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DEFENDANT NEVER PHYSICALLY POSSESSED THE NOTE UNDERLYING THE MORTGAGE AND WAS NEVER ASSIGNED THE NOTE; THEREFORE DEFENDANT DOES NOT HAVE STANDING TO FORECLOSE ON THE MORTGAGE; AN ATTORNEY’S FAILURE TO APPEAR AT A FULLY BRIEFED MOTION ARGUMENT IS NOT A DEFAULT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant does not own the note underlying the mortgage and therefore has no right to foreclose. The Fourth Department noted that an attorney’s failure to appear at a full briefed motion argument does not constitute a default:

… [D]efendant lacks noteholder standing because the promissory note upon which defendant relies is neither endorsed in blank nor specially endorsed to defendant … . … [E]ven had the note been endorsed in blank or specially endorsed to defendant, defendant’s admitted failure to physically possess the original note would independently preclude it from foreclosing as a noteholder … . …

Nor does defendant have assignee standing. The affidavits submitted on defendant’s behalf do not aver that the subject note was ever assigned to defendant … . …

… [A]n action to quiet title pursuant to RPAPL article 15 is a proper procedural vehicle for determining defendant’s standing to foreclose (see RPAPL 1501 [1], [5] … ). Hummel v Cilici, LLC, 2022 NY Slip Op 01690, Fourth Dept 3-11-22

Practice Point: An attorney’s failure to appear at a fully briefed motion argument is not a default.

Practice Point: A party who never physically possessed the note underlying the mortgage does not have standing to foreclose.

 

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CERTAIN FOIL REQUESTS RE: THE TRAINING AND PROCEDURES OF THE BOARD OF PAROLE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE; TWO DISSENTERS DISAGREED (THRID DEPT).

The Third Department, over two partial dissents, determined the FOIL request for certain documents relating to the training and procedures of the Board of Parole was properly denied as protected by the attorney-client privilege:

“[T]he attorney-client privilege protects communications between an attorney and his or her client that convey facts relevant to a legal issue under consideration, even if the information contained in the communication is not privileged” … . Regarding the minor offenders memoranda, these documents … were created by counsel and contain legal advice to the Board regarding the state of law and how the Board should conduct interviews in accord with such law. The court-decisions handouts likewise provide counsel’s summary, view and impression of recent case law to the Board. Similarly, the presentation slides and the parole interviews and decision-making handout discuss various legal standards and regulations and, as the Board’s counsel noted, were provided to the Board so it could understand the requirements imposed by them and how it can comply with them. As to the remaining documents — handouts concerning Board interviews, sample decision language concerning departure from COMPAS [Correctional Offender Management Profiling for Alternative Sanctions] and hypothetical Board decisions — they also involve legal advice as to how to reach decisions on parole matters so as to be in compliance with applicable regulations…. .

From the two partial dissents:

… [M]any of the documents contain sections that are devoted solely to informing the Board of Parole of its duly codified statutory and regulatory duties in rendering parole determinations, without any fact-specific discussions or legal advice on how to apply the law to particular scenarios. Although these documents were prepared by attorneys in the course of a professional relationship, the general legal principles outlined therein are not confidential … * * *

… I disagree with the majority because it is my opinion that the proper basis to withhold these documents is the intra-agency exemption, rather than the attorney-client privilege exemption. Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 01354, Third Dept 3-3-22

 

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PLAINTIFF DID NOT HAVE TO PROVE THE EXISTENCE OF A RETAINER AGREEMENT TO DEMONSTRATE AN ATTORNEY-CLIENT RELATIONSHIP WITH DEFENDANTS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice action should not have been dismissed on the ground plaintiff did not demonstrate the existence of an attorney-client relationship. Plaintiff did not have to produce a retainer agreement:

… [T]he Supreme Court erred in granting dismissal of the legal malpractice cause of action based upon the plaintiff’s failure to produce evidence of an attorney-client relationship. An attorney-client relationship does not depend on the existence of a formal retainer agreement … , and the plaintiff had no obligation to demonstrate evidentiary facts to support the allegations contained in the complaint … . Furthermore, the complaint sufficiently alleges the existence of an attorney-client relationship between the plaintiff and the … defendants … , as well as the other elements of legal malpractice, including damages, to support a legal malpractice cause of action … . Ripa v Petrosyants, 2022 NY Slip Op 01336, Second Dept 3-2-22

 

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REMARKS BY THE JUDGE AND DEFENDANT’S COUNSEL PREJUDICED THE JURY IN THIS MEDICAL MALPRACTICE CASE; ALTHOUGH NOT PRESERVED, THE ISSUE WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE; DEFENSE VERDICT SET ASIDE (SECOND DEPT).

