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THE DEFENDANT’S EXECUTION OF A POWER OF ATTORNEY IN FAVOR OF HER (NON-ATTORNEY) HUSBAND DID NOT AUTHORIZE HER HUSBAND TO FILE COURT PAPERS ON HER BEHALF IN RESPONSE TO PLAINTIFF’S ACCOUNT STATED ACTION; THE HUSBAND’S REPRESENTATION OF DEFENDANT IS PROHIBITED BY THE JUDICIARY LAW (SECOND DEPT).

The Second Department determined defendant’s husband could not represent the defendant in this account stated action based upon his holding a power of attorney executed by the defendant:

The plaintiff commenced this action, inter alia, to recover on an account stated, alleging that the defendant failed to pay sums due on her credit card account. Following service of the summons and complaint, the defendant’s husband, James W. Gilliam II (hereinafter Gilliam), purportedly in his capacity as the defendant’s attorney-in-fact by short form power of attorney, in accordance with New York General Obligations Law §§ 5-1502A-N, filed with the court an answer and certain cross claims on behalf of the defendant. …

“New York law prohibits the practice of law in this State on behalf of anyone other than himself or herself by a person who is not an admitted member of the Bar, regardless of the authority purportedly conferred by execution of a power of attorney” … . The designation as an attorney-in-fact under General Obligations Law §§ 5-1502A-N does not confer upon a designated agent the right to provide representation as an attorney-at-law, and “cannot be read to displace the provisions of Judiciary Law § 478” … . Discover Bank v Gilliam, 2021 NY Slip Op 05949, Second Dept 11-3-21

 

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FAMILY COURT DID NOT ENSURE FATHER’S WAIVER OF HIS RIGHT TO COUNSEL IN THIS CUSTODY MODIFICATION PROCEEDING WAS KNOWING, INTELLIGENT AND VOLUNTARY; NEW HEARING ORDERD (SECOND DEPT).

The Second Department, ordering a new modification of custody hearing, determined Family Court did not ensure that father’s waiver of his right to counsel was voluntarily and intelligently made:

In order to determine whether a party has validly waived the right to counsel, a court must conduct a “searching inquiry” to ensure that the waiver has been made knowingly, voluntarily, and intelligently … . “While there is no rigid formula to be followed in such an inquiry, and the approach is flexible, the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … . “For example, the court may inquire about the litigant’s ‘age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … . Here, the Family Court did not conduct a sufficiently searching inquiry to ensure that the father’s waiver of his right to counsel was knowingly, voluntarily, and intelligently made … .

… “[T]he deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding requires reversal, without regard to the merits of the unrepresented party’s position … . Matter of Lherisson v Goffe, 2021 NY Slip Op 05856, Second Dept 10-27-21

 

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DEFENDANT WAS NOT ADEQUATELY INFORMED ABOUT HIS SENTENCING EXPOSURE, THE NATURE OF THE CHARGES AND THE RISKS OF REPRESENTING HIMSELF; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant was not adequately warned about the risks of representing himself:

The record “does not sufficiently demonstrate that defendant was aware of his actual sentencing exposure” … , including the potential for his sentences in two pending cases, arising from unrelated incidents, to run consecutively. The court also failed to inquire into defendant’s understanding of “the nature of the charges” … . This despite defendant’s admission that he did “[n]ot necessarily” understand the charges in one case and was “still coming to grips with the charges” in the other case. The court’s statement during the waiver colloquy that defendant was “facing felony charges” was inadequate for that purpose.

Moreover, the court’s inquiry did not “accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … . The court failed to warn defendant about the numerous pitfalls of representing himself before and at trial, such as unfamiliarity with legal terms, concepts, and case names; the potential challenges of cross-examining witnesses and delivering an opening statement and summation as a pro se criminal defendant. While there is no mandatory “catechism for this inquiry,” there must be a “searching inquiry” conducted by a court before permitting self-representation … . Under the particular circumstances of this case, we find that defendant’s waiver of his right to counsel was not knowing, intelligent, and voluntary. People v Perry, 2021 NY Slip Op 05826, First Dept 10-26-21

 

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PURSUANT TO CPLR 3408 (B), WHEN DEFENDANTS IN THIS FORECLOSURE ACTION APPEARED WITHOUT COUNSEL AT THE SETTLEMENT CONFERENCE, SUPREME COURT SHOULD HAVE DETERMINED WHETHER THEY WERE ENTITLED TO ASSIGNED COUNSEL, MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter for a finding whether defendants in this foreclosure action are eligible for assigned counsel, determined the judge did not comply with CPLR 3408 (b) at the settlement conference:

