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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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ALTHOUGH THE VAPING ASSOCIATION PREVAILED IN ITS ACTION FOR A PRELIMINARY INJUNCTION STAYING THE ENFORCEMENT OF THE DEPARTMENT OF HEALTH’S REGULATIONS BANNING FLAVORED VAPING LIQUIDS, THE DEPARTMENT’S ACTION WAS “SUBSTANTIALLY JUSTIFIED;” THEREFORE THE VAPING ASSOCIATION WAS NOT ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the respondent Public Health and Planning Council (within the NYS Department of Health) (the council) should not have been ordered to pay attorney’s fees to petitioner Vapor Technology Association (the vaping association) pursuant to the State Equal Access to Justice Act. The respondent council had adopted emergency regulations prohibiting flavored vaping liquids targeting young people. The petitioner vaping association brought a combined Article 78 and declaratory judgment action challenging the emergency regulations as exceeding the council’s regulatory authority. The Third Department granted the vaping association’s request for a temporary restraining order and Supreme Court granted a preliminary injunction. The matter was rendered moot when the legislature banned the sale of the flavored electronic cigarette products. Because the vaping association had prevailed prior to the legislature’s prohibition, it sought and was awarded attorney’s fees:

CPLR 8601 (a) “mandates an award of fees and other expenses to a prevailing party in any civil action brought against the state, unless the position of the state was determined to be substantially justified or that special circumstances render an award unjust” … . * * *

Petitioners capably disputed respondents’ arguments and obtained a temporary restraining order and a preliminary injunction barring enforcement of the emergency regulations, but a grant of temporary injunctive relief is not “an adjudication on the merits,” and we need not decide who would have prevailed had this matter proceeded to a final judgment … .. Upon our review, we are satisfied that respondents articulated a reasonable factual and legal basis for their arguments that the Council and the Commissioner acted within their rule-making authority by adopting the emergency regulations … . Thus, Supreme Court abused its discretion in finding that those arguments were not “substantially justified” within the meaning of CPLR 8601 (a), and petitioners were not entitled to an award of counsel fees and expenses as a result … .Matter of Vapor Tech. Assn. v Cuomo, 2022 NY Slip Op 02171, Third Dept 3-31-22

Practice Point: Even though a party which prevails against a state agency is generally entitled to attorney’s fees pursuant to the State Equal Access to Justice Act, if the agency’s actions are deemed “substantially justified” attorney’s fees will not be awarded. Here the Department of Health’s adoption of emergency regulations banning the sale of flavored vaping liquids (targeting young people as a market) was deemed “substantially justified” by the appellate court. The award of attorney’s fees by Supreme Court was reversed.

 

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ALTHOUGH DEFENDANTS WERE NOT PROPERLY SERVED IN THIS FORECLOSURE ACTION AND THEIR MOTION TO VACATE THE JUDGMENT WAS GRANTED ON THAT GROUND, THE DEFENDANTS’ ATTORNEY’S “LIMITED APPEARANCE” AT A SETTLEMENT CONFERENCE PROVIDED THE COURT WITH JURISDICTION OVER THE MATTER; THE MOTION TO VACATE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an attorneys “limited appearance” at a foreclosure settlement conference provided the court with jurisdiction over matter despite the fact defendants demonstrated they were not properly served with the summons and complaint:

… [A]n attorney appeared in the action on behalf of the defendants by filing notices of appearance that represented that counsel was making “a limited appearance for the settlement conference pursuant to CPLR Rule 3408.” However, neither the defendants nor counsel for the defendants raised any objection to personal jurisdiction at that time by either a timely motion to dismiss on that ground or by interposing a timely answer asserting lack of personal jurisdiction … . Although the notices of appearance purported to limit counsel’s appearance to the foreclosure settlement conferences, “such language ‘is not a talisman to protect the defendant[s] from [their] failure to take timely and appropriate action to preserve [their] defense of lack of personal jurisdiction'” … . Since the defendants had waived the defense of lack of personal jurisdiction by failing to timely assert it, that defense was not a proper basis on which to vacate the order and judgment of foreclosure and sale … . US Bank N.A. v Chkifati, 2022 NY Slip Op 02151, Second Dept 3-30-22

Practice Point: Here defendants proved they were not properly served with the summons and complaint in this foreclosure action and Supreme Court granted their motion to vacate the judgment. However the appellate court reversed because the defendants’ attorney’s “limited appearance” for the settlement conferenced provided the court with jurisdiction (just as if defendants had been properly served).