The Second Department, reversing the defendants’ verdict in this medical malpractice action and considering the appeal in the interest of justice, determined the trial judge and a defendant’s attorney made comments which prejudiced the jury:

… [T]he Supreme Court’s repeated prejudicial comments and interjections prejudiced the plaintiff. For example, the court barred the plaintiff’s counsel from referring to the growth at issue on the plaintiff’s left foot as a tumor, ordered that the growth be referred to as a wart, and continued to refer to it as a wart through the trial. Thus, the court, in effect, determined a pivotal issue of fact that was properly for the jury to resolve … . In addition, the court opined multiple times before the jury that there was no proof that the plaintiff was misdiagnosed by the defendants, despite testimony by the plaintiff’s expert to the contrary which had already been elicited. Although the court later directed the jury to disregard its remarks, the instruction was not sufficient to cure the prejudice caused by its improvident comments and interjections … .

The comments of [defendant] Oami’s counsel also prejudiced the plaintiff. Oami’s counsel made multiple improper and inflammatory comments about the relationship between counsel for the plaintiff and the plaintiff’s expert pathologist during the cross examination of that expert and during his summation to the jury on behalf of Oami. Contrary to the Supreme Court’s determination, these remarks were so inflammatory and unduly prejudicial as to have deprived the plaintiff of a fair trial … . Valenti v Gadomski, 2022 NY Slip Op 01342, Second Dept 3-2-22

 

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IT WAS ALLEGED DEFENDANTS-ATTORNEYS DID NOT INSTRUCT THE DECEDENT TO REVOKE THE TOTTEN TRUSTS SO THE FUNDS WOULD BE DISTRIBUTED IN ACCORDANCE WITH HER WISHES AS SET OUT IN THE WILL AND TRUST DRAFTED BY DEFENDANTS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants-attorneys should not have been granted summary judgment in this legal malpractice action brought by the executor of the estate of attorneys’ client. It was alleged two bank accounts were Totten Trusts which passed outside of the will and therefore were not distributed as decedent wished (as was set out in the will and trust drafted by defendants). As a result one of decedent’s sons, whom decedent intended to disinherit, received half of the Totten Trusts:

The Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the amended complaint. The defendants failed to submit sufficient evidence establishing … that they exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. In addition, the court erred in determining that the defendants established, prima facie, that the decedent’s estate did not sustain actual and ascertainable damage as a result of the defendants’ alleged negligence in failing to advise the decedent to revoke the Totten Trusts prior to her death. Schmidt v Burner, 2022 NY Slip Op 01191, Second Dept 2-23-22

 

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BECAUSE PLAINTIFF’S DECEDENT COULD NOT COMMENCE A LEGAL MALPRACTICE ACTION WHILE THE DEFENDANTS-ATTORNEYS STILL REPRESENTED HIM, THERE WAS A QUESTION OF FACT WHETHER THE ACTION WAS TIMELY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a decision addressing several issues not summarized here, determined there was a question of fact whether the continuous representation doctrine rendered the legal malpractice action timely:

… [T]he plaintiffs raised a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until June 24, 2013, when the Supreme Court … vacated the March 18, 2013 order, and … granted W & H’s [defendants-attorneys] motion for leave to withdraw as counsel. Inasmuch as W & H’s motion to withdraw as counsel, which was opposed by Michele [plaintiff’s decedent] , was initially denied, Michele could not be expected to commence an action to recover damages for legal malpractice against W & H while the representation continued … . Accordingly, the court erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the legal malpractice cause of action as time-barred. Tulino v Hiller, P.C., 2022 NY Slip Op 01197, Second Dept 2-23-22

 

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THE 3RD DEPARTMENT, JOINING THE 2ND, HOLDS THAT A DEFENDANT HAS A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT A SORA RISK-LEVEL PROCEEDING, DESPITE ITS CIVIL NATURE; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE; THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Garry, determined: (1) defendant was entitled to and did not receive effective assistance of counsel at the SORA risk-level proceeding (which is civil in nature). despite his decision not to appear; and (2) the SORA judge did not make the required findings of fact and conclusions of law, requiring remittal:

Despite SORA proceedings being civil in nature, not criminal … , we now join the Second Department in explicitly holding that SORA defendants have the right to the effective assistance of counsel, pursuant to the Due Process Clauses contained in the 14th Amendment of the US Constitution and article I, § 6 of the NY Constitution, because the statutory right to counsel in such proceedings (see Correction Law § 168-n [3]) would otherwise be rendered meaningless, and because SORA determinations affect a defendant’s liberty interest … .

