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PLAINTIFF’S DISCOVERY-RELATED ACTIONS WERE NOT WILLFUL AND CONTUMACIOUS SUCH THAT THE COMPLAINT SHOULD HAVE BEEN DISMISSED; HOWEVER PLAINTIFF’S DISCOVERY DELAYS WARRANTED VACATING THE NOTE OF ISSUE AND PAYMENT OF $3000 TO DEFENDANTS’ ATTORNEY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint in this traffic accident case should not have been dismissed as a discovery sanction. But defendant’s motion to vacate the note of issue due to plaintiff’s delay in disclosing prior relevant injuries should have been granted. In addition the appellate court ordered plaintiff’s attorney to pay defendants’ attorney $3000:

Supreme Court improvidently exercised its discretion in granting the defendants’ motion to the extent of directing dismissal of the complaint pursuant to CPLR 3126(3). Although the plaintiff initially failed to provide authorizations for the release of medical records relating to pertinent injuries which pre-date the subject accident, the plaintiff did provide date-restricted authorizations for the release of medical records relating to pertinent injuries approximately one week after the defendants requested them. … [D]efendants did not clearly demonstrate that the plaintiff’s discovery-related conduct was willful and contumacious … .

However, in light of the plaintiff’s delay in disclosing information about prior injuries that bear on the controversy and would assist preparation for trial … . the Supreme Court should have granted the defendants’ motion to the extent of vacating the note of issue … , directing the plaintiff to provide the defendants with authorizations permitting the release of medical records relating to pertinent injuries which pre-date the subject accident, and directing the plaintiff’s attorney to pay the sum of $3,000 to the defendants’ attorney….. Lopez v Maggies Paratransit Corp., 2022 NY Slip Op 06793, Second Dept 11-30-22

Practice Point: Here in this traffic accident case plaintiff’s delays in providing information about prior relevant injuries warranted vacating the note of issue and payment of $3000 by plaintiff’s attorney to defendants’ attorney.

 

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​ THE DISCHARGED LAW FIRM HANDLED THE PERSONAL INJURY CASE FOR TWO YEARS; ALTHOUGH THE FIRM DID NOT SUBMIT ANY TIME RECORDS, SUPREME COURT ABUSED ITS DISCRETION IN REFUSING TO AWARD THE DISCHARGED FIRM A PORTION OF THE CONTINGENCY FEE AFTER THE CASE SETTLED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court abused its discretion in refusing to award attorney’s fees to a law firm (Gross) which represented the plaintiff in a personal injury case for two years before being discharged. The case ultimately settled:

After being retained, Gross filed a no-fault benefits application, referred the plaintiff to several doctors, scheduled and rescheduled independent medical examinations, and helped the plaintiff obtain a presettlement loan. The principal of Gross also asserted that the firm investigated the accident scene, obtained and reviewed medical records and other relevant documents, and “spen[t] a great deal . . . of time” on the phone with the plaintiff “answering his many questions about his claim.” The plaintiff ultimately discharged Gross. In May 2018, the plaintiff retained nonparty Gregory Spektor & Associates, P.C. (hereinafter Spektor). In December 2018, Spektor filed a summons and complaint in this action on the plaintiff’s behalf. In July 2020, the plaintiff obtained a $100,000 settlement.* * *

… [I]t cannot be said that the services performed by Gross were of no value … . Although Gross failed to submit time records showing the hours allegedly spent investigating and discussing the claim with the plaintiff, Gross submitted evidence showing that it performed various services in connection with the plaintiff’s case over a period in excess of two years, including, but not limited to, ensuring the plaintiff’s appearances for independent medical examinations to determine the extent of his injuries and the need for additional treatment, and obtaining documentation vital to the plaintiff’s case … . Considering the amount of time spent by Gross working on matters pertaining to the plaintiff’s case, the nature of the work performed, and the relative contributions of counsel, we deem it appropriate to award 10% of the net contingency fee to Gross. Jules v David, 2022 NY Slip Op 06696, Second Dept 11-23-22

Practice Point: Supreme Court abused its discretion in refusing to award a discharged law firm a portion of the contingency fee after the case settled. Although the firm did not submit any time records in this personal injury case, it did schedule independent medical exams, review medical records, investigate the accident scene, obtain documents, etc.

