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SUPREME COURT SHOULD NOT HAVE DISMISSED THE COMPLAINT IN THIS SLIP AND FALL CASE ON THE GROUND THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WAS UNOPPOSED; PLAINTIFF’S COUNSEL WAS UNDER THE IMPRESSION THE PARTIES STIPULATED TO AN ADJOURNED DATE; LEAVE TO APPEAL GRANTED IN THE INTERST OF JUSTICE; SUMMARY JUDGMENT DENIED ON THE MERITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the building owner’s (Findlay’s) motion for summary judgment in this wet-floor slip and fall case should not have been granted. Supreme Court had treated the motion as unopposed. However, plaintiff’s counsel was under the impression the parties had stipulated to an adjourned date. Leave to appeal was granted in the interest of justice. On the merits, plaintiff raised a question of fact about the adequacy of the “wet floor” warning:

[Supreme Court’s] order was not made upon notice and is not appealable as of right (CPLR 5701[a]). However, this Court is authorized to deem a notice of appeal a request for leave to appeal and to grant such leave for a determination on the merits in the interest of justice (CPLR 5701[c] …). Given the facts of this case, this Court grants plaintiff leave to appeal in the interest of justice. Relying on CPLR 2214 and 2004, the motion court dismissed the complaint because plaintiff’s counsel did not offer a valid explanation for his late filing. However, counsel filed his opposition pursuant to what he thought was a valid stipulation.  …

Given the T-shaped nature of the hallway in this case, there are issues of fact as to whether the first warning sign was adequate, especially since the floor in that area was dry. Indeed, “[t]he mere placement of a “wet floor warning sign does not automatically absolve a defendant of negligence” … . We also note that this housing development housed primarily elderly and handicapped individuals. Zubillaga v Findlay Teller Hous. Dev. Fund Corp., 2021 NY Slip Op 04687, First Dept 8-12-21

 

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THE PROSECUTOR’S REMARKS REQUIRED REVERSAL AND A NEW TRIAL ON ONE COUNT (SECOND DEPT).

The Second Department reversed defendant’s conviction on one count (attempted assault), in the interest of justice (i.e. the issue was not preserved), based upon prosecutorial misconduct:

The prosecutor made a number of improper comments during her summation by improperly vouching for the credibility of the People’s witnesses, interjecting sympathy, improperly advising the jurors on the law, and making herself an unsworn witness … .For example, when discussing the charge of attempted assault in the first degree, the prosecutor attempted to explain why no shell casings were recovered by informing the jurors that “unfortunately [the Evidence Crime Team] confine[d] themselves to where the crime scene tape was,” although no such evidence exists in the record. … [T]he prosecutor referred to testimony that had been stricken … when she told the jury that … the defendant could have shot one of the witnesses. The prosecutor also informed the jury that the voice of that same witness could be heard screaming on an audio recording of a call to the 911 emergency number. The prosecutor also twice erroneously advised the jury that its credibility determination should be based on, among other things, “what [the jurors] felt” … , and, when discussing the credibility of the prosecution’s witnesses, instructed the jury that the criminal history of one of the prosecution’s witnesses was not relevant to the question of that witness’s credibility. People v Veeney, 2021 NY Slip Op 04673, Second Dept 8-11-21

 

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DEFENDANT DID NOT DEMONSTRATE HE DID NOT ENTER HIS GUILTY PLEA VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY; HIS MOTION TO WITHDRAW HIS PLEA WAS PROPERLY DENIED; STRONG DISSENT ARGUED DEFENDANT DEMONSTRATED AN INADQUATE OPPORTUNITY TO CONSULT WITH DEFENSE COUNSEL (SECOND DEPT).

The Second Department, over an extensive dissent, determined defendant entered his guilty plea voluntarily, knowingly and intelligently. Therefore, defendant’s motion to withdraw his plea was properly denied. The dissent argued defendant demonstrated he did not have an adequate opportunity to consult with defense counsel:

The defendant … contended in his motion that he had inadequate opportunity to speak with his counsel regarding the case and any defenses. However, … when the plea court endeavored to inquire further as to an equivocal statement by the defendant that he was able to discuss “some” of the facts of the case with his counsel, the defendant terminated that inquiry, and confirmed that he had sufficient time to speak with his attorney. The defendant also does not dispute the People’s assertion that, while the defendant was out on bail, he and defense counsel met with the prosecutor to view surveillance video allegedly depicting the explosives and reckless endangerment crimes.  * * *

… [T]he record here demonstrates that the defendant was feeling pressure to decide whether to plead guilty and be remanded or face greater charges if the People presented the matter to the grand jury. Indeed, the defendant’s precise words were: “I am forced to plead because they don’t—they will put me in the Grand Jury.” However, as this Court has observed: “When offered benefits for pleading guilty and confronted with the risk of more severe punishment if a plea offer is refused, a defendant will certainly feel pressure to plead guilty. But such pressure does not render a guilty plea involuntary because ‘the imposition of these difficult choices [is] an inevitable—and permissible—attribute of any legitimate system which tolerates and encourages the negotiation of pleas'” … . People v Hollman, 2021 NY Slip Op 04617, Second Dept 8-4-21

 

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IN THIS FORECLOSURE ACTION PLAINTIFF’S ATTORNEY DID NOT FILE AN AFFIRMATION AS REQUIRED BY AN ADMINSTRATIVE ORDER; THE MAJORITY DID NOT ADDRESS THE ISSUE BECAUSE IT SHOULD HAVE BEEN RAISED IN A PRIOR APPEAL WHICH DEFENDANT DID NOT PERFECT; THE DISSENT ARGUED THE ISSUE COULD AND SHOULD BE CONSIDERED ON THIS APPEAL (THIRD DEPT).

