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A SUBPOENA ISSUED BY AN ATTORNEY IS A “JUDICIAL” SUBPOENA SUBJECT TO A CONTEMPT PROCEEDING WITHOUT THE NEED TO FIRST SEEK A COURT ORDER COMPELLING COMPLIANCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a subpoena issued by an attorney was a “judicial” subpoena and defendant Patterson’s failure to appear for a deposition and produce documents was punishable by contempt without the need to first obtain a court order compelling compliance:

Critical to the resolution of this appeal is whether this type of subpoena is a “judicial” subpoena, as defined by CPLR 2308(a), or a “non-judicial” subpoena, as defined by CPLR 2308(b). … [T]he disobedience of a judicial subpoena is punishable by contempt of court, while a person served with a non-judicial subpoena cannot be held in contempt unless the court first issues an order compelling compliance with the subpoena that is then disobeyed  … .

We find that the subpoena is a “judicial” subpoena, the disobedience of which is punishable by contempt … . CPLR 2308(a) embraces subpoenas issued by an officer of the court (such as an attorney) at any stage of a judicial proceeding, regardless of whether the subpoena was specifically returnable in court … . Cadlerock Joint Venture, L.P. v Patterson, 2021 NY Slip Op 06535, First Dept 11-23-21

 

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THE PROFESSIONAL EMPLOYEE AGREEMENT, WHICH PROVIDED FOR THE SHARING OF CONTINGENCY FEES FOR CASES RETAINED BY AN ATTORNEY WHO LEAVES THE FIRM, DID NOT VIOLATE ETHICS RULES AND SHOULD HAVE BEEN ENFORCED (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined the Professional Employee Agreement (Agreement), which provided for sharing contingency fees for cases retained by an attorney leaving the firm, did not violate ethics rules and should have been enforced:

… [T]he Agreement did not violate rule 1.5 (g) of the Rules of Professional Conduct (22 NYCRR 1200.0) inasmuch as that rule “does not prohibit payment to a lawyer formerly associated in a law firm pursuant to a separation or retirement agreement” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.5 [h] … ) . Here, the Agreement at issue is not a fee-splitting agreement under Rule 1.5 (g) but, rather, an employment or separation agreement under Rule 1.5 (h). Such employment or separation agreements “should be construed, wherever possible, in favor of [their] legality” … and where, as here, they are clear and unambiguous on their face, they must be ” ‘enforced according to the plain meaning of [their] terms’ ” … .

… [T]he Agreement did not violate rule 5.6 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0 … ). Although the Agreement did have some financial disincentives for respondents to continue working on the cases that were transferred from petitioner, “agreements involving financial disincentives are not per se illegal”  … [W]e conclude that the terms of the Agreement relating to the division of contingency fee awards did not have the effect of “improperly deter[ring] competition” … . Matter of Mattar v Hall, 2021 NY Slip Op 06477, Fourth Dept 11-19-21

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO CHALLENGE THE VERDICT AS REPUGNANT (CT APP).

The Court of Appeals reversed People v Jennings, 2021 NY Slip Op 00944 [191 AD3d 1429], Fourth Dept 2-11-21. The facts were not described:

On review of submissions pursuant to section 500.11 of the Rules, order reversed, and case remitted to the Appellate Division, Fourth Department, for consideration of the facts and issues raised but not determined on the appeal to that Court. Counsel’s failure to challenge the verdict as repugnant did not render the representation ineffective because the issue was not clear-cut and dispositive given the jury charge … . People v Jennings, 2021 NY Slip Op 06428, Ct App 11-18-21​

 

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THE COMPLAINT SUFFICIENTTLY ALLEGED A BREACH OF THE COVENANT OF GOOD FAITH CAUSE OF ACTION IN THIS INSURANCE COVERAGE DISPUTE; THE “IMPLIED COVENANT” CAUSE OF ACTION ALLEGED CONDUCT DIFFERENT FROM THE BREACH OF CONTRACT CAUSE OF ACTION AND WAS THEREFORE NOT DUPLICATIVE; SUPREME COURT IMPROPERLY REDUCED THE ATTORNEYS’ FEES AWARDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the breach of the implied covenant of good faith and fair dealing cause of action in this insurance coverage dispute should not have been dismissed. The court noted that the “breach of the implied covenant” cause of action was not based on the same conduct as the breach of the insurance policy cause of action and therefore was not “duplicative.” The court also found Supreme Court improperly reduced the attorneys’ fees awards:

This appeal arises out of an insurance coverage dispute between the plaintiff and its insurer, the defendant, in connection with a School Board Legal Liability Policy … (hereinafter the policy). While the policy was in effect, a putative class action entitled Montesa v Schwartz (hereinafter the underlying action) was commenced … in … the Southern District of New York against … the plaintiff and its current and former school board members, alleging various constitutional violations, school segregation, breach of fiduciary duty, and fraud. … [P]laintiff timely submitted a notice of claim to the defendant regarding the underlying action and requested coverage under the policy, and the defendant denied coverage to the plaintiff and its board members. * * *