 

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THE JUDGE, PROSECUTOR AND DEFENSE COUNSEL AGREED DEFENDANT SHOULD STEP OUT OF THE COURTROOM WHEN HIS JUSTIFICATION DEFENSE WAS DISCUSSED IN A SIDEBAR CONFERENCE; DEFENSE COUNSEL’S AGREEMENT TO HAVE DEFENDANT STEP OUT OF THE COURTROOM WAS NOT A WAIVER OF DEFENDANT’S RIGHT TO BE PRESENT; CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined defendant should have been present for the sidebar conference about the justification defense in this attempted murder by stabbing case. Defendant claimed he had a heart condition triggered by stress which causes his heart to race until he passes out. Defense counsel argued the condition was relevant to the justification defense because defendant felt he had to stab the victim before he passed out to protect himself. Before the issue was discussed the judge, prosecutor and defense counsel agreed the defendant should step out of the courtroom. The judge ruled the evidence of the heart condition could not come in unless the defendant’s testimony established a connection between the condition and the interaction with the victim:

… [T]he subject of the instant sidebar conference clearly implicated defendant’s peculiar factual knowledge such that his participation might have assisted him in advancing his justification defense to the murder and assault counts. The subject of the conference was whether defendant would be permitted to testify as to a medical (heart) condition with regard to his justification defense. During the sidebar conference the court repeatedly implored defense counsel to explain how defendant’s serious medical condition impacted his assessment of his physical safety. Defendant’s presence at the sidebar conference would have afforded him an opportunity to apprise the court, defense counsel and prosecutor of the exact details of his heart condition in order to demonstrate that it affected his assessment of the circumstances he was confronted with prior to the stabbing incident … . * * *

Although the right to be present at a sidebar conference need not be preserved by an objection … , the right may be waived. Such right may be waived either explicitly or implicitly by defendant … . …

… [D]efendant did not waive the right to be present at the sidebar conference. Contrary to the People’s assertion, defendant did not personally waive his right to be present either explicitly or implicitly. At no time did defendant make an affirmative statement on the record that he did not wish to attend the side bar conference. And no one ever asked him directly. … [H]e was commanded to leave the courtroom so that the sidebar conference could take place in his absence. … [A]t no time was defendant made aware that he had the right to be present at the sidebar conference … . …

… [I]n the absence of any record discussion by the court with counsel and the prosecutor regarding defendant’s right to be present at the sidebar conference, defense counsel’s expression of lack of objection to his client absence from the sidebar conference is not an affirmative statement by counsel confirming that defendant himself was waiving his right to be present at the sidebar conference … . People v Girard, 2022 NY Slip Op 06645, First Dept 11-22-22

Practice Point: Defense counsel agreed to have the defendant step out of the courtroom when the justification defense was discussed in a sidebar conference. Defense counsel’s agreement did not constitute a waiver of defendant’s right to be present. The conviction was reversed.

 

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO FILE A SUPPRESSION MOTION; THE FAILURE “INFECTED” THE GUILTY PLEA BECAUSE SUPPRESSION COULD HAVE LED TO DISMISSAL OF SOME OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defense counsel’s failure to make a suppression motion constituted ineffective assistance:

… [W]e conclude that the record establishes that defense counsel could have presented a colorable argument that defendant’s detention was illegal and thus that any evidence obtained as a result thereof should have been suppressed as the fruit of the poisonous tree. One of the officers who initially detained defendant testified at a Huntley/Wade hearing that, prior to defendant’s arrest, one of the victims of a home invasion had described the suspects as two black men in their twenties, one of whom was wearing a hoodie “with some kind of emblem on the front.” About a half-hour later, the officer heard a broadcast of a tip from an unidentified retired police officer. The tip, as testified to at the hearing, reported “two [black] males [in their twenties] inside [a] corner store that possibly looked suspicious” with one that “might” have had “a handgun on his side” and another that was wearing a “teddy bear type hoodie,” which was later described as a hoodie with a teddy bear on the front. Based on that tip, officers responded to the corner store, entered with weapons drawn, and immediately ordered the two men, one of whom was defendant, to raise their hands. The officer testified, however, that the men were not acting suspiciously nor did she observe a weapon when she and her partner entered the store. While handcuffing defendant, the officer for the first time observed a handgun in defendant’s waistband, saw blood on defendant’s hoodie, and obtained statements from defendant. Defendant was thereafter taken for show-up identifications, during which the victims of the prior home invasion identified him as one of the men involved in that incident.