 

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THE FACT THAT THE ATTORNEY FOR THE CHILD (AFC) IN THIS CUSTODY MATTER HAD, AS A JUDGE, PRESIDED OVER A DIFFERENT CUSTODY MATTER INVOLVING MOTHER, BUT INVOLVING DIFFERENT CHIDREN AND A DIFFERENT FATHER, DID NOT REQUIRE AUTOMATIC DISQUALIFACTION OF THE AFC PURSUANT TO JUDICIARY LAW 17 (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the attorney for the child (AFC) in the instant custody matter, who, as a judge, had presided over another custody case involving mother and different children, was not subject to automatic disqualification:

Various factual circumstances exist where disqualification of an attorney under Judiciary Law § 17 has been found. * * *

… [T]he custody case noted by the mother neither involved the subject children nor the subject children’s father] Rather, it was an entirely separate proceeding involving different children and a different father. Furthermore, the mother does not allege any factual ties between these underlying proceedings and the prior custody case … . Indeed, the only common tie between them is that the mother was a litigant. … [O]nly the mother, and not her present custody claim over the subject children, had been before the AFC during his tenure as a judge.

… [T]he mother’s fitness as the custodial parent presumably was an issue presented in her prior custody case. It is also an issue present here. Equating a discrete issue with a “matter” provided in Judiciary Law § 17, however, impermissibly stretches the meaning of “matter” such that it does not comport with “action, claim, . . . motion or proceeding” — the other terms in Judiciary Law § 17 … . … [I]n view of the jurisdiction of Family Court and the particular cases such court hears, a party’s fitness as a custodial parent frequently arises as an issue whether directly or indirectly. By giving an expansive view to “matter,” the AFC, a former Family Court judge who had presided over countless proceedings in the past, would be disqualified from representing any party in any future case where another party in such case was previously before the AFC in one of those past proceedings — a result that would occur without regard to the nature of either the past proceeding or future case. Matter of Corey O. v Angela P., 2022 NY Slip Op 02044, Third Dept 3-24-22

Practice Point: The fact that the attorney for the child (AFC) in this custody case presided, as a judge, over another custody case involving mother, but involving different children and a different father, did not require automatic disqualification of the AFC pursuant to Judiciary Law section 17.

 

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BRADY MATERIAL WAS WITHHELD, CROSS-EXAMINATION ABOUT A COMPLAINANT’S INCONSISTENT STATEMENTS WAS NOT ALLOWED; THE INQUIRY AFTER A POLLED JUROR INDICATED SHE MAY NOT HAVE AGREED WITH THE VERDICT WAS INSUFFICIENT (SECOND DEPT).

The Second Department, vacating the assault second conviction and dismissing the count, and reversing the gang assault and assault first convictions, determined: (1) Brady material was withheld by redacting the name of a 911 caller who indicated defendant was not involved in the assault; (2) cross-examination of a police officer about a discrepancy between a complainant’s testimony and a statement attributed to the complainant in a police report should have been allowed; and (3) the judge should have inquired further after a juror indicated she “was not sure” about some of the convictions when the jury was polled:

While the contents of the 911 call may have provided some clues as to the identity of the caller, the defendant should not be forced to guess as to the identity of this caller. In addition, we are satisfied that there was a reasonable possibility that disclosure of the caller’s identity and contact information would have led to evidence that would have changed the result of the proceedings … . …

… [T]he court erred in precluding defense counsel from questioning the police witness about the contents of the report and the alleged prior inconsistent statement of complainant one …  . …

… [W]hen the jury was polled and asked if the verdict was theirs, juror number nine stated, “Um, I’m not sure, with some, but most of them, yes.” Although the Supreme Court thereafter inquired of juror number nine if the verdict announced to the court was her own, it did so by asking her “is that a yes or a no” in the presence of the remaining jurors, despite evidence before the court suggesting that juror number nine may have succumbed to pressure to vote with the majority even though she did not agree with the verdict as to certain counts. The court’s inquiry was therefore not sufficient … . People v Ramunni, 2022 NY Slip Op 02022, Second Dept 3-23-22

Practice Point: Here Brady material, the identity of a 911 caller, was withheld, cross-examination about inconsistent statements attributed to a complainant was not allowed, and a juror who, when polled, said she may not have agreed with verdict was not sufficiently questioned by the judge. One count of the indictment was dismissed, and a new trial was ordered on the gang assault and assault first counts.

 

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PLAINTIFFS’ LEGAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS’ 2010 BREACH OF A CONDOMINIUM-SALE CONTRACT ACTION WAS DISMISSED ON STATUTE OF FRAUDS GROUNDS; WHEN A WRITTEN CONTRACT SUBSEQUENTLY SURFACED, DEFENDANT ATTORNEYS DID NOT MOVE TO RENEW, VACATE OR APPEAL THE ORDER (FIRST DEPT).

