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A DISMISSAL WITHOUT PREJUDICE IS NOT A FINAL DETERMINATION ON THE MERITS AND IS NOT SUBJECT TO THE DOCTRINE OF RES JUDICATA; ATTORNEY’S FEES ARE APPROPRIATE DAMAGES IN AN ACTION FOR BREACH OF A FORUM SELECTION CLAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s (Wormser’s) action for breach of the forum selection clause seeking attorney’s fees could go ahead. The defendant’s (L’Oreal’s) New Jersey action had been dismissed “without prejudice,” which was not a determination on the merits, and therefore Wormser’s action was not precluded by the res judicata doctrine:

Plaintiff (Wormser) asserts a claim for breach of the forum selection clause contained in the parties’ agreement, which requires disputes to be brought before the courts of New York City, and for attorneys’ fees incurred in the actions that defendant (L’Oréal) brought against it in New Jersey. After the New Jersey court had dismissed its complaint “with prejudice within the jurisdiction of New Jersey,” L’OrÉal commenced an action against Wormser in Supreme Court, New York County. Subsequently, a New Jersey appellate court amended the New Jersey trial court’s orders to make the dismissal “without prejudice” … , and Wormser brought this action.

Wormser’s claim is not barred by the doctrine of res judicata, because the dismissal was without prejudice by the New Jersey appellate court and therefore was not a final determination on the merits ,,, ,

Wormser’s claim for attorneys’ fees may proceed, as “damages may be obtained for breach of a forum selection clause, and an award of such damages does not contravene the American rule that deems attorneys’ fees a mere incident of litigation” … . Wormser Corp. v L’Oréal USA, Inc., 2022 NY Slip Op 03093, First Dept 5-10-22

Practice Point: A dismissal without prejudice is not a final determination on the merits and is not therefore subject to res judicata.

Practice Point: Attorney’s fees are properly demanded as damages in an action for breach of a forum selection clause.

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER HE WAS INDUCED TO SIGN RELEASES BY FRAUD, DURESS AND/OR MUTUAL MISTAKE; PLAINTIFF WAS APPROACHED BY HIS EMPLOYER’S LAWYER AND ALLEGEDLY BELIEVED HE WOULD LOSE HIS JOB IF HE DIDN’T SIGN (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff raised a question of fact about whether the releases were signed by plaintiff because of fraud, duress and/or mutual mistake. The facts are not described. Apparently plaintiff was injured at work and he alleged that he believed he would lose his job if he didn’t sign the releases:

“A release, even though properly executed, may nonetheless be void. Where fraud or duress in the procurement of a release is alleged, a motion to dismiss should be denied” … . Specifically, plaintiff alleged that Selina Maddock, a lawyer, was sent by their employer Navillus to secure plaintiff’s signature on the release, before he retained counsel, and made both the promise that he would have a job if he signed the releases, and the implicit threat that he would not have a job in the future if he failed to sign. He further alleged that Maddock advised plaintiff that he did not need to consult counsel and misrepresented to plaintiff that he was only releasing claims against his employer, Navillus. Consistent with this, plaintiff testified that he did not understand that he was releasing anyone besides his employer. Furthermore, “a mistaken belief as to the nonexistence of presently existing injury is a prerequisite to avoidance of a release”; here, while defendants argue that plaintiff is merely mistaken as to the sequelae of a known injury, plaintiff raises a factual issue as to whether the additional injuries he claims to suffer from were a sequelae of his right knee injury. Forcing a Hobbesian choice on injured workers to accept a small settlement or else lose their job before they can ascertain the nature and scope of their injury is contrary to the strong public policy of New York state to protect injured workers, as reflected in the Labor Law…. . Dolcimascolo v 701 7th Prop. Owner, LLC, 2022 NY Slip Op 02944, First Dept 5-3-22

Practice Point: Plaintiff was apparently injured at work. A lawyer for his employer approached him about signing releases. Plaintiff signed, allegedly because he believed he would lose his job if he didn’t. Therefore there was a question of fact about whether fraud, duress or mutual mistake invalidated the releases.

