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SPECIAL PROSECUTOR DID NOT HAVE THE AUTHORITY TO PROSECUTE A CRIMINAL OFFENSE ON BEHALF OF THE JUSTICE CENTER FOR PROTECTION OF PEOPLE WITH SPECIAL NEEDS; THE DISTRICT ATTORNEY DID NOT KNOWINGLY CONSENT AND DID NOT MAINTAIN CONTROL OVER THE PROSECUTION; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, determined that the special prosecutor did not have the authority to prosecute a substance abuse counselor who allegedly sexually abused a 16-year-old patient. The special prosecutor was from the Justice Center for Protection of People with Special Needs. Because the special prosecutor did not have have the knowing and express consent to the prosecution by the district attorney, the indictment was dismissed:

In 2012, the Legislature enacted the Protection of People with Special Needs Act (Executive Law § 550 et seq.) to protect individuals “who are vulnerable because of their reliance on professional caregivers to help them overcome physical, cognitive and other challenges” … by creating a new state agency, the Justice Center, and mandating, among other things, that it employ a special prosecutor appointed by the Governor (hereinafter the Special Prosecutor) to investigate and prosecute criminal offenses involving abuse and neglect of vulnerable persons by employees of specified types of facilities and service agencies … . Although the Act specifically authorizes the Special Prosecutor to “exercise all the powers and perform all the duties in respect of such actions or proceedings which the district attorney would otherwise be authorized or required to exercise or perform”… , it also prohibits the Special Prosecutor from “interfer[ing] with the ability of district attorneys at any time to receive complaints, investigate and prosecute any suspected abuse or neglect” … . …

… [T]here is no constitutional support for the Legislature’s attempt to provide for “the gubernatorial appointment of a non-elected special prosecutor, independent of the [d]istrict [a]ttorneys and with unfettered prosecutorial power” … . …

We turn … to consideration of whether the Albany County District Attorney validly consented to prosecution of defendant by the Special Prosecutor. … [T]he District Attorney did not exercise his essential prosecutorial power to determine whether defendant should be prosecuted but, rather, merely acquiesced in the prosecution by the Special Prosecutor, whom he mistakenly believed already possessed the independent power to prosecute defendant. Second, the District Attorney failed to expressly retain ultimate responsibility for defendant’s prosecution … . People v Hodgdon, 2019 NY Slip Op 05596, Third Dept 7-11-19

 

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ARTICLE 78 ACTION SEEKING TO PROHIBIT THE TRIAL JUDGE IN A CRIMINAL CASE FROM EXCLUDING TESTIMONY AS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE DISMISSED AS INAPPROPRIATE; MATTER CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department determined the Article 78 proceeding brought by the district attorney against the trial judge in a criminal case seeking prohibition should have been dismissed. The trial judge had ruled that the conversations between an attorney and the defendant at the scene of the crime were protected by attorney-client privilege. The Article 78 action sought to prohibit the trial judge from adhering to that ruling. At the time of this Article 78 proceeding the criminal trial was over and defendant had been convicted. The matter was considered as an exception to the mootness doctrine:

Prohibition is an extraordinary remedy and, in cases involving the exercise of judicial authority, “is available only where there is a clear legal right, and then only when a court . . . acts or threatens to act either without jurisdiction or in excess of its authorized powers” … . Respondent had jurisdiction over the criminal action against Mercer … and was empowered to preclude Doyle from testifying about matters protected by the attorney-client privilege … . Petitioner’s core complaint is that respondent erred in determining the scope of that privilege, and she may be correct … . Nevertheless, “prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power” … . To allow review of such matters would have an array of negative impacts, encouraging gamesmanship, “erect[ing] an additional avenue of judicial scrutiny in a collateral proceeding and . . . frustrat[ing] the statutory or even constitutional limits on review” … . Thus, inasmuch as petitioner does not point to “an unlawful use or abuse of the entire action or proceeding,” but rather “an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding,” prohibition will not lie … . Matter of Heggen v Sise, 2019 NY Slip Op 05620, Third Dept 7-10-19

 

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WITNESS DID NOT IDENTIFY THE DEFENDANT AT A LINEUP, SAYING ONLY SHE WAS ‘LEANING TOWARD’ CHOOSING THE DEFENDANT, THAT TESTIMONY WAS INADMISSIBLE UNDER CPL 60.25; PROSECUTOR’S REMARKS IN SUMMATION HARSHLY CRITICIZED (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined a witness’s testimony about a lineup identification procedure in which the witness indicated only she was “leaning toward” choosing the defendant was inadmissible. The Second Department further criticized the prosecutor’s summation:

… [T]he foundational requirements of CPL 60.25 were not met …. CPL 60.25 is principally concerned with cases where a witness who has validly identified a defendant on a prior occasion is, nevertheless, unable to make a trial identification due to a lapse of memory … permits a witness to testify in a criminal proceeding about his or her own prior identification where the witness is “unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question” … . The second witness never identified the defendant at the lineup and, thus, there was no prior identification for her to testify about under CPL 60.25 … .

