have been granted:

Plaintiff established a reasonable excuse for his default in failing to timely file his cross motion and opposition to defendants’ motion for summary judgment. Plaintiff’s counsel stated that he mistakenly believed that the papers could be filed at any time on the return date of December 15, 2021, and that the e-filing at 10:58 p.m. on that date was timely, despite the fact that the papers were, in fact, due to be filed two days before the return date. Thus, the default resulted from law office failure, which a court may excuse in its discretion (CPLR 2005 …). Moreover, there was no evidence that the default was deliberate or part of a pattern of dilatory conduct by plaintiff … .

Although plaintiff did fail to provide defendants with time to reply to his cross motion, thus causing prejudice to them, this error should have been remedied by granting defendants a brief adjournment, in view of the strong public policy of resolving cases on the merits, rather than by granting a default judgment … . The record also raises issues about defendants’ own conduct in connection with their motion, namely their submission of the motion for summary judgment just a few days before the court-imposed deadline for complying with a subpoena issued by plaintiff, and their failure to comply with an order directing production of responsive documents.

Furthermore, plaintiff made a prima facie showing of a meritorious claim … . Giordano v Giordano, 2023 NY Slip Op 02381, First Dept 5-4-23

Practice Point: Here law-office-failure was deemed an adequate ground for vacating the default judgment. Any prejudice caused by the late filing of motion papers could have been avoided by a brief adjournment.

 

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PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED; HER TESTIMONY ABOUT HER ALLEGED CONDUCT AT THE INDEPENDENT MEDICAL EXAMINATION (IME) WOULD HAVE BEEN CUMULATIVE AND DEFENDANTS COULD NOT SHOW THE IME WAS COMPROMISED IN ANY WAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s counsel should not have been disqualification based upon her alleged interference with the independent medical examination (IME). Defendants did not demonstrate counsel’s testimony concerning the IME was necessary, given the plaintiff’s and physician’s ability to testify:

… [D]isqualification is required “only where the testimony by the attorney is considered necessary and prejudicial to plaintiffs’ interests” … .

… Although defendants maintain that they have a right to call plaintiff’s counsel as a witness based on the knowledge she obtained at the IME, and therefore her disqualification under Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7 is required, defendants have not established that counsel’s testimony would be necessary to their defense and not cumulative of the testimony that could be provided by the examining physician and plaintiff herself … .

The examining physician completed a “meaningful examination” of plaintiff at the IME, reflected by the IME report in which he was able to opine with a reasonable degree of medical certainty as to the genesis of plaintiff’s symptoms, and defendants have not established that they were prejudiced by the contents of the report based on counsel’s alleged intrusions … . To the extent that further information is required to prepare a defense, the remedy is not disqualification of opposing counsel but rather to permit defendants to seek further discovery to obtain that information … . Domingo v 541 Operating Corp., 2023 NY Slip Op 02175, First Dept 4-27-23

Practice Point: Defendants alleged plaintiff’s counsel’s behavior during the independent medical examination (IME) required her disqualification because defendants needed to call her as a witness to IME proceedings. The First Department held that counsel’s testimony about the IME was not necessary (cumulative to plaintiff’s and the physician’s testimony) and defendants did not show any prejudice stemming from counsel’s alleged conduct. Therefore plaintiff’s counsel and her firm should not have been disqualified.

 

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​THE ARBITRATOR’S AWARD OF EXCESSIVE ATTORNEY’S FEES WAS IRRATIONAL AND WARRANTED VACATION OF THE ENTIRE ARBITRATION AWARD (SECOND DEPT),

The Second Department, reversing Supreme Court, determined the attorney’s fee awarded by the arbitrator was excessive and warranted vacation of the entire arbitration award:

… [T]he arbitrator’s excessive award of attorneys’ fees in the sum of $11,307 was irrational because it was not supported by any proof. The arbitrator issued an award in the petitioner’s favor upon a finding that Surgery Center defaulted in answering the demand for arbitration. After awarding the petitioner damages in the principal sum of $22,614.89, plus interest, the arbitrator proceeded to award attorneys’ fees in the sum of $11,307, which is equal to 50% of the damages award. On the issue of attorneys’ fees, the petitioner submitted only the service agreements, which contained identical provisions stating that “[i]f [the petitioner] prevails in any litigation or arbitration between the parties, [Surgery Center] shall pay [the petitioner’s] legal fees,” and a letter of engagement between the petitioner and its counsel, which stated that the petitioner’s “collection matters will be handled on a contingency basis of one third of all amounts recovered or whatever legal fees are awarded, whichever is greater.” The petitioner’s counsel did not submit, and the arbitrator did not consider, any evidence as to the hours of legal work by the petitioner’s counsel or the hourly rate. Although the arbitrator stated that he was awarding the sum of $11,307 in attorneys’ fees “as provided for in the agreement between the parties,” there was no proof that Surgery Center agreed to unlimited or unreasonable fees, and no proof that Surgery Center agreed to the fee arrangement that the petitioner made with its counsel. Moreover, the award of attorneys’ fees was contrary to the petitioner’s agreement with its counsel. As such, the arbitrator’s award of attorneys’ fees was irrational … .

Further, the arbitrator’s award of attorneys’ fees violates the strong public policy against excessive fees, e.g., fee arrangements “where the amount becomes large enough to be out of all proportion to the value of the professional services rendered” … .

Under the circumstances present here, where the award of attorneys’ fees was clearly irrational and contrary to public policy, vacatur of the entire arbitration award is warranted … . Matter of Briscoe Protective, LLC v North Fork Surgery Ctr., LLC, 2023 NY Slip Op 02120, Second Dept 4-26-23

Practice Point: Here there was no support in the record for the attorney’s fee award, which was deemed excessive. Therefore the attorney’s fee award was irrational and warranted vacation of the entire arbitration award.

 

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