[CPLR 3408 (b)] provides that, at the initial foreclosure settlement conference, “any defendant currently appearing pro se[] shall be deemed to have made a motion to proceed as a poor person under [CPLR 1101]. The court shall determine whether such permission shall be granted pursuant to standards set forth in [CPLR 1101]” (CPLR 3408 [b]). Because defendants appeared at the June 2016 settlement conference without representation, each was “deemed to have made a motion to proceed as a poor person” and Supreme Court was required to determine such motion (CPLR 3408 [b]). Although Supreme Court erred in failing to adhere to its obligations under CPLR 3408 (b), the question remains whether defendants would have been eligible for the assignment of counsel based upon their financial circumstances. The record does not contain adequate information to render such a determination (see CPLR 1101 [a]). The eligibility for assigned counsel is a threshold issue that must be resolved before we can determine the merits of this appeal. As such, we withhold decision and remit the matter to Supreme Court to render a determination as to defendants’ eligibility for assigned counsel as of the June 2016 settlement conference … . Carrington Mtge. Servs., LLC v Fiore, 2021 NY Slip Op 05743, Third Dept 10-21-21

 

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THE TRIAL JUDGE DID NOT GIVE COUNSEL MEANINGFUL NOTICE OF A SUBSTANTIVE JURY NOTE; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, ordering a new trial, determined the trial judge did not give counsel meaningful notice of a substantive jury note:

Pursuant to CPL 310.30, when a trial court receives a substantive jury inquiry, the court has two separate duties: “the duty to notify counsel and the duty to respond”… . With regard to the former duty, the court must provide counsel “notice of the actual specific content of the jurors’ request” … . A “trial court’s failure to provide counsel with meaningful notice of a substantive jury note is a mode of proceedings error that requires reversal” … .

Here, although marked as a court exhibit, the trial transcript does not reflect that the Supreme Court showed or read verbatim to counsel a jury note, which stated: “We would like the DNA results in regards to the blood smear on the banister.” People v Carillo, 2021 NY Slip Op 05710, Second Dept 10-20-21

 

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IN A FORECLOSURE ACTION, ANY DEFICIENCIES IN PLAINTIFF’S COUNSEL’S CERTIFICATE OF MERIT (CPLR 3012-B) CAN NOT BE THE BASIS FOR DEFENDANT’S MOTION TO DISMISS ALLEGING PLAINTIFF’S LACK OF STANDING (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, over a partial dissent, determined deficiencies in the certificate of merit filed by plaintiff’s counsel in this foreclosure action (pursuant to CPLR 3012-b) cannot be the basis for defendants’ motion to dismiss alleging plaintiff’s lack of standing:

This appeal implicates the extent to which there is interplay between a CPLR 3211(a) motion to dismiss in the context of a residential mortgage foreclosure action, the attorney certification requirements of CPLR 3012-b, and the moving party’s burden of proof. For reasons analyzed below, we hold that a defendant moving to dismiss a complaint on the ground of the plaintiff’s lack of standing does not meet the affirmative burden of proof by merely relying upon any defects that might exist with the certificate of merit submitted by the plaintiff’s attorney under CPLR 3012-b, or otherwise, if the certificate of merit fails to address all potential aspects of standing. * * *

… [I]n a mortgage foreclosure action, a motion to dismiss pursuant to CPLR 3211(a) on the ground of the plaintiff’s lack of standing is not necessarily determined based on the adequacy or inadequacy of the certificate of merit filed by the plaintiff’s counsel pursuant to CPLR 3012-b. … The complaint serves the legal purpose of giving notice to defendants of the transactions, occurrences, or series of transactions or occurrences intended to be proved, and the material elements of each cause of action … . The certificate of merit serves the ministerial and ethical purpose of requiring counsel to take good faith steps to assure that the action has merit, and to certify to the best of counsel’s knowledge, information, and belief that a reasonable basis exists for commencing the action and that the plaintiff has standing to recover on the note underlying the action.

Counsel’s reasonable beliefs contained in a certificate of merit are irrelevant to whether defendants, in moving to dismiss a complaint under CPLR 3211(a), establish their own defined burden of proof for the dispositive relief of dismissal. Wilmington Sav. Fund Socy., FSB v Matamoro, 2021 NY Slip Op 05741, Second Dept 10-20-21

 

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DEFENDANT’S WAIVER OF APPEAL WAS UNENFORCEABLE; “DIFFICULTIES” BETWEEN DEFENDANT AND TWO ATTORNEYS ASSIGNED TO REPRESENT HIM DID NOT AMOUNT TO DEFENDANT’S FORFEITURE OF HIS RIGHT TO COUNSEL, AS THE TRIAL JUDGE HAD RULED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined defendant’s waiver of appeal was not valid and the trial judge had violated defendant’s right to counsel by essentially forcing defendant to represent himself after several attorneys had withdrawn. Of all the attorneys who had withdrawn, only two cited difficulties with the defendant. The cited “difficulties” were defendant’s “raised voice” and “lack of cooperation.” There were no allegations of threats or abusive conduct. The other attorneys had withdrawn citing a conflict of interest, illness and leaving the state:

… [D]efendant’s waiver in the case before us did not contain “clarifying language . . . that appellate review remained available for certain issues” … . Indeed, the written appeal waiver and the colloquy utterly failed to indicate that some rights to appeal would survive the waiver. Moreover, the written waiver implied that defendant was completely waiving his right “to prosecute [an] appeal as a poor person, and to have an attorney assigned” if indigent.

