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ALTHOUGH THE ATTORNEYS IN THIS LEGAL MALPRACTICE ACTION MISSED THE STATUTE OF LIMITATIONS, THE COMPLAINT DID NOT ALLEGE SUFFICIENT FACTS TO DEMONSTRATE THE UNDERLYING LAWSUITS WOULD HAVE SUCCEEDED HAD THEY BEEN TIMELY BROUGHT (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the legal malpractice action should have been dismissed because the complaint did not contain the “but for” allegations. It is not enough to allege defendants missed the statute of limitations, the complaint must also allege facts demonstrating the underlying lawsuits would have succeeded had they been timely brought:

… [T]he plaintiffs alleged that the decedent died after a brief admission to a drug and behavioral treatment facility, that the defendants agreed to represent the plaintiffs in an underlying action against the treatment facility and the medical providers who treated the decedent, that the defendants committed legal malpractice by failing to timely complete service of process in an action commenced in state court and by failing to commence a wrongful death cause of action in federal court before the applicable statute of limitations expired, and that the defendants’ failures resulted in the plaintiffs being unable to recover on their wrongful death causes of action. Absent from the complaint are any factual allegations relating to the basis for the plaintiffs’ purported wrongful death causes of action against the treatment facility or medical providers.

Accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, the complaint failed to set forth facts sufficient to allege that [defendants’] purported negligence proximately caused the plaintiffs to sustain actual and ascertainable damages … . Even when considered with the documents submitted by the plaintiffs in opposition to the motion, the complaint failed to allege any facts tending to show that, but for [defendants’] alleged negligence in failing to timely serve process in the state court action and in failing to timely commence an action in federal court, the plaintiffs would have achieved a more favorable outcome on their wrongful death causes of action … . Buchanan v Law Offs. of Sheldon E. Green, P.C., 2023 NY Slip Op 01979, Second Dept 4-19-23

Practice Point: To sufficiently allege legal malpractice, the complaint must not only allege the attorneys’ negligence, here missing the statute of limitations, but sufficient facts must be alleged to demonstrate the lawsuit would have succeeded had it been timely brought.

See the companion decision: Buchanan v Law Offs. of Sheldon E. Green, P.C., 2023 NY Slip Op 01980, Second Dept 4-19-23

 

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THE ATTORNEY AFFIDAVIT SUBMITTED IN SUPPORT OF THE SUMMARY JUDGMENT MOTION WAS WITHOUT EVIDENTIARY VALUE; THE DEFICIENCIES IN THE ORIGINAL SUBMISSION CANNOT BE CURED IN REPLY; FAILURE TO REGISTER AN APARTMENT WITH THE CITY DHCR AND INCREASING THE RENT DO NOT DEMONSTRATE A FRAUDULENT SCHEME TO DEREGULATE (FIRST DEPT). ​

The First Department, reversing Supreme court, determined: (1) the summary judgment motion should have been supported by plaintiff’s affidavit, not the attorney’s affidavit; (2) papers submitted in reply cannot be used to remedy deficiencies in the original submission; and (3), to demonstrate a fraudulent scheme to deregulate an apartment, it is not enough to show the landlord did not register the apartment with the NYC Division of Housing and Community Renewal (DHCR) and increased the rent:

CPLR 3212(b) states, “A motion for summary judgment shall be supported by affidavit . . . The affidavit shall be by a person having knowledge of the facts.” Plaintiff failed to submit an affidavit. While he submitted his attorney’s affirmation, “[s]uch an affirmation . . . is without evidentiary value” … . Although plaintiff submitted his complaint, it is not verified, so it cannot be used in lieu of an affidavit (see CPLR 105[u] …).

… [I]n Ampim v 160 E. 48th St. Owner II LLC (208 AD3d 1085 [1st Dept 2022]), [we] said, “an increase in rent and failure to register [an] apartment with . . . DHCR . . ., standing alone, are insufficient to establish a colorable claim of a fraudulent scheme to deregulate the apartment” … .

… Plaintiff failed to demonstrate an increase in rent, or that landlord misrepresented the legal regulated rent … .