… Although defendant waived his right to be present at the SORA hearing, he did not waive his right to contest the Board’s risk level recommendation or the People’s arguments and proof … . Counsel — who acknowledged at the hearing that he had “had no contact” with defendant — made no arguments, essentially agreed to the Board’s recommendation, and failed to require the People to admit any proof at the hearing or County Court to provide any reasoning for its determination. … The record … reveals that counsel, who did not communicate with his client at all and “failed to litigate any aspect of the adjudication,” did not provide effective representation … . As defendant was deprived of the effective assistance of counsel, upon remittal he is entitled to a new hearing with different assigned counsel. People v VonRapacki, 2022 NY Slip Op 01071, Third Dept 2-17-22

 

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MOTHER DID NOT WILLFULLY VIOLATE THE ORDER OF VISITATION; COVID MADE MEETING IN A PUBLIC PLACE DIFFICULT, THERE WAS CONFUSION ABOUT WHICH ORDER APPLIED, AND MOTHER RELIED ON HER ATTORNEY’S ADVICE (THIRD DEPT).

The Third Department, reversing Family Court, determined mother did not willfully violate an order of visitation. There was confusion about which order applied and mother relied on her attorney’s advice:

The mother contends that Family Court abused its discretion when it found that she willfully violated the visitation order. Specifically, she asserts that she did not produce the child because the father unilaterally canceled visits, there was confusion over what order was in effect, and she relied upon the communications between the parties’ attorneys to establish when the visitation would occur. * * *

… Family Court erred in finding that she willfully violated the order. Under these circumstances, where both parties testified as to the difficulties involved in having parenting time take place in a public venue during COVID-19, there was confusion among the parties as to which order was in effect at the time, and the mother relied on her attorney’s advice, which had a sound basis … , it is clear that any violation was not willful. Matter of Damon B. v Amanda C., 2022 NY Slip Op 01082, Third Dept 2-17-22

 

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THE SUPPORT MAGISTRATE DID NOT ENSURE THAT FATHER KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVED HIS RIGHT TO COUNSEL IN THIS CHILD SUPPORT PROCEEDING; ORDER OF COMMITMENT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court’s order of commitment for father’s failure to pay child support, determined the Support Magistrate did not ensure that father’s waiver of counsel was knowing, intelligent and voluntary:

… [A]t the beginning of the hearing, the Support Magistrate asked the father what he “want[ed] to do about legal representation,” to which the father responded, “I’m speaking for myself at this point.” The Support Magistrate did not make any further inquiries regarding counsel. The Support Magistrate also failed to advise the father about the potential pitfalls of proceeding pro se. Thus, the Support Magistrate failed to conduct a sufficiently searching inquiry to ensure that the father’s waiver of his right to counsel was knowing, intelligent, and voluntary … . Under these circumstances, the father was deprived of his right to counsel at the hearing. Contrary to the mother’s contention, this violation was not cured by the fact that the father was later represented by assigned counsel during the confirmation hearing … . Matter of Sylvester v Goffe, 2022 NY Slip Op 01028, Second Dept 2-16-22

 

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IN AN ACTION FOR A LICENSE PURSUANT TO RPAPL 881 TO ALLOW PETITIONER ACCESS TO RESPONDENTS’ ABUTTING BUILDING TO FACILITATE CONSTRUCTION WORK ON PETITIONER’S BUILDING, RESPONDENTS ARE ENTITLED TO LICENSE FEES, ATTORNEY’S FEES, ENGINEERING FEES, ETC., ASSOCIATED WITH PROTECTING THEIR BUILDING AND TO COMPENSATE FOR INTERFERERENCE WITH THE USE OF THEIR BUILDING, IRRESPECTIVE OF WHETHER THERE IS ANY DAMAGE TO RESPONDENTS’ BUILDING (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, affirmed the grant of a license to petitioner, pursuant to RPAPL 881, to enter respondents’ abutting property to protect the abutting property during construction work on petitioner’s building, but vacated or reduced some of the specific costs and/or damages awarded. The First Department noted that attorney’s fees, license fees and engineering fees, etc., associated with the respondents’ efforts to protect their building and the loss of use and enjoyment of their building during construction are properly assessed to the petitioner:

What petitioner seeks is essentially to compel respondents to grant it a license on its own terms. However, as we have recognized, because “[t]he respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it . . . [e]quity requires that the owner compelled to grant access should not have to bear any costs resulting from the access” … . Thus, the grant of licenses pursuant to RPAPL 881 often warrants the award of contemporaneous license fees … . Contrary to petitioner’s contention that a license fee constitutes a windfall unless there are some actual damages, such as lost business, we have found that a license fee is warranted “where the granted license will entail substantial interference with the use and enjoyment of the neighboring property during the [license] period, thus decreasing the value of the property during that time” … .

Similarly, a compulsory licensor should be entitled to reasonable attorneys’ and engineering fees … . Matter of Panasia Estate, Inc. v 29 W. 19 Condominium, 2022 NY Slip Op 00975, First Dept 2-15-22

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