Defendant’s appeal waiver thus mischaracterized the nature of the waiver of appeal by suggesting that the waiver included an absolute bar to the taking of a first-tier direct appeal and the loss of attendant rights to counsel and poor person relief … . * * *

There may be circumstances where a defendant who refuses to cooperate with successive assigned attorneys is ultimately deemed to have forfeited the right to assigned counsel, although such an individual must be afforded the opportunity to retain counsel. … There is record evidence of only two attorneys who asked to be relieved due to difficulties with defendant. … County Court’s own orders relieving Miosek, Taylor, Carlson, and Scott cited conflict of interest, illness, or departure from the state, not attorney-client animosity. Such factors were beyond defendant’s control. People v Shanks, 2021 NY Slip Op 05450, CtApp 10-12-21

 

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AN AFFIDAVIT WITH A PARTY STATEMENT AND A NON-PARTY AFFIDAVIT WHICH WERE NOT DISCLOSED SHOULD HAVE BEEN CONSIDERED IN OPPOSTION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE (FOURTH DEPT)

The Fourth Department, reversing Supreme Court and reinstating the complaint in this dog-bite case, determined an affidavit which should have been disclosed because it contained the statement of a party was admissible in opposition to defendant’s motion for summary judgment (the Davis affidavit). In addition, the affidavit of a non-party witness should have been considered by the court (the Cheetham affidavit). Even if the discovery demands are read to include the non-party affidavit, the affidavit was privileged as material prepared for litigation and therefore not discoverable. Supreme Court had precluded both affidavits on the ground they had not been disclosed:

… [W]e agree with the court that the affidavit of Davis, insofar as it contained a party statement of defendant, should have been disclosed. CPLR 3101 (e) “enables a party to unconditionally obtain a copy of his or her own statement[,] creating an exception to the rule that material prepared for litigation is ordinarily not discoverable” … . We nevertheless agree with plaintiff that the court abused its discretion in precluding Davis’s affidavit from consideration in opposition to the motion … . Defendant knew of Davis as a person of interest, which is why counsel sought to depose her approximately four months prior to making the motion, and defendant did not seek the assistance of the court to compel Davis’s production … . Inasmuch as plaintiff is not precluded from relying on Davis’s affidavit to oppose summary judgment, Davis is not precluded from testifying at trial … .

We also conclude that the court abused its discretion in precluding the Cheetham affidavit from consideration. Cheetham was listed as a witness in discovery and was deposed. Cheetham is not a party to this action, and his affidavit did not include any statements of a party. Even assuming that Cheetham’s statement was discoverable, we note that defendant’s discovery demands did not include a demand for nonparty witness statements. Assuming further that defendant’s discovery demands could be read to include a request for the statement of a nonparty witness, i.e., Cheetham, we conclude that Cheetham’s statement was conditionally privileged as material prepared in anticipation of litigation (see CPLR 3101 [d] [2 …). Defendant would be unable to show any substantial need for Cheetham’s statement inasmuch as Cheetham was deposed and therefore provided the substantial equivalent of the material contained in the statement … . Vikki-lynn A. v Zewin, 2021 NY Slip Op 05412, Fourth Dept 10-8-21

 

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PLAINTIFF AND HIS ATTORNEY SENT 75 LETTERS TO HARASS DEFENDANTS; SANCTIONS FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN IMPOSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff should have been sanctioned for harassing defendants:

In 2015, the plaintiff commenced this shareholder’s derivative action. After the action was commenced, the plaintiff and his attorney sent approximately 75 letters to various defendants, as well as those defendants’ family members, clergy, and attorneys. Therein, the plaintiff made disturbing references, among other things, to plagues, repentance, imprisonment, and punishment by the Internal Revenue Service for tax fraud. …

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party’s attorney for frivolous conduct. Conduct is “frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1[c]). “A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of proof” … .

… [T]he defendants established that the plaintiff’s conduct in sending the subject letters was calculated to harass the defendants … . Glaubach v Slifkin, 2021 NY Slip Op 05323, Second Dept 10-7-21

 

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