You are here: / Attorneys
, , ,

PLAINTIFFS RAISED A QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE RENDERED THE LEGAL MALPRACTICE ACTION TIMELY; REFERENCE TO THE “ENFORCEMENT” OF THE LOAN DOCUMENTS INDICATED THE POSSIBILITY OF REPRESENTATION AFTER THE DATE OF THE LOAN TRANSACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs raised a question of fact whether the continuous representation doctrine rendered the legal malpractice action timely:

The continuous representation doctrine tolls the limitations period “where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” … , and ” ‘where the continuing representation pertains specifically to [that] matter’ ” … . Here, plaintiffs submitted communication between the Florida attorney and defendants in which the Florida attorney indicated that defendants’ role as New York counsel included “enforcement” of the 2014 loan transaction documents. … [W]e conclude that questions of fact exist regarding the extent of defendants’ representation of plaintiffs and, more specifically, whether “enforcement” of the loan documents contemplated a continued representation until the loan was paid in full and the transaction completed. Ray-Roseman v Lippes Mathias Wexler Friedman, LLP, 2021 NY Slip Op 04841,, Fourth Dept 8-26-21

 

, ,

DEFENDANT WAS ENTITLED TO A HEARING ON THE MOTION TO VACATE THE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS DESPITE THE ABSENCE OF AN AFFIDAVIT FROM TRIAL COUNSEL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant was entitled to a hearing on the motion to vacate the conviction on ineffective assistance grounds, despite the absence of an affidavit from trial counsel:

[Defendant’s] claim of ineffective assistance of counsel was properly raised on his CPL 440.10 motion inasmuch as it is based on matters outside the trial record … . Here, defendant’s submissions on the motion raise factual issues requiring a hearing concerning trial counsel’s failure to interview and call the two exculpatory witnesses … , even in the absence of an affidavit from trial counsel … . We thus conclude that defendant is entitled to a hearing on his entire claim of ineffective assistance of counsel inasmuch as ” ‘such a claim constitutes a single, unified claim that must be assessed in totality’ ” … . People v Ross, 2021 NY Slip Op 04820, Fourth Dept 8-26-21

 

, , ,

THE DEFENDANT’S CONCLUSORY AFFIDAVIT BLAMING THE DEFAULT JUDGMENT ON HIS PRIOR ATTORNEY WAS NOT A SUFFICIENT BASIS FOR VACATING THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s (Echevarria’s) affidavit blaming the default in this foreclosure action on his prior attorney was not sufficient to support vacating the default judgment:

… [W]hile CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature’s intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse” … . “A conclusory, undetailed and uncorroborated claim of law office failure does not amount to a reasonable excuse” … .

Echevarria submitted an affidavit in which he asserted that his defaults “were due entirely to [the] negligence” of his prior attorney, who, without Echevarria’s knowledge, failed to file an answer to the complaint or opposition to the plaintiff’s motion for leave to enter a default judgment against Echevarria. According to his affidavit, Echevarria only learned of the defaults upon receiving notice of the foreclosure sale. We agree with the plaintiff that Echevarria’s claim of law office failure, which was based solely on the “conclusory and unsubstantiated” allegations in his affidavit, was insufficient to amount to a reasonable excuse … . Wilmington Sav. Fund Socy., FSB v Rodriguez, 2021 NY Slip Op 04784, Second Dept 8-25-21

 

, , , ,

DEFENDANTS PREVAILED IN A SUIT BY PLAINTFF COOPERATIVE PURSUANT TO A PROPRIETARY LEASE; THEREFORE DEFENDANTS WERE ENTITLED TO ATTORNEY’S FEES PURSUANT TO REAL PROPERTY LAW 234 EVEN THOUGH THE ISSUE WAS NOT RAISED IN A COUNTERCLAIM (SECOND DEPT).

The Second Department determined defendants, who prevailed in an action against them by plaintiff cooperative apartment corporation, was entitled to attorney’s fees pursuant to Real Property Law 234 even though that theory was not pled as a counterclaim:

As the prevailing parties to the action commenced against them by the plaintiff pursuant to the proprietary lease, which contained a provision entitling the plaintiff, as lessor, to attorney’s fees incurred in instituting an action against a lessee based on the lessee’s default, the defendants were entitled to attorney’s fees pursuant to Real Property Law § 234, which “provides for the reciprocal right of a lessee to recover an attorney’s fee when the same benefit is bestowed upon the lessor in the parties’ lease” … .

The defendants were entitled to an award of attorney’s fees pursuant to Real Property Law § 234, despite their failure to plead that cause of action as a counterclaim in their answer, since the evidence supported the claim and the plaintiff was not misled or prejudiced by their failure to plead the cause of action … . Round Dune, Inc. v Filkowski, 2021 NY Slip Op 04771, Second Dept 8-25-21

 

, , ,

THE JUDGE’S LAW CLERK WAS A DA WHO HAD WORKED ON DEFENDANT’S CASE; THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE SENTENCING (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge should have recused himself from the sentencing because his law clerk was a former DA who had worked on the case. The issue was not preserved but was considered in the interest of justice:

The defendant’s contention that the trial justice should have recused himself from presiding over the sentencing proceeding, on the ground that the justice’s law clerk was a former Queens County Assistant District Attorney who, in that capacity, had worked on the early stages of this case, is unpreserved for appellate review. We nevertheless reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.05[2]). For the reasons discussed in our decision and order on an appeal by the defendant’s codefendant (People v Hymes, 193 AD3d 975), the trial justice should have recused himself from presiding over the sentencing proceeding (see People v Suazo, 120 AD3d 1270).

Accordingly, we vacate the sentence imposed, and remit the matter to the Supreme Court, Queens County, for resentencing before a different Justice. People v McPhee, 2021 NY Slip Op 04723, Second Dept 8-18-21

 

, ,

MURDER SECOND COUNTS WERE INCLUSORY CONCURRENT COUNTS OF MURDER FIRST AND SHOULD HAVE BEEN DISMISSED; FORMER APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the second degree murder counts should have been dismissed as inclusory concurrent counts of first degree murder, and the former appellate counsel was ineffective in failing to raise that issue:

… [F]ormer appellate counsel was ineffective for failing to contend on appeal that … the defendant’s convictions of murder in the second degree, and the sentences imposed thereon, must be vacated, and those counts of the indictment dismissed, because those charges are inclusory concurrent counts of the conviction of murder in the first degree … . People v Davis, 2021 NY Slip Op 04720, Second Dept 8-18-21

 

, , ,

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

 

, ,

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

 

,

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

 

, , ,

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

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy