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HERE THE BENEFICIARY OF THE WILL WAS IN A CONFIDENTIAL RELATIONSHIP WITH THE DECEDENT AND THE WILL WAS PREPARED BY AN ATTORNEY ASSOCIATED WITH THE BENEFICIARY; THE UNDUE INFLUENCE OBJECTIONS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Surrogate’s Court, determined the objections to probate of the will alleging undue influence should not have been dismissed. Here the will was prepared by an attorney for a beneficiary of the will:

“Generally, [t]he burden of proving undue influence . . . rests with the party asserting its existence . . . . Where, however, there was a confidential or fiduciary relationship between the beneficiary and the decedent, [a]n inference of undue influence arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction . . . , i.e., to prove the transaction fair and free from undue influence” … . Here, there are questions of fact whether the will’s sole beneficiary and her husband were in confidential relationships with decedent and, if so, whether the will was free from undue influence, which preclude judgment as a matter of law.

Further, where, as here, “a will has been prepared by an attorney associated with a beneficiary, an explanation is called for, and it is a question of fact . . . as to whether the proffered explanation is adequate” … . Matter of Cher, 2023 NY Slip Op 05062, Fourth Dept 10-6-23

Practice Point: Here issues of fact re: undue influence were raised by the beneficiary’s confidential relationship with the decedent and by association between the beneficiary and the attorney who drafted the will.

 

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DEFENDANT HAD THE RIGHT TO ASSIGNED COUNSEL IN THIS CIVIL CONTEMPT PROCEEDING STEMMING FROM DEFENDANT’S FAILURE TO PAY CHILD SUPPORT; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY TO SEE IF DEFENDANT QUALIFIED FOR ASSIGNED COUNSEL PRIOR TO ISSUING THE ORDER OF COMMITMENT (SECOND DEPT).

The Second Department, reversing the order of commitment in this matrimonial case, noted that defendant faced possible jail time for civil contempt stemming from a failure to pay child support. Therefore defendant had a right to assigned counsel if found indigent. The judge should have have ascertained defendant’s financial condition:

“In general, the respondent in a civil contempt proceeding who faces the possibility of the imposition of a term of imprisonment, however short, has the right to the assignment of counsel upon a finding of indigence” … . “Moreover, a parent has the statutory right to counsel in a proceeding in which it is alleged that he or she has willfully failed to comply with a prior child support order” … .

Here, the defendant informed the Supreme Court on multiple occasions that he could not afford to retain an attorney. Therefore, prior to issuing an order of commitment, the court should have inquired into the defendant’s current financial circumstances to determine whether he had become eligible for assigned counsel … . Hoffman v Hoffman, 2023 NY Slip Op 04959, Second Dept 10-4-23

Practice Point: Here defendant was found in civil contempt for failure to pay child support. Because the judge was going to order jail-time, defendant had the right to assigned counsel if he could not afford an attorney. The judge should have conducted an inquest to determine defendant’s financial condition before issuing the order of commitment.

 

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MOTHER WAS PROPERLY FOUND TO HAVE DEFAULTED IN THIS CUSTODY MATTER; MOTHER’S ATTORNEY APPEARED BUT DECLINED TO PARTICIPATE; ALTHOUGH AN ORDER ENTERED UPON DEFAULT CANNOT BE APPEALED, CONTESTED MATTERS DETERMINED BY THE TRIAL COURT, HERE WHETHER MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED, CAN BE CONSIDERED UPON APPEAL FROM THE ORDER (FOURTH DEPT). ​

The Fourth Department determined Family Court properly found that mother had defaulted in this custody case, despite the appearance of her attorney, who declined to participate. The Fourth Department noted that, although orders issued pursuant to a default are not appealable, contested issues addressed by the court prior to the order can be appealed:

The court, concluding that the mother had adequate warning that she needed to appear visually at the hearing and ample time to ensure that she could so appear, denied the request for an adjournment and determined that it would proceed by inquest. Inasmuch as the mother’s attorney, although present, thereafter declined to participate in the inquest in the mother’s absence and instead elected to stand mute, we conclude that the court properly determined that the mother’s failure to appear in the manner required constituted a default … .

“[N]otwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from [such an] order [or judgment] brings up for review those ‘matters which were the subject of contest’ before the [trial court]” … . Thus, in this appeal, review is limited to the mother’s contention that the court abused its discretion in denying her attorney’s request for an adjournment … . We reject that contention. Matter of Reardon v Krause, 2023 NY Slip Op 04880, Fourth Dept 9-29-23

Practice Point: Here mother did not appear in the custody case and her attorney appeared but declined to participate. Therefore Family Court properly found mother to be in default.

Practice Point: Although an order entered upon default is not appealable, an appeal from such an order brings up contested matters decided prior to the order. Here the appellate court considered the denial of mother’s attorney’s request for an adjournment.