Plaintiff did show an increase in rent through documents submitted in reply. However, a movant may not use reply papers “to remedy . . . basic deficiencies in [his] prima facie showing” … . Tribbs v 326-338 E 100th LLC, 2023 NY Slip Op 01950, First Dept 4-13-23

Practice Point: The attorney affidavit submitted in support of the summary judgment motion was not based on first-hand knowledge and therefore had no evidentiary value.

Practice Point: Re: a summary judgment motion, deficiencies in the original submissions cannot be cured in reply.

Practice Point: Failure to register an apartment with the NYC DHCR coupled with raising the rent do not demonstrate a fraudulent scheme to deregulate.

 

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DEFENDANT’S ATTORNEY ESSENTIALLY FAILED TO TAKE ANY POSITION ON THE SORA RISK ASSESSMENT; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new SORA hearing, determined defendant did not receive effective assistance of counsel:

“A sex offender facing risk level classification under SORA has a right to the effective assistance of counsel” … . Here, the defendant’s counsel failed to provide “meaningful representation” … , as he “failed to litigate any aspect of the adjudication” … , essentially declining to take any position on the matter. People v Motta, 2023 NY Slip Op 01908, Second Dept, 4-12-23

Practice Point: A defense attorney who fails to take a position in the SORA risk-assessment proceedings does not provide effective assistance of counsel.

 

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DEFENDANT DEMONSTRATED HE WAS NOT REPRESENTED BY THE ATTORNEY WHO PURPORTED TO WAIVE SERVICE OF PROCEES AND PERSONAL JURISDICTION DEFENSES ON BEHALF OF ALL DEFENDANTS; TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined that one foreign defendant (Koukis) demonstrated he was not represented by an attorney (Santamarina) who purported to waive all defenses based on service of process or lack of personal jurisdiction on behalf of all defendants. Supreme Court agreed Koukis demonstrated Santamarina did not represent him, but found personal jurisdiction over Koukis pursuant to CPLR 302(a)2). The First Department held the court did not have personal jurisdiction over Koukis:

The motion court correctly found that there was no basis to conclude that Koukis authorized Santamarina to appear and waive all jurisdictional defenses on his behalf … . … Koukis emailed Santamarina, with a copy to his attorney, specifically stating that “I have not authorized you to represent me in any legal or other matters.” Koukis also averred that he never communicated with Santamarina and that he never represented him, and there is no indication in the record that Koukis was even aware of Santamarina for any significant time prior to his … email. The two … emails referenced by the dissent were not from or to Santamarina and made no mention of any representation by Santamarina. Gibson, Dunn & Crutcher LLP v Koukis, 2023 NY Slip Op 01863, First Dept 4-11-23

​Practice Point: Here defendant demonstrated he was not represented by an attorney who purported to waive service of process and personal jurisdiction defenses on behalf of all defendants.

 

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PLAINTIFF FAILED TO SHOW UP FOR THE SETTLEMENT CONFERENCE IN THIS FORECLOSURE ACTION AND A DEFAULT JUDGMENT WAS GRANTED; IN MOVING TO VACATE THE DEFAULT, PLAINTIFF DID NOT PRESENT SUFFICIENT PROOF OF LAW OFFICE FAILURE AND DID NOT EXPLAIN ITS DELAY IN SEEKING TO VACATE THE DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff did not demonstrate an adequate excuse (law office failure) for not attending the settlement conference and plaintiff’s motion to vacate the default judgment should not have been granted:

… [T]he plaintiff’s allegation of law office failure was conclusory and unsubstantiated. In an affirmation in support of the motion … to vacate the order of dismissal, the plaintiff’s counsel described her office’s standard practices and procedures for receiving and processing notices and orders, and posited that her office had not received notice of the scheduled conference because there were “no notes, scanned images, or calendar steps” in the files that she reviewed. The plaintiff … failed to provide an affidavit from anyone with personal knowledge of the purported law office failure, provide any details regarding such failure, or provide any other evidence of the system’s purported breakdown that led to counsel’s nonappearance at the conference … . Moreover, the plaintiff failed to provide a reasonable excuse for its delay in moving to vacate the order of dismissal … . Since the plaintiff failed to proffer a reasonable excuse its default, it is unnecessary to determine whether the plaintiff demonstrated the existence of a potentially meritorious cause of action (see CPLR 5015[a][1] …). HSBC Bank USA, N.A. v Hutchinson, 2023 NY Slip Op 01782, Second Dept 4-5-23

Practice Point: Here the claim that plaintiff missed the settlement conference due to law office failure was not supported by proof from a person with first hand knowledge. The motion to vacate the default judgment should not have been granted.