The plain language of the complaint reflects the plaintiff’s allegation that the defendant breached the implied covenant of good faith and fair dealing. The complaint alleged … that the defendant failed to investigate in good faith the claims in the underlying action, denied coverage to the plaintiff based upon a manufactured and/or “nonexistent” assertion, deviated from industry practices by denying coverage to the plaintiff where “[n]o reasonable insurer would have denied [such] coverage,” and “[disclaimed] coverage with gross disregard for the facts and applicable law” … . In determining the defendant’s motion to dismiss, the court was required to accept as true the facts alleged in the complaint, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged by the plaintiff fit within any cognizable legal theory … . …

… [W]here, as here, the cause of action to recover damages for breach of the policy and the cause of action to recover damages for breach of the implied covenant of good faith and fair dealing allege different conduct on the part of the defendant and seek different categories and/or types of damages, the cause of action seeking damages for breach of the implied covenant of good faith and fair dealing should not be dismissed as “duplicative” of the cause of action alleging breach of contract … . East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 2021 NY Slip Op 06341, Second Dept 11-17-21

 

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CRIMINAL SEXUAL ACT FIRST DEGREE IS NOT A LESSER INCLUDED OFFENSE OF PREDATORY ASSAULT AGAINST A CHILD; THE PROSECUTOR IMPROPERLY INJECTED THE INTEGRITY OF THE DISTRICT ATTORNEY’S OFFICE INTO THE CASE (FOURTH DEPT).

The Fourth Department, dismissing one count without prejudice, determined criminal sexual act first degree is not a lesser included offense of predatory sexual assault against a child. Therefore the jury should not have been so instructed. The court noted that the prosecutor improperly injected the integrity of the District Attorney’s office into the trial by telling the jury he was at a significant advantage because he had been working on the case for more than a year:

As alleged in count one of the indictment, defendant committed predatory sexual assault against a child because, during a certain period of time, and while “being [18] years old or more, [he] engaged in two or more acts of sexual conduct, which included at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a female . . . , who was less than [13] years old.” Thus, by its explicit language, the count of predatory sexual assault against a child was predicated on defendant’s alleged commission of the class B felony of course of sexual conduct against a child in the first degree (see Penal Law § 130.75 [1] [b]) and, as a result, the People could not establish that the offense of criminal sexual act in the first degree, a different class B felony, was a lesser included offense of predatory sexual assault against a child within the meaning of CPL 1.20 (37). Stated another way, it is not impossible to commit predatory sexual assault against a child, as the offense was charged in the indictment in this case, without concomitantly, by the same conduct, committing criminal sexual act in the first degree. Indeed, as the offense was charged in the indictment here, a defendant could commit predatory sexual assault against a child by engaging in sexual intercourse or aggravated sexual contact with the victim (see Penal Law §§ 130.96, 130.75 [1] [b]), without concomitantly, by the same conduct, committing criminal sexual act in the first degree (see § 130.50 [3]). People v Getman, 2021 NY Slip Op 06224, Fourth Dept 11-12-21

 

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THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY RE: DEFENDANT’S WAIVER OF THE RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING BEFORE ALLOWING DEFENDANT TO PROCEED WITHOUT AN ATTORNEY; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new custody hearing, determined the judge did not make the required inquiry before allowing defendant to waiver her right to counsel:

The parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child must be advised “before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same” (Family Ct Act § 262[a][v]; see Judiciary Law § 35[8] …). A party may waive the right to counsel, provided he or she makes a knowing, voluntary, and intelligent waiver of that right … . Here, the Supreme Court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se with regard to the hearing and determination of the defendant’s motions to modify and/or vacate the custody order … . Wondemagegehu v Edem, 2021 NY Slip Op 06213, Second Dept 11-10-21

 

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DEFENDANT WAS DENIED HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BY A DETECTIVE’S TESTIM0NY ABOUT THE SUBSTANCE OF A STATEMENT ALLEGEDLY MADE BY A NONTESTYING ACCOMPLICE; THE ERROR WAS PRESERVED FOR APPEAL BY THE DEFENDANT HIMSELF, NOT DEFENSE COUNSEL, CITING CRAWFORD V WASHINGTON (SECOND DEPT),

The Second Department, reversing the murder conviction and ordering a new trial, in a full-fledged opinion by Justice Chambers, determined a detective’s testimony about what a nontestifying accomplice (Andy Dabydeen) said violated defendant’s right to confront the witnesses against him. Although defense counsel did not object to the detective’s testimony, the defendant himself objected after the fact, citing Crawford v Washington, 541 US 51, which preserved the issue for appeal:

After the defendant continued to deny any involvement in the murder, the detective confronted him by saying that “Andy had told us what had happened.” The detective further testified that, shortly thereafter, upon returning from the bathroom, the defendant reacted to that information by stating that he could not believe that Dabydeen had “snitched” on him. …

… [W]e find that the defendant’s objection—albeit made after the detective had finished testifying and the People had rested—was sufficiently specific to draw the Supreme Court’s attention to the Sixth Amendment Confrontation Clause problems attendant to the People’s use, as part of their case-in-chief, of Dabydeen’s out-of-court testimonial statement directly implicating the defendant in the murder. …