 

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THE TWO-JUSTICE DISSENT ARGUED THAT THE MAJORITY ERRONEOUSLY AFFIRMED THE DENIAL OF THE MOTION TO VACATE THE CONVICTION ON A GROUND NOT RELIED UPON BY THE MOTION COURT (FOURTH DEPT). ​

The Fourth Department affirmed the summary denial of defendant’s motion to vacate his conviction on ineffective assistance grounds. Defendant argued his counsel was ineffective because counsel did not object to defendant’s being forced to wear a stun belt. The two-justice dissent noted that the ground on which the majority based its decision, i.e., that defense counsel’s failure to object did not rise to ineffective assistance, was not the ground relied on by the motion court. Therefore, the dissent argued, the appellate court could not affirm on that ground:

From the dissent:

The court summarily denied the motion, concluding in relevant part that defendant is not entitled to relief on his ineffective assistance of counsel claim because we determined on direct appeal that he was not deprived of effective assistance of counsel … . The majority affirms that ruling on another ground, one not argued by the People on appeal—namely, that defense counsel’s failure to object to the stun belt, standing alone, was not such an egregious or prejudicial error as to compromise defendant’s right to a fair trial. Because the court did not deny defendant’s motion on the ground relied upon by the majority, we are precluded from affirming on that ground (see People v Concepcion, 17 NY3d 192, 197-198 [2011]; People v LaFontaine, 92 NY2d 470, 473-474 [1998], rearg denied 93 NY2d 849 [1999]). People v Bradford, 2022 NY Slip Op 02897, Fourth Dept 4-29-22

Practice Point: Although the argument was made in the dissent in this case, it is worth noting that there is authority for the position that an appellate court cannot affirm on a ground not relied upon by the lower court.

 

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PETITIONER WAS ENTITLED TO ATTORNEY’S FEES IN THIS FOIL PROCEEDING; THE RESPONDENTS DID NOT PROVIDE THE BULK OF THE REQUESTED DOCUMENTS UNTIL AFTER THE ARTICLE 78 WAS BROUGHT; RESPONDENTS DID NOT PRESENT AN ADEQUATE EXCUSE FOR FAILING TO INITIALLY DISCLOSE THE REQUESTED DOCUMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees as the prevailing party in this FOIL proceeding. It was only after petitioner brought an Article 78 petition that the respondents provided the bulk of the requested documents:

… [T]he respondents did not timely respond to the petitioner’s FOIL request … . The first response, which consisted of four pages of materials, failed to address three of the four enumerated categories of material the petitioner sought. It was not until after the commencement of this proceeding that the respondents provided a significant number of additional documents responsive to the FOIL request. Under the circumstances of this case, the petitioner was the “substantially prevailing” party … . …

… [T]he respondents did not have a reasonable basis for initially denying the petitioner access to the responsive materials. Although a limited amount of material was reasonably withheld based on attorney-client privilege, the “petitioner’s legal action ultimately succeeded in obtaining substantial unredacted post-commencement disclosure responsive to h[is] FOIL request” … . Matter of McNerney v Carmel Cent. Sch. Dist., 2022 NY Slip Op 02799, Second Dept 4-27-22

Practice Point: Respondents didn’t disclose the bulk of the documents described in the FOIL request until the Article 78 proceeding was started and did not have an adequate excuse for the initial incomplete response. Petitioner was entitled to attorney’s fees as the prevailing party.

 

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MOTHER WAS ENTITLED TO A HEARING ON HER CLAIM SHE ADMITTED TO PERMANENT NEGLECT BECAUSE HER COUNSEL WAS INEFFECTIVE; MOTHER ALLEGED COUNSEL DID NOT INFORM HER OF THE RELEVANT BURDENS OF PROOF AT TRIAL (SECOND DEPT).

The Second Department, reversing Family Court, determined mother was entitled to a hearing on whether her counsel was ineffective in failing to inform her of the applicable burdens of proof and in allowing her to admit to permanent neglect:

 “‘A respondent in a proceeding pursuant to Social Services Law § 384-b has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]), which encompasses the right to the effective assistance of counsel'” … . “[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings” … . Effective assistance is predicated on the standard of “meaningful representation” … .

… [M]other submitted an affidavit alleging that, prior to entering her admission to permanent neglect, counsel failed to inform her of the burden and standard of proof at trial and that she made the admission “because [she] was advised that it was necessary in order to have [her] children returned.” She further alleged that she “would not have made the statements that [she] made to the court if [she] had been fully advised of [her] rights.” The Family Court did not ameliorate these purported deficiencies in its colloquy with the mother, and also omitted any reference to the possible consequences of the finding, including termination of her parental rights … . Matter of Skylar P. J., 2022 NY Slip Op 02793, Second Dept 4-27-22

Practice Point: A party in a neglect proceeding has a right to effective assistance of counsel. Here mother was entitled to a hearing on her claim she would not have admitted to permanent neglect had she been informed of the relevant burdens of proof at trial.