Notably, the impact of the second witness’s testimony was highly prejudicial to the defendant. Identification was a crucial and contested issue in this case. Without the second witness’s testimony regarding whom she would “lean toward,” the evidence of identity consisted primarily of the testimony of the first witness, whose veracity and credibility were questioned because he had lied to detectives and an assistant district attorney, absconded from a police station, and received an extremely favorable cooperation agreement in exchange for his testimony at the defendant’s trial. …

… [T]he prosecutor improperly argued to the jury that there were “no coincidences,” that the defendant was not the “unluckiest guy” in Brooklyn, that “the evidence fits together . . . all the pieces connect,” that “all the evidence points directly at [the defendant] . . . because he’s guilty. Because he did these crimes,” … and that the jury would have to do “a lot of mental gymnastics to believe the defendant did not commit this crime.” She vouched for the credibility of the first witness, arguing that if he had been lying, he would have testified that the defendant “stab[bed] two people.” The prosecutor also referred to the defendant as engaging in “machismo” at the time of the events in question. People v Robles, 2019 NY Slip Op 05572, Second Dept 7-10-19

 

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USING A NEW YORK VIRTUAL LAW OFFICE PROGRAM (VLOP) ONLY AS A MAILING ADDRESS AND AS AN AGENT TO ACCEPT SERVICE DOES NOT SATISFY THE REQUIREMENT THAT AN ATTORNEY PRACTICING IN NEW YORK HAVE A PHYSICAL OFFICE IN NEW YORK, HOWEVER THE ACTION BROUGHT BY THE VLOP ATTORNEY IS NOT A NULLITY AND SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined using a Virtual Law Office Program (VLOP) only as a mailing address and as an agent to accept service in New York is not enough to satisfy the Judiciary Law requiring an attorney practicing in New York to have a physical office in New York. However the action started by the attorney with the virtual law office is not, as Supreme Court held, a nullity:

To the extent that counsel uses the VLOP only as a mailing address and an agent authorized to accept service of process, it is insufficient to meet the physical presence requirement of Schoenefeld. While the additional services VLOP provides may well satisfy physical presence, an attorney needs to actually take advantage of those services to meet the requirements of Judiciary Law § 470. At bar, counsel does not claim that he actually uses the VLOP for anything but the delivery of mail and packages and for service of process. Although office space and conference rooms may be available to him, there is no claim that he actually uses those services. …

Counsel’s correspondence and the papers served on his adversary and/or filed in court contradicted any physical presence in New York. …

Notwithstanding that we find that counsel is not authorized to maintain this action in New York State, we do not believe that it should have been dismissed. The Court of Appeals recently held that a nonresident attorney’s failure to comply with the requirement of Judiciary Law § 470 of maintaining a physical office in New York State at the time a complaint is filed does not render the filing a nullity and therefore that dismissal of the action is not required … . The party may cure the statutory violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel … . Accordingly, we vacate the order and remand the matter to afford plaintiff an opportunity to cure the violation. Marina Dist. Dev. Co., LLC v Toledano, 2019 NY Slip Op 05480, First Dept 7-9-19

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CONTINUOUS REPRESENTATION DOCTRINE DID NOT APPLY TO TWO DISTINCT AND SEPARATE ACTIONS, LEGAL MALPRACTICE ACTION TIME-BARRED (FIRST DEPT).

The First Department determined the continuous representation doctrine did not apply and the legal malpractice action was time-barred. Plaintiff was represented by defendant law firm in a 2005 divorce. Plaintiff’s ex-wife then sued plaintiff alleging he fraudulently concealed an asset in the divorce proceedings. Defendant law firm successfully defended the fraud action. 12 years after the divorce action ended, plaintiff sued the law firm for malpractice, asking to be relieved of the obligation to pay the law firm’s legal fees in the fraud action:

The motion court correctly found that this action, which was commenced 12 years after the divorce action ended, is barred by the applicable three-year statute of limitations … . Contrary to plaintiff’s contentions, the continuous representation doctrine is inapplicable, because defendants were retained under two separately executed retainer agreements in the divorce action and the fraud action … . The first retainer agreement expressly stated that it did not cover any services following the entry of a final judgment of divorce. Thus, there was no mutual understanding that further representation was necessary on the specific subject matter of the malpractice claim … . Moreover, the divorce action and the fraud action, although related, were two distinct and separate actions … . Etzion v Blank Rome, LLP2019 NY Slip Op 05468, First Dept 7-9-19