… [I]t cannot be said that a motion seeking suppression on the ground that defendant was unlawfully detained would have had “little or no chance of success” … , and instead those facts demonstrate that defense counsel failed to pursue a “colorable claim[]” that could have led to suppression … . …

… [D]efense counsel prepared such a motion to suppress evidence on that basis, indicated an intent to make that motion, and simply failed to file the motion despite having been twice informed by the court of the need to do so given the People’s refusal to consent to a hearing regarding the legality of the detention without such a motion. …

… [D]efendant’s contention survives his guilty plea inasmuch as the error in failing to seek suppression on that basis infected the plea bargaining process because suppression of the challenged evidence would have resulted in dismissal of at least some of the indictment … . People v Roots, 2022 NY Slip Op 06617, Fourth Dept 11-18-22

Practice Point: Defense counsel was deemed ineffective for failing to file a suppression motion. It worth noting that defense counsel had prepared a motion but failed to file it despite requests by the court and the prosecutor. The failure “infected” the guilty plea because suppression could have resulted in dismissal of some of the indictment.

 

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A CHILD IN A CUSTODY PROCEEDING IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL BY THE ATTORNEY-FOR-THE-CHILD (AFC), WHICH INCLUDES ADVOCATING THE CHILD’S POSITION EVEN IF THE AFC DISAGREES (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the child received ineffective assistance in this modification of custody proceeding. With a couple of exceptions, even if the attorney-for-the-child (AFC) doesn’t agree with it, he or she must argue the child’s position:

… [T]he AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]). “[I]n ascertaining the child’s position, the [AFC] must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances” (22 NYCRR 7.2 [d] [1]). “[I]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests” (22 NYCRR 7.2 [d] [2]). There are two exceptions, not relevant here, where the child lacks the capacity for knowing, voluntary and considered judgment, or following the child’s wishes is likel… y to result in a substantial risk of imminent, serious harm to the child (see 22 NYCRR 7.2 [d] [3]).

… [A] child in an article 6 custody proceeding is entitled to effective assistance of counsel … , which requires the AFC to take an active role in the proceeding … .

Here, the AFC at trial made his client’s wish that there be a change in custody known to the court, but he did not “zealously advocate the child’s position” (22 NYCRR 7.2 [d] …). He did not cross-examine the mother, the police officers, or the school social worker called by the father, and we agree with the AFC on appeal that the trial AFC’s cross-examination of the father was designed to elicit unfavorable testimony related to the father, thus undermining the child’s position . His questioning also seemed designed to show that there was no change in circumstances since the entry of the last order. Further, he submitted an email to the court in response to the mother’s motion to dismiss in which he stated his opinion that there had been no change in circumstances, which again went against his client’s wishes  … . Matter of Sloma v Saya, 2022 NY Slip Op 06587, Fourth Dept 11-18-22

Practice Point: The attorney-for-the-child (AFC), absent two exceptions not relevant to this case, must argue the child’s position in a modification of custody proceeding even if he or she disagrees. Here the AFC didn’t cross-examine witnesses whose testimony was unfavorable to the child’s position and questioned witnesses in a manner which elicited testimony against the child’ position. The child was not afforded effective assistance of counsel.

 

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THE JUDGE IN THIS POST-DIVORCE PROCEEDING ENCOMPASSING FIVE APPEALS, WAS DEEMED TO HAVE MADE MANY RULINGS NOT SUPPORTED BY THE RECORD, IN PART BECAUSE NECESSARY HEARINGS WERE NOT HELD; THE IMPROPER RULINGS INCLUDED A RESTRICTION OF THE ATTORNEY-FOR-THE-CHILD’S (AFC’S) INTERACTIONS WITH THE CHILDREN (FOURTH DEPT).