 

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ABSENT FRAUD OR COLLUSION, STRICT PRIVITY PRECLUDES THE PROSPECTIVE BENEFICIARIES OF AN ESTATE FROM BRINGING A LEGAL MALPRACTICE ACTION AGAINST THE ATTORNEY WHO PLANNED THE ESTATE; THE ATTORNEY OWED NO DUTY TO THE BENEFICIARIES (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the malpractice action by the prospective beneficiaries of an estate against the attorney who planned the estate should have been dismissed because there was no privity between the beneficiaries and the attorney:

In the context of estate planning malpractice actions, strict privity applies to preclude a third party, such as beneficiaries or prospective beneficiaries like plaintiffs, from asserting a claim against an attorney for professional negligence in the planning of an estate, absent fraud, collusion, malicious acts or other special circumstances … . While plaintiffs argue their claim against defendant attorneys is couched as one for simple negligence, as opposed to legal malpractice, plaintiffs have not pleaded facts to show that defendant attorneys owed plaintiffs a duty of care in the drafting of their client’s will and trust agreement. The strict privity requirement here protects estate planning attorneys against uncertainty and limitless liability in their practice … . Thus, plaintiffs’ negligence claim is unavailing for lack of factual allegations to demonstrate that defendants owed plaintiffs a duty.

Plaintiffs have not pleaded sufficient factual allegations in their amended complaint to indicate that circumstances of fraud, collusion and/or aiding and abetting exist in this case to override the strict privity rule. Plaintiffs have not alleged fraud with requisite specificity as, inter alia, there are no allegations defendants knowingly made material misrepresentations in the will and trust for the purpose of inducing justifiable reliance by their client (since deceased) upon such misrepresentations, and moreover the allegations made do not support favorable inferences in that regard … . Phillips v Murtha, 2023 NY Slip Op 01767, First Dept 4-4-23

Practice Point: Absent fraud or collusion, strict privity precludes a legal malpractice action by prospective beneficiaries of an estate against the attorney who planned the estate. Here the attorney owed no duty to the prospective beneficiaries.

 

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PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discover sanctions imposed by the judge on plaintiff were not warranted:

… Supreme Court improvidently exercised its discretion by imposing the drastic sanction of preclusion upon the plaintiff without affording the plaintiff adequate notice and an opportunity to be heard, including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious. The defendant did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to comply with the interim order, nor did the court make its own motion or include language in the interim order warning that noncompliance would result in sanctions. The court also made its determination without oral argument, such that it is unclear what opportunity the plaintiff had to explain the circumstances of its noncompliance. …

… [E]ven if the plaintiff had been provided with adequate due process, the Supreme Court still would have improvidently exercised its discretion by, inter alia, precluding the plaintiff from serving further demands and from introducing certain documents. The record contains no showing of “a clear pattern of willfulness and contumacious conduct necessary to justify [such] sanctions” … . There is no indication that the plaintiff “repeated[ly] fail[ed] to comply with court-ordered discovery” or “fail[ed] to comply with court-ordered discovery over an extended period of time” … . Instead, this case involves a “single incident of noncompliance” with a court order, which was insufficient to warrant a sanction as drastic as preclusion … , especially given the policy of resolving cases on their merits and the fact that discovery was still ongoing at the time the court made its determination. Korsinsky & Klein, LLP v FHS Consultants, LLC, 2023 NY Slip Op 01667, Second Dept 3-29-23

Practice Point; Before precluding evidence as a discovery sanction, there must be a finding of willful and contumacious conduct and the the sanctioned party must be given a chance to explain the failure to comply with discovery orders.