 

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THE MAJORITY CONCLUDED (1) THE RECORD SUPPORTED THE FINDING THAT DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST FOR COUNSEL, AND (2) WHETHER A REQUEST FOR COUNSEL IS UNEQUIVOCAL IS A MIXED QUESTION OF LAW AND FACT WHICH IS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP). ​

The Court of Appeals, over a two-judge extensive dissenting opinion, determined (1) the record supported the finding that the defendant’s request for counsel was not unequivocal and (2) whether the request was unequivocal presents a mixed question of law and fact which is not reviewable by the Court of Appeals:

Once a defendant in custody unequivocally requests the assistance of counsel, the right to counsel may not be waived outside the presence of counsel … . But “[a] suggestion that counsel might be desired; a notification that counsel exists; or a query as to whether counsel ought to be obtained will not suffice” to unequivocally invoke the indelible right to counsel … . Furthermore, “[w]hether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .

Here, there is support in the record for the lower courts’ determination that defendant—whose inquiries and demeanor suggested a conditional interest in speaking with an attorney only if it would not otherwise delay his clearly-expressed wish to speak to the police—did not unequivocally invoke his right to counsel while in custody. That mixed question of law and fact is therefore beyond further review by this Court … .

From the dissent:

Here, Mr. Dawson [defendant] unequivocally invoked his right to counsel — the record supports no other conclusion. As is clear from the quoted portion of the colloquy with the detective, he twice said he wanted to call his lawyer, and the detective twice expressly stated that he understood Mr. Dawson had asked to call counsel and therefore the detective could no longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait while the detective retrieved Mr. Dawson’s phone so he could call counsel. People v Dawson, 2022 NY Slip Op 02772, CtApp 4-26-22

​Practice Point: Whether a defendant’s request for counsel in “unequivocal,” thereby requiring police interrogation to cease, is a mixed question of law and fact. As long as there is support in the record for the lower court’s finding the request was not unequivocal, the issue cannot be reviewed by the Court of Appeals.

 

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THE FOR CAUSE CHALLENGE TO THE PROSPECTIVE JUROR WHO WAS AN ASSISTANT DISTRICT ATTORNEY IN THE OFFICE PROSECUTING THE DEFENDANT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial, determined defense counsel’s for cause challenge to a juror who was an assistant district attorney in the office which was prosecuting the defendant should have been granted:

… [D]uring jury selection, the subject prospective juror informed the Supreme Court that she was presently working as an assistant district attorney, within the Queens County District Attorney’s Office, the same agency that was prosecuting the defendant, and that she was familiar with the prosecutor, the defense attorney, and the Justice. As the People correctly concede, the juror’s contemporaneous working relationship with the agency prosecuting the defendant required that juror’s dismissal for cause … . People v Cortes, 2022 NY Slip Op 02561, Second Dept 4-20-22

Practice Point: The for cause challenge to the prospective juror who was an assistant district attorney in the same office which was prosecuting the defendant should have been granted; new trial ordered.

 

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HERE PLAINTIFF’S ATTORNEY OFFERED A DETAILED, CREDIBLE EXPLANATION OF THE LAW OFFICE FAILURE WHICH RESULTED IN MISSING THE DEADLINE FOR PROVIDING DISCOVERY, AS WELL AS THE DEMONSTRATION OF POTENTIALLY MERITORIOUS CAUSES OF ACTION; DEFENDANTS’ MOTIONS TO ENFORCE THE PRECLUSION ORDER SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney offered a reasonable “law office failure” excuse for not complying with a discovery deadline (conditional order of preclusion):

“The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” … . “Conversely, where a claim of law office failure is conclusory and unsubstantiated or lacking in credibility, it should be rejected” … .

Here, in opposition to the defendants’ separate motions, inter alia, in effect, to enforce the conditional order, the plaintiff’s counsel provided a detailed and credible explanation of the law office error that resulted in the failure to comply with the conditional order … . The plaintiff also demonstrated potentially meritorious causes of action … . Fortino v Wheels, Inc., 2022 NY Slip Op 02393, Second Dept 4-13-22

​Practice Point: Here counsel offered a detailed, credible explanation for law office failure (failure to comply with a deadline for discovery). That explanation was coupled with the demonstration of potentially meritorious causes of action. Defendant’s motion to enforce the conditional preclusion order should not have been granted.