The Fourth Department, reversing (and modifying) Supreme Court in this post-divorce proceeding encompassing several appeals, determined many of the court’s rulings were not supported by the record, due in part to the court’s failure to hold hearings. The court had imposed “house rules” for the children, refused to hold a Lincoln hearing, made contempt findings, modified father’s visitation, suspended father’s child support obligations, ordered family unification therapy, limited the attorney-for-the-child’s interactions with the children, and made several other rulings with which the appellate division found fault. The decision is far too detailed to fairly summarize here:

The mother and the AFC contend in appeal Nos. 1, 3, and 5 that the court erred in altering the terms of the parties’ custody and visitation arrangement and in imposing its house rules without conducting a hearing to determine the children’s best interests. We agree. We therefore modify the orders in appeal Nos. 1, 3, and 5 accordingly, and we reinstate the provisions of the agreement and remit the matter to Supreme Court for a hearing, including a Lincoln hearing, to determine whether modification of the parties’ custody and visitation arrangement is the children’s best interests.

Where there is “a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children” … , and “[a]ny court in considering questions of child custody must make every effort to determine what is for the best interest of the child[ren], and what will best promote [their] welfare and happiness” … . Consequently, visitation and “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry’ “… , “[u]nless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of” the children’s best interests … . Burns v Grandjean, 2022 NY Slip Op 06577, Fourth Dept 11-18-22

Practice Point: Here the Fourth Department took issue with many, many rulings made by Supreme Court in this post-divorce proceeding. The decision encompassed five appeals and too many issues to fairly summarize. Many of Supreme Court’s rulings were deemed to have been unsupported by record, in large part because necessary hearings were not held.

 

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HERE THE FAILURE TO OPPOSE THE MOTION FOR SUMMARY JUDGMENT WAS DUE TO NEGLECT WHICH DOES NOT WARRANT VACATUR; THE MOTION TO VACATE THE ORDER ENTERED ON PLAINTIFF’S DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate the order entered upon plaintiff’s default should not have been granted:

Pursuant to CPLR 5015(a)(1), “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . excusable default.” “A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” . “Law office failure may qualify as a reasonable excuse for a party’s default if the claim of such failure is supported by a credible” and detailed explanation of the default … . The determination as to what constitutes a reasonable excuse is a matter of the court’s discretion, but mere neglect will not suffice … .

… [A] managing attorney at the law firm representing the plaintiff was notified of the February 28, 2018 adjourned deadline to submit opposition papers to the defendants’ motion, and a member of the firm entered a “follow up docket date” for February 7, 2018, “to ensure that the opposition was being handled” … . However, instead of “follow[ing] up with the managing attorney to make sure the opposition was assigned,” the member of the law firm returned the file to the file room. As the member of the law firm affirmed, “[i]t simply was not addressed properly.” … [T]he plaintiff did not move to vacate the order dated August 29, 2018, for approximately eight months, or 253 days, after being served with the order and notice of entry … .

… [T]he plaintiff’s failure to oppose the defendants’ motion was the equivalent of mere neglect and was therefore insufficient to warrant vacatur … . Sauteanu v BJ’s Wholesale Club, Inc., 2022 NY Slip Op 06509, Second Dept 11-16-22

Practice Point: A motion to vacate an order entered upon a party’s default may be granted on law-office-failure grounds but not if the matter was simply neglected. Here the plaintiff did not move to vacate the order for 253 days after service of the order and notice of entry. The court found the plaintiff’s failure to oppose the summary judgment was due to neglect and the motion to vacate the order should not have been granted.

 

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ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS MAINTENANCE-ARREARS ACTION SHOULD NOT HAVE BEEN AWARDED WITHOUT AN EVIDENTIARY HEARING (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that the award of attorney’s fees and expert witness fees to defendant-wife who sued for and was awarded maintenance arrears:

… Supreme Court erred in awarding attorneys’ fees and expert witness fees requested by the defendant without evaluating the defendant’s claims concerning the extent and value of those services at an evidentiary hearing … . Accordingly, the matter must be remitted to the Supreme Court, Westchester County, for a hearing on those issues and a new determination thereafter of those branches of the defendant’s motions which were for an award of attorneys’ fees and expert fees. Leung v Gose, 2022 NY Slip Op 06476, Second Dept 11-16-22

Practice Point: Here the wife was awarded maintenance arrears but the judge should have held an evidentiary hearing before awarding attorney’s fees and expert witness fees to the wife.