 

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DEFENDANT’S OFFER TO PROVIDE FALSE TESTIMONY IN A SEPARATE ACTION IS NOT PROTECTED BY THE LITIGATION PRIVILEGE IN THIS RELATED ACTION ALLEGING DEFENDANT’S BREACHED A CONFIDENTIALITY AND NONDISPARAGEMENT AGREEMENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, determined defendant’s motion to dismiss the complaint for failure to state a cause of action should not have been granted. The complaint alleged breach of a confidentiality and nondisparagement agreement (TRB Agreement) which stemmed from a trademark infringement and unfair competition action brought by nonparty Reebok. “… [D]efendant and his attorneys allegedly caused anonymous phone calls to be made to Reebok’s counsel stating that defendant possessed information that TRB [plaintiff] ‘intended to copy Reebok from the get-go.’ Defendant’s attorneys also notified Reebok’s counsel that defendant would comply with a subpoena issued to him. Reebok listed defendant as a witness before trial and detailed defendant’s expected testimony, including allegedly false testimony that TRB intended to create a ‘knockoff’ brand infringing on Reebok’s marks. The description of expected testimony also made clear that defendant had breached the TRB Agreement by disclosing information concerning TRB’s operations and information concerning the Reebok litigation:”

The main issue presented on this appeal is whether plaintiffs’ complaint alleges conduct upon which invocation of the absolute litigation privilege would constitute abuse of the privilege such that its protections should not apply or be withdrawn.

Examination of the applicable law, particularly with respect to plaintiffs’ proposed exception to the privilege, demonstrates that the course of conduct alleged implicates a limited exception analogous to that applied in Posner v Lewis (18 NY3d 566 [2012]) to another absolute privilege. Accordingly, where a party engages in an extortion attempt by threatening to provide false testimony in a separate action if their demands are not accepted, and, following rejection, affirmatively reaches out to the extortion target’s adversaries in the separate litigation, indeed offering to provide false testimony in that action, the absolute litigation privilege will not bar the action. TRB Acquisitions LLC v Yedid, 2023 NY Slip Op 01654, First Dept 3-28-23

Practice Point: Here defendant’s offer to provide false testimony in a separate proceeding was not protected by the litigation privilege in this action alleging defendant’s breach of a confidentiality and nondisparagement agreement.

 

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THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON ALL OF THE ELEMENTS OF PROMOTING A SEXUAL PERFORMANCE OF A CHILD AND IMPROPERLY CROSS-EXAMINED THE DEFENDANT IN THE GRAND JURY PROCEEDINGS; ALTHOUGH DEFENDANT WAS PROPERLY CONVICTED, THE INDICTMENT WAS DISMISSED WITHOUT PREJUDICE (FOURTH DEPT).

The Fourth Department, reversing the conviction after trial and dismissing the indictment (without prejudice), determined the prosecutor did not properly instruct the grand jury on the law and improperly cross-examined the defendant in the grand jury proceedings:

… [T]he prosecutor failed to instruct the grand jury, pursuant to the holding in People v Kent (19 NY3d 290 [2012]), that some “affirmative act” is required to prove the crime, and that “viewing computer images of a sexual performance by a child on a computer does not by itself constitute promotion of such images” (CJI2d[NY] Penal Law § 263.15). Although it is well established that a grand jury “need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law” … , we conclude under the circumstances of this case that the deficiencies in the prosecutor’s charge impaired the integrity of the grand jury proceeding and gave rise to the possibility of prejudice. We further conclude that the potential for prejudice was increased by the prosecutor’s cross-examination of defendant during the grand jury presentation in a manner that was “calculated to unfairly create a distinct implication that [defendant] was lying” … . People v Congdon, 2023 NY Slip Op 01622, Fourth Dept 3-24-23

Practice Point: The grand jury should have been instructed that some affirmative act in addition to simply viewing child pornography of a computer is required for the offense of promoting the sexual performance of a child.

Practice Point: The prosecutor increased the prejudice resulting from the improper instruction on the law by improperly cross-examining the defendant in the grand jury proceeding to imply that the defendant was lying.

Practice Point: Even though the defendant was properly convicted at trial, the flaws in the grand jury proceeding required dismissal of the indictment.

 

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