This is not to suggest that the People are precluded from giving some context to the defendant’s statement that Dabydeen had “snitched” on him. We merely emphasize that the People could have done so without disclosing the substance of Dabydeen’s incriminating statement … . People v Lockley, 2021 NY Slip Op 06192, Second Dept 11-10-21

 

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THE ISSUE WHETHER THE STATUTORY REQUIREMENT THAT OBJECTIONS TO CHILD SUPPORT ORDERS BE RULED ON WITHIN 15 DAYS WAS CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE; THE 15-DAY RULE IS MANDATORY AND MUST BE ENFORCED; THE MOTHER WAS ENTITLED TO ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT BECAUSE HER ACTION WAS THE CATALYST FOR THIS DECISION (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Mazzarelli, determined: (1) the issue whether objections to child support rulings must be ruled on within 15 days (Family Court Act 439(a)) will be considered on appeal as an exception to the mootness doctrine; (2) under the Equal Access to Justice Act (EAJA) (CPLR 8600, et seq) mother-petitioner was entitled to attorney’s fees because her action served as a catalyst to this decision enforcing the 15-day rule:

The mother has established that this is not the first time in this case that the issue has arisen. Further, the issue is not likely to be resolved without application of the exception, because the Family Court can so easily obviate it by issuing a decision on the objections, albeit after the expiration of the 15 days. Courts have applied the exception under similar circumstances … . * * *

The statute is mandatory insofar as it plainly states that the court “shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it … . * * *

Because the CAJ [Chief Administrative Judge, NYC Family Court] responded to the mother’s petition by assigning a Family Court judge to rule on her objections, and because the CAJ offers no substantial justification for not having enforced Family Court Act § 439(e) before the petition was filed, the matter should be remanded for an assessment of the mother’s attorneys’ fees under the State EAJA. Matter of Liu v Ruiz, 2021 NY Slip Op 06089, First Dept 11-9-21

 

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THE EMAIL EXCHANGE BETWEEN THE ATTORNEYS IN THIS PERSONAL INJURY ACTION CONSTITUTED AN ENFORCEABLE SETTLEMENT WHICH WAS UNAFFECTED BY THE SUBSEQUENT GRANTING OF DEFENDANTS’ SUMMARY JUDGMENT MOTION (SECOND DEPT).

The First Department, reversing Supreme Court, determined the email exchange between attorneys constituted an enforceable settlement of the personal injury action which was unaffected by the subsequent granting of summary judgment to the defendants:

The settlement agreement was stated in an email communication in which plaintiffs’ counsel stated, “This is to confirm settlement in the sum of $275,000. Please send release language and parties to be released.” Later that day, plaintiffs’ counsel sent a follow-up email, stating, “Please confirm we are settled.” Sea Crest’s counsel responded, “Confirmed. I’ll have release information to you ASAP.” …

The emails, which reduced the settlement to a writing in accordance with CPLR 2104, were “subscribed” within the meaning of the statute, as the sender was identifiable and there was no contention that Sea Crest’s counsel did not send any of the emails intentionally … . Rawald v Dormitory Auth. of the State of N.Y., 2021 NY Slip Op 06109, First Dept 11-9-21

 

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THE ACTION WAS NOT COMMENCED UNTIL TEN DAYS BEFORE THE STATUTE OF LIMITATIONS EXPIRED AND PLAINTIFF’S COUNSEL DID NOT TIMELY COMPLETE SERVICE BY MAILING THE SUMMONS AND COMPLAINT; PLAINTIFF WAS NOT ENTITLED TO AN EXTENSION OF TIME TO SERVE THE DEFENDANT BECAUSE LAW OFFICE FAILURE PRECLUDED AN EXTENSION FOR GOOD CAUSE AND THE LACK OF DILIGENCE PRECLUDED AN EXTENSION IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department determined plaintiff did not demonstrate could good cause for failing to timely mail the summons and complaint to defendant and was not entitled to an extension of time to serve the defendant in the interest of justice. The court noted that law-office-failure precludes an extension for good cause, and the attorney’s lack of diligence in filing the action (ten days before the expiration of the statute of limitations) and in serving the pleadings ruled out an extension in the interest of justice:

The plaintiff failed to demonstrate that she was entitled to an extension of time to serve Marin [defendant] for good cause, as she failed to establish that she exercised reasonably diligent efforts in attempting to effect proper service … . The plaintiff’s attorney’s mistake in failing to note, until pointed out in the defendants’ reply papers, that Marin had not been served by mail, amounts to law office failure, which does not constitute good cause … .

… [T]he plaintiff failed to establish her entitlement to an extension of time for service in the interest of justice given the lack of diligence in commencing the action, which was not commenced until 10 days before the statute of limitations expired; the lack of diligence in effecting service; the more than six-month delay between the time the summons and complaint were filed and the time the plaintiff’s cross motion, inter alia, for an extension was made; and the lack of an excuse, other than law office failure, for the failure to effect timely service … . Jordan-Covert v Petroleum Kings, LLC, 2021 NY Slip Op 05960, Second Dept 11-3-21

 

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