 

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THE PEOPLE’S APPLICATION FOR A PROTECTIVE ORDER PRECLUDING DISCLOSURE OF CERTAIN DISCOVERABLE MATERIALS TO THE DEFENDANT UNTIL A WEEK BEFORE TRIAL SHOULD HAVE BEEN PROVIDED TO DEFENSE COUNSEL TO ALLOW THE ISSUES TO BE FULLY LITIGATED; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing (modifying) the protective order upon an expedited review (CPL 245.70), determined that defense counsel should have been provided with the People’s application to withhold certain discoverable materials from the defendant until a week before trial:

Inasmuch as the People offered no basis to withhold these materials from defense counsel and, in fact, pursuant to the proposed order submitted by the People, defense counsel would be permitted to access them as soon as County Court signed the order, the better practice would have been to permit defense counsel access to the application and materials prior to the hearing on the protective order so that counsel could participate in it to the fullest extent practicable. …

Defense counsel should, with the appropriate caveat not to disclose them to or discuss their contents with his client pending determination of the application, be permitted to view the application and the materials at issue and thereby meaningfully participate in the hearing before County Court in order to advocate on behalf of his client and assist in reaching an appropriate outcome. Accordingly, the instant application should be granted and the matter remitted for a new hearing following further disclosure to defense counsel. People v Escobales, 2022 NY Slip Op 02354, Third Dept 4-8-22

Practice Point: Here County Court should have disclosed to defense counsel the People’s application to withhold certain discoverable materials from the defendant until a week before trial. Without the application, defense counsel could not fully litigate the issues. (The People had no objection to disclosing the withheld materials to defense counsel as soon as the requested order of protection was signed.)

 

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A JAIL PHONE CALL IN WHICH DEFENDANT SAID HE MIGHT PLEAD GUILTY SHOULD NOT HAVE BEEN ADMITTED BECAUSE ITS PREJUDICIAL EFFECT OUTWEIGHED ANY PROBATIVE VALUE; THE PROSECUTOR’S SUMMATION REFERENCE TO THE PORTION OF THE PHONE CALL IN WHICH DEFENDANT SAID HE NEEDED A “PAID LAWYER” WAS AN IMPROPER USE OF THE RIGHT TO COUNSEL AGAINST THE DEFENDANT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined a jail phone call in which defendant said he might plead guilty was inadmissible. In addition the prosecutor’s comment on summation that defendant said (in that jail phone call) he needed a “paid lawyer” was an improper reference to defendant’s right to counsel:

[Defendant] was deprived of a fair trial based upon the admission of a jail phone call wherein he stated that he might as well “cop out to . . . the five years or whatever.” The People portrayed this evidence as relevant to show defendant’s consciousness of guilt. Even if relevant, evidence of consciousness of guilt is generally considered weak … . That said, defendant’s statement that he contemplated taking a plea had little probative value but had a prejudicial effect on him. In this regard, “[s]ince it is widely assumed that only the guilty would consider entering a guilty plea, the knowledge that defendant wanted to plead guilty would make it difficult for the jury to accept the presumption of innocence and to evaluate the evidence fairly” … .

We also agree with defendant’s argument that he was prejudiced by the prosecutor’s comment on summation that defendant, in the jail phone call, stated that “[h]e need[ed] to get a paid lawyer to see if he can get lesser time.” The prosecutor argued to the jury that this statement went to defendant’s consciousness of guilt. A prosecutor, however, cannot use a defendant’s invocation of his or her constitutional right to counsel against such defendant … . It follows that any commentary to this effect is improper. Accordingly, defendant was prejudiced by the prosecutor’s summation … . People v Roberts, 2022 NY Slip Op 02157, Third Dept 3-31-22

Practice Point: Defendant, in a jail phone call, said he might plead guilty and he needed a “paid lawyer.” The “might plead guilty” statement should not have been admitted because it was highly prejudicial but had little probative value. The prosecutor’s reference in summation to the “need a paid lawyer” statement improperly used defendant’s right to counsel against him. These were deemed reversible errors.

 

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