The First Department, reversing Supreme Court, determined the legal malpractice action should not have been dismissed. Plaintiffs, apparently represented by defendant attorneys, brought a 2010 action for breach of a condominium-sale contract which was dismissed on statute of frauds grounds (no written contract). When the written contract for the condominium sale surfaced, the defendants did not move to renew, vacate or appeal the order:

Regardless of whether the dismissal on statute of frauds grounds was ultimately correct, defendants should have known that the condominium claims, which involved the sale of real property, would be subject to the statute of frauds and thus would require reference to a written contract (General Obligations Law § 5-703[2]); that the statute of frauds could be raised and adjudicated on a motion to dismiss under CPLR 3211(a)(5); and that a dismissal under the statute of frauds would be on the merits, thus precluding any future claim for damages on the sale of the condominium … . As a result, with respect to the condominium sale, it cannot be determined as a matter of law that plaintiffs failed to plead a claim for legal malpractice based upon defendants’ actions in litigating the breach of contract claim. Komolov v Popik, 2022 NY Slip Op 01966, First Dept 3-22-22

Practice Point: The defendant attorneys apparently represented plaintiffs in their 2010 action for breach of a condominium-sale contract. The 2010 action was dismissed on statute of frauds grounds. Subsequently a written contract surfaced and defendant attorneys did not move to renew, vacate or appeal the order. Plaintiffs’ legal malpractice complaint should not have been dismissed.

 

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A LOCAL ONLINE NEWS OUTLET SHOULD NOT HAVE BEEN EXCLUDED FROM A FAMILY COURT HEARING REGARDING WHETHER A DEPUTY COUNTY ATTORNEY SHOULD BE DISQUALIFIED FROM A NEGLECT PROCEEDING ON CONFLICT OF INTEREST GROUNDS; THE OUTLET IS ENTITLED TO A TRANSCRIPT OF THE HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined appellant, an online local news outlet, should not have been excluded from an attorney-disqualification hearing and was entitled to a transcript of the hearing. The respondent in a neglect proceeding had moved to disqualify the deputy county attorney on conflict of interest grounds. Appellant’s owner deemed the motion newsworthy because the deputy county attorney had just been elected City-Court Judge. When appellant’s owner attempted to attend the disqualification hearing he was denied entry:

… “[T]he general public may be excluded from any hearing under [Family Court Act] article [10] and only such persons and the representatives of authorized agencies admitted thereto as have an interest in the case” (§ 1043). In making that determination, however, “[a]ny exclusion of courtroom observers must . . . be accomplished in accordance with 22 NYCRR 205.4 (b)” … . That rule provides that “[t]he general public or any person may be excluded from a courtroom [in Family Court] only if the judge presiding in the courtroom determines, on a case-by-case basis based upon supporting evidence, that such exclusion is warranted in that case” … . The rule further provides certain nonexclusive factors that a Family Court judge may consider in exercising his or her discretion, and requires that the judge make findings prior to ordering any exclusion … .

… [T]he court abused its discretion in excluding appellant from the hearing on the underlying disqualification motion. … [T]he court violated 22 NYCRR 205.4 (b) by failing to make findings prior to ordering the exclusion, and … there is no indication … that the court rendered its determination based on … evidence or considered any of the relevant factors in exercising its discretion. Moreover, … the court lacked an adequate basis to exclude appellant from the hearing on the disqualification motion … . * * *

… [T]he release of the transcript is consistent with Family Court Act § 166 and 22 NYCRR 205.5. … [T]he statute provides in relevant part that although “[t]he records of any proceeding in the family court shall not be open to indiscriminate public inspection[,] . . . the court in its discretion in any case may permit the inspection of any papers or records” … . The statute thus “does not render Family Court records confidential, but merely provides that they are not open to indiscriminate public inspection” … . The statute makes clear that Family Court “has the discretionary statutory authority to permit the inspection of any record by anyone at any time … .Matter of Rajea T. (Niasia J.), 2022 NY Slip Op 01940, Fourth Dept 3-18-22

Practice Point: Although the general public can be excluded from Family Court Article 10 proceedings, the judge exercising the discretion to exclude an observer must make certain findings in accordance with 22 NYCRR 205-4 (b). Family Court here made no findings and abused its discretion by excluding the news outlet. The court proceeding concerned whether the county attorney handling the neglect case should be disqualified on conflict of interest grounds, and did not concern the underlying allegations of neglect. The news outlet is entitled to a transcript of the hearing.

 

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