The Third Department, over a dissent, determined defendant in this foreclosure action could not raise the plaintiff’s failure to comply with an Administrative Order (AO) because it could have been raised on a prior appeal which was not perfected. The dissent argued the court could and should address the “AO” issue on this appeal:

From the dissent:

… [A] plaintiff’s attorney is required to affirm after conferring with a representative of the plaintiff and upon the attorney’s “own inspection and other reasonable inquiry” that the pleadings and submissions “contain no false statements of fact or law.”  …

… [P]laintiff’s attorney was required to file the affidavit conforming with AO/431/11 and AO/208/13, an issue that was directly raised in defendant’s motion to vacate and could have been addressed by this Court had defendant perfected his appeal from the court’s April 2018 order. In an instance such as this, this Court “has the authority to entertain a second appeal in the exercise of [our] discretion, even where a prior appeal on the same issue has been dismissed for failure to prosecute” … . Given that the filing of an attorney affirmation is mandatory and, at the latest, must be filed five business days before a scheduled auction … , I believe we should exercise our discretion and address the issue of noncompliance (id.). To assure the integrity of the foreclosure process, which is the entire objective of the Administrative Orders, we should modify the order by requiring a continued stay of any auction sale pending the submission of a compliant attorney affirmation. HSBC Bank USA, N.A. v Sage, 2021 NY Slip Op 04583, Third Dept 7-29-21

 

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ALTHOUGH NO OBJECTIONS WERE MADE TO THE PROSECUTOR’S NUMEROUS INAPPROPRIATE REMARKS, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE AND A NEW TRIAL WAS ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined prosecutorial misconduct deprived defendant of a fair trial. The errors were not preserved by objections, but the appeal was considered in the interest of justice. The prosecutor’s remarks are detailed in the decision and are too numerous to include here:

The prosecutor denigrated any possible defense, invoked the jury’s sympathy for the complainants based upon irrelevant evidence, vouched for the credibility of the People’s witnesses, and misstated the law on circumstantial evidence … . People v Beck, 2021 NY Slip Op 04556, Second Dept 7-28-21

 

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A STAY OF THE FORECLOSURE PROCEEDINGS WAS TRIGGERED BY THE SUSPENSION OF DEFENDANT’S ATTORNEY; BUT THE APPEARANCE OF NEW COUNSEL FOR THE DEFENDANT TO OPPOSE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAIVED THE PROTECTION OF THE STAY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon,, determined the defendant in this foreclosure action waived any stay of proceedings under CPLR 321(c) triggered by her attorney’s suspension:

CPLR 321(c) … provides any adversary party with a mechanism for lifting a stay—by serving a notice upon the nonrepresented party to obtain a new attorney.  Thus there are … two ways in which a CPLR 321(c) stay may be lifted. One way is if the party that lost its counsel retains new counsel at its own initiative, or otherwise communicates an intention to proceed pro se … . The second way is by means of the above-described notice procedure … . …

… [T]he plaintiff moved … for summary judgment … and for an order of reference … at a time when no event allowing for the lifting of the CPLR 321(c) stay had yet occurred. No new attorney had yet appeared on behalf of the defendant, and there is no indication that the defendant had elected to proceed pro se … . Moreover, the plaintiff moved for summary judgment without having served a CPLR 321(c) notice demanding the appointment of new counsel and without abiding by the statutorily mandated 30-day waiting period that follows the notice.

Nevertheless, the defendant’s new counsel formally appeared in the action six days after the plaintiff’s summary judgment motion was filed, submitted papers in opposition to that motion, and cross-moved to dismiss the complaint insofar as asserted against the defendant, all within the original or adjusted briefing schedule. … The appearance and activities of the defendant’s new counsel operated, in effect, as a waiver of the protections otherwise afforded to the defendant by CPLR 321(c) … . Wells Fargo Bank, N.A. v Kurian, 2021 NY Slip Op 04509, Second Dept 7-31-21

 

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MOTHER’S ATTORNEY SHOULD NOT HAVE BEEN ALLOWED TO WITHDRAW WITHOUT NOTICE TO MOTHER WHO DID NOT ATTEND THE TERMINATION-OF-PARENTAL-RIGHTS HEARING; THE DEFAULT ORDER TERMINATING MOTHER’S PARENTAL RIGHTS WAS THEREFORE IMPROPER AND APPEAL IS NOT PRECLUDED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the default order terminating mother’s parental rights was improper because mother’s attorney was allowed to withdraw without notice to mother. Because the default order was improper, mother’s appeal is not precluded (default orders are not appealable):

