Attorneys – Page 32 – New York Appellate Digest

PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS BUT DID NOT WARRANT SUPREME COURT’S STRIKING THE COMPLAINT; THE APPELLATE DIVISION IMPOSED EVIDENTIARY SANCTIONS AND ORDERED PLAINTIFF’S COUNSEL TO PAY DEFENDANT $3000 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, agreed plaintiff’s failure to comply with discovery orders was willful and contumacious, but determined striking the complaint was too severe a sanction. The appellate division’s sanctions included ordering plaintiff’s counsel to pay defendant $3000:

… [T]he record demonstrates that the plaintiff violated court orders directing her to appear for a continued deposition by a certain date, to provide a full set of copies of photographs that she referenced during her first deposition or provide an affidavit as to the nonexistence of those photographs, and to execute authorizations for certain medical providers, a pattern that supports an inference of willful and contumacious behavior … . Furthermore, the plaintiff’s procedural objection to the defendant’s motion was without merit. However, under the circumstances, we find that the striking of the complaint was too drastic a remedy … . Accordingly, that branch of the defendant’s motion which was pursuant to CPLR 3126 to strike the complaint should have been granted only to the extent of (1) precluding the plaintiff from using at trial any photograph that was not produced in response to the defendant’s discovery demands, (2) directing the plaintiff to provide the defendant with medical authorizations for Jamaica Hospital, and (3) directing the plaintiff’s counsel to personally pay the sum of $3,000 as a sanction to the defendant … . Castillo v Charles, 2022 NY Slip Op 06103, Second Dept 11-2-22

Practice Point: Here the appellate division found plaintiff’s failure to comply with discovery orders willful and contumacious but did not agree with Supreme Court’s striking of the complaint. The appellate court imposed evidentiary sanctions and ordered plaintiff’s counsel to pay defendant $3000.

November 2, 2022

Attorneys, Family Law

IN THIS DIVORCE PROCEEDING, IT WAS AN ABUSE OF DISCRETION TO DENY INTERIM ATTORNEY’S FEES TO THE NONMONIED SPOUSE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined interim attorney’s fees should have been awarded to the nonmonied spouse:

Supreme Court improperly referred to the trial court that branch of the plaintiff’s cross motion which was for an award of interim counsel fees (see Domestic Relations Law § 237[a] …). “Because of the importance of such awards to the fundamental fairness of the proceedings, . . . an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied—or deferred until after the trial, which functions as a denial—without good cause, articulated by the court in a written decision” … . Here, the court erred in summarily referring that branch of the plaintiff’s cross motion which was for an award of interim counsel fees to the trial court, which functioned as a denial of that relief, and failed to articulate any reasons, much less good cause, for that determination. The evidence submitted by the plaintiff demonstrates that she is the nonmonied spouse, as the defendant earned five to seven times more income than the plaintiff in recent years … . While the defendant argues that the plaintiff has funds available to her, the plaintiff “cannot be expected to exhaust all, or a large portion, of the finite resources available to her in order to pay her attorneys, particularly when the [defendant] is able to pay his own legal fees without any substantial impact upon his lifestyle” … . Fugazy v Fugazy, 2022 NY Slip Op 06115, Second Dept 11-2-22

Practice Point: Here in this divorce action it was deemed an abuse of discretion to, without explanation, deny interim attorney’s fees to the nonmonied spouse.

November 2, 2022

Attorneys, Contract Law, Corporation Law

IN THIS BREACH OF CONTRACT SUIT CONCERNING SHARING ATTORNEY’S FEES, THE COMPLAINT DID NOT ALLEGE SUFFICIENT FACTS TO STATE A CAUSE OF ACTION AGAINST AN INDIVIDUAL ATTORNEY, AS OPPOSED TO THE ATTORNEY’S FIRM (SECOND DEPT).

The Second Department, in this breach of contract action, determined the complaint did not allege sufficient facts to state a cause of action against an attorney (Lefft) as an individual, as opposed to against the attorney’s law firm:

“As a general rule, the law treats corporations as having an existence separate and distinct from that of their shareholders and, consequently, will not impose liability upon shareholders for the acts of the corporation” ( … Business Corporation Law § 1505). “In order for a plaintiff to state a viable claim against a shareholder of a corporation in his or her individual capacity for actions purportedly taken on behalf of the corporation, [the] plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation and ‘abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice'” … .