 

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ABSENT FRAUD, COLLUSION OR A MALICIOUS OR TORTIOUS ACT, DEFENDANT ATTORNEYS COULD NOT BE LIABLE FOR ACTING WITHIN THE SCOPE OF THEIR AUTHORITY AS AGENTS OF THE CLIENTS AND ALLEGEDLY ADVISING THEIR CLIENTS TO BREACH A CONTRACT WITH PLAINTIFFS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant attorneys (Jin Hu defendants) could not be liable to third parties (plaintiffs) for allegedly advising their clients (DeVito defendants) to breach a real estate purchase contract:

… “[I]nasmuch as the relationship created between an attorney and his client is that of principal and agent, an attorney is not liable for inducing his [or her] principal to breach a contract with a third person, at least where he [or she] is acting on behalf of his principal within the scope of his [or her] authority” … . “Absent a showing of fraud or collusion, or of a malicious or tortious act, an attorney is not liable to third parties for purported injuries caused by services performed on behalf of a client or advice offered to that client” … .

Here, the allegations in the complaint regarding the conduct of the Jin Hu defendants were impermissibly vague and conclusory … . Additionally, the complaint failed to sufficiently allege that the Jin Hu defendants acted outside the scope of their authority as counsel for the DeVito defendants or engaged in any conduct that could make them liable to the plaintiffs … . Asamblea De Iglesias Christianas, Inc. v DeVito, 2022 NY Slip Op 06456, Second Dept 11-16-22

Practice Point: Absent fraud, collusion of a malicious of tortios act, an attorney, as the agent for the principal (the client) acting within the scope of the attorney’s authority, cannot be liable to the plaintiff for advising the client to breach a contract with the plaintiff.

 

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​ THE GUARDIAN OF THE PERSON AND PROPERTY OF THE INCAPACITATED PERSON (IP) AND THE ATTORNEY APPOINTED TO REPRESENT THE IP WERE PROPERLY REMOVED AND DISCHARGED WITHOUT A TESTIMONIAL HEARING, WHICH IS NOT REQUIRED BY THE MENTAL HYGIENE LAW; THE GUARDIAN AND THE ATTORNEY FAILED TO INVESTIGATE THE BONA FIDES OF THE IP’S MARRIAGE AND THE PRENUPTIAL AGREEMENT (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gische, determined the temporary guardian of the person and property (Mock) and the attorney appointed represent the incapacitated person (IP), Edgar, were properly removed and discharged without a testimonial hearing. The opinion is rich with allegations Edgar was being victimized financially which cannot be fairly summarized here:

On October 2, 2018, Alison Loew, the sister and only sibling of Edgar Valentine Loew, brought a petition for the appointment of an article 81 guardian for her then 74-year-old brother. The petition alleged that Edgar, who is wealthy, but suffers from mental health issues and has some physical limitations, was the victim of systematic financial exploitation by Rachida Naciri. …

A court evaluator (Britt Burner) was appointed on October 2, 2018, appellant Gary Elias was appointed as Edgar’s attorney, and appellant Judy S. Mock was appointed as Edgar’s temporary guardian of the person and property. * * *

The Mental Hygiene Law does not support appellants’ contention that they were entitled to a testimonial hearing in this case before being removed. Mental Hygiene Law § 81.35 provides that a guardian may be removed when she or he “fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” … . A motion on notice, served on the persons specified in Mental Hygiene Law § 81.16 (c), is required but there is no statutory right to a hearing (see Mental Hygiene Law §§ 81.16[c]; 81.35). This relaxed requirement stands in distinction to Mental Hygiene Law § 81.11 (a), which provides that the petition for the appointment of a guardian for an alleged IP, whose liberty interests are at stake, “shall be made only after a hearing” … . The reason a guardian has “no due process right to a full hearing,” nor is a “full blown” hearing necessary for their removal, is that a guardian has no “property interest” to protect … .

Although a guardian cannot be summarily removed in the absence of a fully developed record or without any findings, and a hearing may be required where material facts are disputed … , here the parties had not only fully briefed [the] motion, but the salient facts were also known to the court and largely undisputed. A decision to remove a guardian of the person and property of an IP is within the sound discretion of the trial court … . Matter of Loew, 2022 NY Slip Op 06436, First Dept First Dept 11-15-22

Practice Point: The guardian and the attorney appointed to represent the incapacitated person (IP) were properly removed and discharged without a testimonial hearing, which is not required by the Mental Hygiene Law. The guardian and the attorney failed to investigate the bona fides of the IP’s marriage and prenuptial agreement.

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