In this proceeding pursuant to Social Services Law § 384-b,respondent mother contends that Family Court erred in allowing the mother’s attorney to withdraw as counsel and in proceeding with the hearing in the mother’s absence. We agree. ” ‘An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client . . . [, and a] purported withdrawal without proof that reasonable notice was given is ineffective’ ” … . Because there is no indication in the record that the mother’s attorney informed her that he was seeking to withdraw as counsel, the court should not have relieved him as counsel … . Although, generally, no appeal lies from an order entered on default (see CPLR 5511 …), here, the absence of evidence that the mother was put on notice of her attorney’s motion to withdraw renders the finding of default improper, and thus the mother’s appeal is not precluded … . We therefore reverse the order and remit the matter to Family Court for the assignment of new counsel and a new hearing … . Matter of Calvin L.W. (Dominique H.), 2021 NY Slip Op 04470, Fourth Dept 7-15-21

 

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PLAINTIFF’S ATTORNEY’S EMAIL WAS AN ENFORCEABLE STIPULATION OF SETTLEMENT; PLAINTIFF’S SUBSEQUENT REFUSAL TO EXECUTE THE DOCUMENTS WAS A BREACH OF THE SETTLEMENT AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined an email sent by plaintiff’s attorney constituted an enforceable stipulation of settlement, despite the fact that plaintiff subsequently refused to execute the documents:

… [T]he requirements for a valid and enforceable settlement agreement are satisfied here. The email from plaintiff’s lawyer to defendant’s lawyer contained the only two material terms of the agreement, i.e., defendant’s payment of $32,500 to plaintiff in exchange for plaintiff’s release of defendant from further liability; the email plainly manifested the parties’ mutual accord, i.e., “[plaintiff] has informed me that he would like to accept the $32,500 settlement [offered by defendant]”; and the lawyer representing the party to be bound, i.e., plaintiff, explicitly typed his name at the end of the email in a manner akin to a hand-signed letter. Nothing more was required, and plaintiff’s “subsequent refusal to execute form releases and a stipulation of discontinuance did not invalidate the agreement” … . To the contrary, plaintiff’s subsequent refusal to execute the necessary releases and stipulation constituted a breach of the parties’ valid settlement agreement. The court thus erred in denying defendant’s cross motion to enforce the settlement agreement … . Field v Pet Haven, Inc., 2021 NY Slip Op 04450, Fourth Dept 7-16-21

 

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A SETTLEMENT EMAIL WILL BE DEEMED SIGNED BY THE SENDING ATTORNEY WITHOUT RETYPING THE ATTORNEY’S NAME IN THE EMAIL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, overruling precedent, determined it is no longer necessary for an attorney to retype his or her name in an email stipulation of settlement. As long as  the attorney’s name appears in the “prepopulated” area of the email it will be deemed to have been signed by the attorney:

We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. Since 1999, New York State has joined other states in allowing, in most contexts, parties to accept electronic signatures in place of “wet ink” signatures. Section 304(2) of New York’s Electronic Signatures and Records Act (ESRA) provides: “unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.” Moreover, the statutory definition of what constitutes an “electronic signature” is extremely broad under the ESRA, and includes any “electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record” (State Technology Law § 302[a]). We find that if an attorney hits “send” with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own, then it is unnecessary for them to type their own signature. Matter of Philadelphia Ins. Indem. Co. v Kendall, 2021 NY Slip Op 04284, First Dept 7-8-21

 

PLAINTIFFS’ ATTORNEY PROPERLY WITHDREW ON IRRECONCILABLE DIFFERENCES GROUNDS AND WAS ENTITLED TO 95% OF THE CONTINGENCY FEE DESPITE THE FAILURE TO SUBMIT TIME RECORDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney, Greenberg, properly withdrew from representing the plaintiffs on the ground of irreconcilable differences and was entitled to 95% of the contingency fee:

Greenberg demonstrated its entitlement to an award of 95% of the contingency fee. “In fixing an award of legal fees in quantum meruit, a court should consider evidence of the time and skill required in the case, the complexity of the matter, the attorney’s experience, ability, and reputation, the client’s benefit derived from the services, and the fee usually charged by attorneys for similar services” … . “‘Quantum meruit compensation is not limited to a calculation based on the numbers of hours worked multiplied by a reasonable hourly rate'” … . “The calculation of an award of legal fees as a portion of a contingent fee and based on an hourly rate are both properly fixed as quantum meruit determinations” … . Here, the record demonstrates, inter alia, the extensive work performed on the case by Greenberg over a period of 4½ years, the nature of the work performed, and the relative contributions made by Greenberg, entitling it to 95% of the contingency fee. While Greenberg failed to submit time records in support of the services it rendered, the value of its services could still be ascertained … . Tucker v Schwartzapfel Lawyers, P.C., 2021 NY Slip Op 04250, Second Dept 7-7-21

 

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