 

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PLAINTIFF’S DECEDENT’S COUNSEL IN THIS SLIP AND FALL CASE DID NOT SEEK LETTERS OF ADMINISTRATION FOR FIVE YEARS AFTER PLAINTIFF’S DECEDENT’S DEATH; THE ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO CPLR 1021 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the slip and fall action should have been dismissed. The slip and fall occurred in 2013. The plaintiff died in 2015.and the letters of administration were issued in 2021. Plaintiff’s attorney’s failure to move for substitution of a representative within a reasonable time warranted dismissal:

CPLR 1021 provides as follows: “A motion for substitution may be made by the successors or representatives of a party or by any party . . . . If the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate . . . . [I]f the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent’s estate to show cause why the action or appeal should not be dismissed” (emphasis added).

In determining reasonableness, a court should consider the plaintiff’s diligence in seeking substitution, prejudice to the other parties, and whether the action is shown to have potential merit … . Here, the unexplained, more than five-year delay in seeking letters of administration shows a lack of diligence … . Further, no demonstration of a potentially meritorious cause of action was made. Neither the attorney affirmation, complaint, bill of particulars, nor supplemental bill of particulars constituted an affidavit of merit, as counsel had no personal knowledge of the facts of this case … . Since an affidavit of merit was not submitted and no reasonable justification for the delay in petitioning for letters of administration was provided, the Supreme Court should have granted that branch of Nargis’s motion which was pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against it … . Mesniankina v 302 BBA, LLC2023 NY Slip Op 04765, Second Dept 9-27-23

Practice Point: If your client dies and you wait five years before substituting an administrator for the decedent, you risk dismissal pursuant to CPLR 1021.

 

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EVEN THOUGH DEFENDANT’S REQUEST FOR NEW COUNSEL WAS MADE RIGHT BEFORE JURY SELECTION, THE JUDGE SHOULD NOT HAVE DENIED THE REQUEST WITHOUT AN INQUIRY INTO THE REASON FOR IT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have denied defendant’s request for new counsel without an inquiry, despite the timing of the request (right before jury selection):

“Defendant is entitled to a new trial because the court denied his request for new counsel without making any inquiry” into the substance of his request, “and without giving defendant any opportunity to explain the basis for his request” … . It is not dispositive that the request was first raised “[s]hortly before jury selection” … . “Even though the request for new counsel may well have been a delaying tactic, . . . the court had no basis to deny the application without hearing any explanation” … . People v Hernandez-Molina, 2023 NY Slip Op 04732, First Dept 9-26-23

Practice Point: Even if the judge suspects the defendant’s request for new counsel is a delay tactic, an inquiry into the reason for the request must be made, If there is no inquiry, the case will be reversed on appeal.

 

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IN ORDERING A NEW HEARING ON MOTHER’S PETITION TO RELOCATE, THE FIRST DEPARTMENT NOTED THE INADEQUACY OF THE PROOF PRESENTED BY ASSIGNED COUNSEL AT THE FIRST HEARING AND CONSIDERED “NEW” FACTS WHICH WERE NOT PART OF THE RECORD ON APPEAL (FIRST DEPT). ​

The First Department, reversing Family Court over a detailed and comprehensive dissent, determined mother was entitled to a new hearing on her petition to relocate to North Carolina because her assigned counsel did not adequately present evidence of the financial necessity of the move. The dissent would grant the petition to relocate based on the existing record:

… [A]s the attorney for the child argues on this appeal, the mother’s motion to this Court for a stay pending appeal (a motion this Court granted by order entered November 15, 2022 and continued by order entered April 20, 2023), raised legitimate concerns about the adequacy of representation by her assigned counsel at the fact-finding hearing on her relocation petition. Specifically, … the mother attests that counsel failed to adequately present evidence of the financial necessity that supports her decision to relocate. On account of these omissions, as well as the passage of time and intervening events that have occurred since the court’s September 6, 2022 order, we reverse the court’s denial of the mother’s petition and remand for a new hearing to determine what is in the child’s best interests … . Although the facts warranting a new hearing are outside the record on appeal, given that changed circumstances have particular significance in child custody matters, we take notice of the new facts to the extent they indicate that the record is no longer sufficient to determine the mother’s relocation petition … . Matter of Emily F. v Victor P., 2023 NY Slip Op 04634, First Dept 9-14-23

Practice Point: Here the First Department considered “new” facts which were  not part of the record on appeal in determining there should be a new hearing on mother’s petition to relocate.

 

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PLAINTIFF IN THIS LEGAL MALPRACTICE ACTION WAS NOT REPRESENTED BY DEFENDANT ATTORNEY; PLAINTIFF ALLEGED HE WAS REQUIRED TO DEFEND A FAKE CUSTODY PETITION “FILED” BY DEFENDANT ATTORNEY; PLAINTIFF STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE AND A VIOLATION OF JUDICIARY LAW 487 DESPITE THE ABSENCE OF PRIVITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice action brought by a party who was not represented by the defendants should not have been dismissed. Plaintiff alleged the defendant attorney “filed” a fake custody petition for which plaintiff incurred $28,000 in attorney’s fees to defend against:

“While the complaint does not allege an attorney-client relationship between the plaintiff[ ] and the defendants, it sets forth a claim which falls within ‘the narrow exception of fraud, collusion, malicious acts or other special circumstances’ under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity” … .