Here, while the complaint alleged that Leftt had authority to make decisions on behalf of the firm, and that Leftt “ratified” both that the plaintiffs held an “of counsel” position with the firm, as well as the compensation arrangement … , the complaint does not allege that Leftt exercised “complete dominion and control over” the firm, or otherwise “abused the privilege of doing business in the corporate form” that would form the basis for personal liability … . Hymowitz v Hoang Q. Nguyen, 2022 NY Slip Op 05997, Second Dept 10-26-22

Practice Point: To assert that a shareholder is personally liable for the conduct of the corporation (here a law firm), the complaint must allege the shareholder exercised complete dominion and control over the corporation.

October 26, 2022

Appeals, Attorneys, Criminal Law, Judges

THE DEFENDANT WAS REPRESENTED AT TRIAL BUT REPRESENTED HIMSELF IN PRETRIAL PROCEEDINGS; THE JUDGE NEVER ADEQUATELY EXPLAINED THE RISKS OF REPRESENTING ONESELF OR THE DIFFERENCE BETWEEN AN ATTORNEY ACTING AS A “LEGAL ADVISOR” TO THE DEFENDANT AND AN ATTORNEY WHO “REPRESENTS” THE DEFENDANT; CONVICTION REVERSED AND MATTER REMITTED TO REPEAT PRETRIAL PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the appellate division, determined the judge never adequately explained to the defendant the risks associated with representing himself, and the judge did not explain the difference between an attorney who acts as a “legal advisor” to the defendant as opposed to an attorney who “represents” the defendant. Although the defendant was represented at trial, he was not represented during much of the pretrial proceedings. The matter was remitted to repeat the pretrial proceedings:

… [T]he court’s record exploration of the issue did not warn defendant of the risks of proceeding pro se or apprise him of the importance of a lawyer in the adversarial system, nor does the record as a whole demonstrate that defendant effectively waived his right to counsel. Initially, the court conducted no discussion whatsoever of these issues before stating that defendant was representing himself … . Although the court later told defendant that it was “not a great idea” to represent himself, that defendant was putting himself “in a very bad position,” and that a lawyer would have knowledge of criminal procedure that defendant did not, these brief, generalized warnings do not satisfy the requirement for a searching inquiry … . * * *

… [W]hen the court, in its discretion, permits standby counsel … , it should explain to the defendant the court’s rules regarding the role of a legal advisor or standby counsel and how that role differs from representation by an attorney. People v Baines, 2022 NY Slip Op 05919, CtApp 10-24-22

Practice Point: When a defendant seeks to represent himself, the judge must adequately explain the associated risks, as well as the difference between an attorney who acts as a “legal advisor” to the defendant and an attorney who “represents” the defendant. Here the defendant was represented at trial but not during some of the pretrial proceedings. The matter was remitted to repeat the pretrial proceedings.

October 20, 2022

Attorneys, Contract Law, Partnership Law

THE INDEMNIFICATION CLAUSE IN THE PARTNERSHIP AGREEMENT DID NOT INCLUDE “UNMISTAKABLY CLEAR” LANGUAGE INDICATING THE WAIVER OF THE “AMERICAN RULE” REQUIRING EACH PARTY TO PAY THAT PARTY’S OWN ATTORNEY’S FEES; PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES ASSOCIATED WITH DEFENDANT’S UNSUCCESSFUL DISSOLUTION ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the appellate division, determined the indemnification clause in the partnership agreement did not serve to waive the “American Rule” that each party is responsible for that party’s own attorney’s fees. The indemnification clause states: “The Partnership and the other Partners shall be indemnified and held harmless by each Partner from and against any and all claims, demands, liabilities, costs, damages, expenses and causes of action of any nature whatsoever arising out of or incidental to any act performed by a Partner which is not performed in good faith or is not reasonably believed by such Partner to be in the best interests of the Partnership and within the scope of authority conferred upon such Partner under this Agreement, or which arises out of the fraud, bad faith, willful misconduct or negligence of such Partner.” Here defendant had brought an unsuccessful dissolution action and plaintiff argued defendant was obligated to pay plaintiff’s attorney’s fees because the indemnification clause waived the American Rule:

Under the American 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” … . The American Rule is intended to increase “free access to the courts” for those who would otherwise be discouraged from seeking “judicial redress of wrongs” for fear of having to pay a defendant’s attorney’s fees … . …

The Rule is straightforward enough, but in the context of private agreements to avoid the Rule, courts have had to determine the intent of vague fee-shifting language and broad indemnification provisions that do not explicitly allow for the prevailing party in an action between contracting parties to collect attorney’s fees … .. To the extent that some of these decisions presume that broadly worded indemnification provisions by their nature are intended to cover attorney’s fees in direct party actions, they deviate from this Court’s exacting standard that the agreement must contain “unmistakably clear” language of the parties’ intent to encompass such actions … . * * *

Here, the indemnification provision makes no explicit mention that partners may recoup attorney’s fees in an action on the contract. Nor is there any basis to infer the provision is limited to actions between the partners. Sage Sys., Inc. v Liss, 2022 NY Slip Op 05918, CtApp 10-20-22

Practice Point: Unless “unmistakably clear” language in a contract indicates an one party’s agreement to pay another party’s attorney’s fees, the American Rule applies and each party pays that party’s own attorney’s fees.

October 20, 2022

Attorneys, Civil Procedure, Foreclosure

DEFENDANT WAIVED THE LACK-OF-PERSONAL-JURISDICTION DEFENSE BY COUNSEL’S FILING A NOTICE OF APPEARANCE WITHOUT RAISING THE JURISDICTION OBJECTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant waived a lack-of-personal-jurisdiction defense by counsel’s filing a notice of appearance without raising the jurisdictional objection:

“‘By statute, a party may appear in an action by attorney (CPLR 321), and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction'” … . Here, the defendant appeared in the action by its counsel’s filing of the notice of appearance … , and neither the defendant nor its attorney moved to dismiss the complaint for lack of personal jurisdiction at that time or asserted lack of personal jurisdiction in a responsive pleading. Thus, the defendant waived any objection based on lack of personal jurisdiction by failing to move to dismiss the complaint on this ground at the time its counsel filed a notice of appearance in the action or to serve an answer which raised this jurisdictional objection … . Capital One N.A. v Ezkor, 2022 NY Slip Op 05829, Second Dept 10-19-22

Practice Point: Counsel’s filing a notice of appearance without raising a lack-of-personal-jurisdiction objection waives the objection.

October 19, 2022

Appeals, Attorneys, Criminal Law

DEFENSE COUNSEL WAITED UNTIL AFTER THE PROSECUTOR MADE SEVERAL ARGUABLY IMPROPER REMARKS IN SUMMATION BEFORE OBJECTING “TO ALL OF THIS;” THE OBJECTION WAS DEEMED UNTIMELY, VAGUE, AMBIGUOUS, GENERAL AND NONSPECIFIC; THEREFORE THE ISSUES RAISED BY THE PROSECUTOR’S REMARKS WERE NOT PRESERVED FOR APPEAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, over an extensive two-justice dissent, determined defense counsel did not make timely objections to remarks made by the prosecutor in summation. After several arguably improper comments by the prosecutor, defense counsel objected “to all of this.” The judge struck the only last of the prosecutor’s remarks. After the jury was charged and deliberating, defense counsel raised objections to several other remarks made by the prosecutor which were denied as untimely. The Second Department agreed the objections were not timely or specific and affirmed defendant’s conviction:

The objection of defense counsel most relevant to this appeal was to “all of this,” which was interposed only after the prosecutor likened a hypodermic needle to a dangerous instrument. The objection, as interposed, suffers from a number of problems in failing to preserve the issues now raised on appeal. First, the objection was vague and ambiguous. Second, it was untimely. Third, its language was general and nonspecific. The preservation rules … , requiring that objections be timely and specific rather than untimely and general, are basic, well-understood, and time-tested concepts, which should prompt no dispute in their application to this appellate record.

… The prosecutor had been speaking at some length, for a total of 28 uninterrupted sentences, before defense counsel interposed the objection at issue here. …

… As to [the] objection and its timing, the Supreme Court understandably treated it as applying to the last occurring statement of the prosecutor … . …

… For preservation, the defendant’s objection was … general, as it did not identify to the Supreme Court any particular argument or remark by the prosecutor or any specific basis. The basis for the objection was not explained, rendering the entire objection general and insufficient for preservation purposes … . …

Defense counsel initiated further colloquy with the Supreme Court about the subject objection after the jury had been charged and after the jury had begun its deliberations. By then, counsel’s objection was clearly untimely, as there was no longer an opportunity for the court to promptly make a curative ruling to the jury, had one even been indicated. People v Adorno, 2022 NY Slip Op 05856, Second Dept 10-19-22

Practice Point: The Second Department used this case to explain that, in order to preserve issues for appeal, objections must be timely and specific such that the trial court has the opportunity to address them. Here the prosecutor made several arguably improper remarks in summation before defense counsel objected “to all of this.” Defense counsel didn’t specify the nature of the objections until after the jury started deliberations. That was too late.