The Supreme Court further erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487. As relevant here, Judiciary Law § 487 imposes civil liability on any attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive . . . any party.” Here, accepting the plaintiff’s allegations as true and giving the plaintiff the benefit of every possible favorable inference, the amended complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487 … . Garanin v Hiatt. 2023 NY Slip Op 04459, Second Dept 8-30-23

Practice Point: There are, as here, circumstances where a party who was not represented by the attorney can bring legal malpractice and “violation of Judiciary Law 487” actions against the attorney. Plaintiff alleged he was forced to defend against a fake custody petition “filed” by defendant attorney.

 

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HERE THE LANGUAGE OF THE CONTRACT DID NOT MAKE IT “UNMISTAKABLY CLEAR” THAT THE LOSER WOULD PAY THE WINNER’S ATTORNEY’S FEES; THEREFORE THE FEE AWARD WAS REVERSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiffs, who prevailed in this contract action (based upon a license to repair damage to plaintiffs’ property), were not entitled to have the defendants pay their attorney’s fees because the contract did not explicitly so provide:

“Under the general rule, attorney’s fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule” … . “It is not uncommon, however, for parties to a contract to include a promise by one party to hold the other harmless for a particular loss or damage and counsel fees are but another form of damage which may be indemnified in this way” … . “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” (id.). “The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances” .. . “Inasmuch as a promise by one party to a contract to indemnify the other for attorney’s fees incurred in litigation between them is contrary to the well-understood rule that parties are responsible for their own attorney’s fees, the court should not infer a party’s intention to waive the benefit of the rule unless the intention to do so is unmistakably clear from the language of the promise” … .

Here, the license did not provide for attorney’s fees for the instant litigation. Neither of the paragraphs in the license regarding attorney’s fees provided for attorney’s fees in litigation between the parties over alleged breaches of the license. Because the parties did not make “unmistakably clear” in the license that they intended to depart from the general rule that the losing party is not responsible for the winning party’s attorney’s fees, the Supreme Court erred in granting that branch of the plaintiffs’ motion which was for an award of attorney’s fees … . Giannakopoulos v Figame Realty Mgt., 2023 NY Slip Op 04364, Second Dept 8-23-23

Practice Point: The general rule is each party pays its own attorney’s fees. Any contract to the contrary must be “unmistakably clear,” not the case here.

 

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​ IN THIS LEGAL MALPRACTICE ACTION, THE EVIDENCE SUBMITTED BY DEFENDANT ATTORNEYS IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE;” THE PROOF REQUIREMENTS FOR A MOTION TO DISMISS ARE DIFFERENT FROM THE PROOF REQUIREMENTS FOR SUMMARY JUDGMENT; THE MOTION TO DISMSS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss in this legal malpractice case should not have been granted because the evidence offered in support of the motion (a letter from the insurer denying coverage and the insurance policy) was not “documentary evidence.” In addition, the Second Department noted that any deficiencies in the complaint were remedied by plaintiff’s affidavit submitted in opposition to the motion to dismiss. The complaint alleged defendant attorneys failed to timely file an action seeking recovery for personal injuries from a disability-insurance carrier:

“‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . * * *

“A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, [thereby] conclusively establishing a defense as a matter of law” … . “[T]o be considered ‘documentary,’ evidence must be unambiguous and of undisputed authenticity” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … . Maursky v Latham, 2023 NY Slip Op 04115, Second Dept 8-2-23

Practice Point: Irrespective of the possible result of a summary judgment motion, a motion to dismiss which depends on evidence and is not supported by “documentary evidence” will lose.

 

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THE RECORD DOES NOT REFLECT THAT MOTHER IN THIS CHILD-SUPPORT PROCEEDING WAS INFORMED OF HER RIGHT TO COUNSEL, HER RIGHT TO AN ADJOURNMENT TO RETAIN COUNSEL, OR HER WAIVER OF THAT RIGHT; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court, determined the Support Magistrate erred by not, on the record, informing mother of her right to counsel in this proceeding brought by father seeking child support from mother:

The Support Magistrate erred in failing to advise the mother that she had “an absolute right to be represented by counsel at the hearing at [her] own expense, and that [s]he was entitled to an adjournment for the purpose of retaining the services of an attorney” … . The Support Magistrate further erred in proceeding with the hearing without an explicit waiver of the right to counsel from the mother as there is no word or act in the record upon which the Family Court could have concluded that the mother explicitly waived that right … . Matter of Moor v Moor, 2023 NY Slip Op 03918, Second Dept 7-26-23

Practice Point: Mother appeared pro se in this proceeding before a Support Magistrate brought by father for child support from mother. There is nothing on the record indicating mother was informed of her right to counsel, her right to an adjournment to retain counsel, or her waiver of her right to counsel. New hearing ordered.

 

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