October 19, 2022

Attorneys, Civil Procedure, Judges

THE PARTIES HAD ALREADY STIPULATED TO RESTORE THE ACTION TO THE CALENDAR; THE JUDGE SHOULD HAVE GRANTED PLAINTIFF’S MOTION TO VACATE THE DISMISSAL OF THE ACTION FOR FAILURE TO APPEAR AT CONFERENCES OR OUTLINE REMAINING DISCOVERY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to vacate the order dismissing the action based on plaintiff’s failure to appear at conferences or file a stipulation outlining discovery should have been granted. The parties had already stipulated to restore the action to the calendar and the court should have enforced the stipulation:

The motion court improvidently exercised its discretion when it denied plaintiff’s motion to vacate the order for failure to appear at conferences or to file a stipulation outlining the remaining discovery … . Defendants had already stipulated to restore the matter to the calendar, and stipulations between the parties are binding on the parties and generally enforced by the courts … . Moreover, the assertion by plaintiff’s counsel that two of the court’s notices were inadvertently routed to counsel’s spam folder constitutes an excusable law office failure … . Nor is there evidence in the record that counsel has engaged in a pattern of dilatory behavior … . Finally, plaintiff’s pleadings, along with the depositions of the witnesses, established a potentially meritorious cause of action … . Navarro v Joy Constr. Corp., 2022 NY Slip Op 05602, First Dept 10-6-22

Practice Point: Here excusable law office failure explained plaintiff’s failure to appear at conferences or outline remaining discovery. The parties had already stipulated to restore the action to the calendar. Plaintiff’s motion to vacate the dismissal of the action should have been granted. The parties’ stipulation should have been enforced, not ignored, by the judge.

October 6, 2022

Attorneys, Criminal Law, Judges

THE JUDGE DENIED DEFENDANT’S REQUEST FOR NEW COUNSEL WITHOUT INQUIRING ABOUT THE REASON FOR THE REQUEST; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the judge should have allowed the defendant to explain the reason he was requesting new counsel:

Defendant is entitled to a new trial because the court denied his request for new counsel without making any inquiry, and without giving defendant any opportunity to explain the basis for his request (see People v McCummings, 124 AD3d 502, 502-03 [1st Dept 2015]; People v Rodriguez, 46 AD3d 396 [1st Dept 2007], lv denied 10 NY3d 844 [2007]). People v Resheroop, 2022 NY Slip Op 05606, First Dept 10-6-22

Practice Point: Here the defendant asked for new counsel and the judge denied the request without asking for its basis. The appellate court reversed the conviction and ordered a new trial.

October 6, 2022

Attorneys, Family Law, Judges

ALTHOUGH THE JUDGE CAN PROPERLY AWARD COUNSEL FEES TO PETITIONER BASED UPON RESPONDENT’S VIOLATION OF AN ORDER OF PROTECTION, A HEARING IS NECESSARY TO DETERMINE THE AMOUNT OF THE FEE (SECOND DEPT).

The Second Department determined that the judge properly exercised discretion in awarding counsel fees to petitioner based upon appellant’s (Gorish’s) violation of an order of protection. However, the amount of counsel fees should have been determined by a hearing:

Under Family Court Act § 846-a, the court “may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful.” “The award of counsel fees is committed to the discretion of the Family Court” … . “[T]he reasonable amount and nature of the claimed services must be established at an adversarial hearing” … . Here, while the Family Court providently exercised its discretion in awarding counsel fees to the petitioner, the court erred in determining the amount of the counsel fees without a hearing. Matter of Sicina v Gorish, 2022 NY Slip Op 05535, Second Dept 10-5-22

Practice Point: The violation of an order of protection is a proper ground for awarding counsel fees to the petitioner, but the amount must be determined by a hearing.

October 5, 2022