 

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TRIAL COURT DID NOT, AS PROMISED, INSTRUCT THE JURY ON THE PURPOSES OF INTRODUCING HEARSAY EVIDENCE OF THE CHILD-VICTIM’S DISCLOSURES OF SEXUAL ASSAULT AND DEFENSE COUNSEL DID NOT OBJECT; THE MAJORITY CONCLUDED THE ISSUE WAS NOT PRESERVED FOR APPEAL; TWO DISSENTERS ARGUED THE ERROR WAS REVERSIBLE AND DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that any error in the trial court’s failure to instruct the jury on the purposes for the introductions of evidence of the child-victim’s disclosure of sexual assault in 2009 and in 2014, evidence which would otherwise be inadmissible bolstering, was not preserved. The dissenters argued that the error was reversible and defense counsel’s failure to object constituted ineffective assistance:

From the dissent:

Prior to trial, the People moved in limine for permission to introduce evidence that the victim reported an incident of sexual contact with defendant to her aunt in 2009, and that she again disclosed the incident in 2014. The court concluded that the People could introduce evidence that the victim made a prompt complaint in 2009 if they laid a proper foundation establishing that the complaint was made at the first suitable opportunity, and that they could introduce evidence that the victim reported the contact in 2014 for the sole purpose of establishing how the investigative process began at that time. The court indicated that it would provide an appropriate limiting instruction if the evidence was introduced.

At trial, the People introduced evidence that the victim reported the sexual contact to her aunt in 2009 and to several other people at various times in 2014 and 2015. Nevertheless, the court did not give a limiting instruction either when the testimony was given or at the end of the case. Although we agree with the majority that defendant failed to preserve for our review his contention that the court erred in failing to give the promised charge, we conclude that defendant was deprived of a fair trial by that error, and we would exercise our power to review that contention as a matter of discretion in the interest of justice. * * *

… [Defendant] was deprived of effective assistance by his attorney’s failure to object the court’s failure to give the promised limiting instruction. The majority concludes that defense counsel’s failure to preserve that issue does not rise to the level of ineffective assistance, citing People v Gross(26 NY3d 689, 696 [2016]). We respectfully disagree. In Gross, the majority of the Court of Appeals concluded that defense counsel may not have objected to the prosecutor’s comments on the evidence for tactical reasons. Here, there was no possible tactical basis for “defense counsel’s inexplicable failure to object” when the court failed to give the promised limiting instruction … . People v Hymes, 2019 NY Slip Op 05441, Fourth Dept 7-5-19

 

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ALTHOUGH THE ATTORNEY REPRESENTING HIS MOTHER’S ESTATE IN A MEDICAL MALPRACTICE/WRONGFUL DEATH ACTION MAY BE A WITNESS, UNDER THE PARTICULAR FACTS OF THE CASE, DISQUALIFICATION PURSUANT TO THE ADVOCATE-WITNESS RULE WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the attorney representing his mother’s estate in the medical malpractice/wrongful death action may be a witness, the advocate-witness rule, under the particular facts of this case, did not require disqualification:

… [T]he advocate-witness rules contained in the Rules of Professional Conduct (22 NYCRR 1200.0) provide guidance, but are not binding authority, for the courts in determining whether a party’s attorney should be disqualified during litigation  … . Rule 3.7(a) of the Rules of Professional Conduct … provides that, in general, “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.” There is an exception to this rule when “disqualification of the lawyer would work substantial hardship on the client”… . Further, the advocate-witness rule generally does not control where the attorney is also a litigant … . However, estate representatives represent the interests of the estate’s beneficiaries, rather than their own. Therefore, generally, the advocate-witness rule will prevail over a fiduciary-attorney’s right to self-representation … . …

Here, the other distributee affirmed that his interests in the lawsuit are identical to those of the plaintiff, whom he wished would remain as attorney for the estate. Accordingly, while the plaintiff is not a party in his individual capacity, his personal property interests as one of two distributees of the estate are at stake (see EPTL 5-4.4[a] …), and his interests appear to be identical to those of the estate … . Furthermore, the plaintiff affirmed that his attempt to retain different counsel for the estate was unsuccessful, such that his disqualification as counsel would essentially foreclose the claim, working substantial hardship on the estate and its distributees … . Greenberg v Grace Plaza Nursing & Rehabilitation Ctr., 2019 NY Slip Op 05390, Second Dept 7-3-19

 

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PLAINTIFF’S NEW COUNSEL FILED A SECOND COMPLAINT ARISING OUT OF THE SAME FACTS AS THE FIRST COMPLAINT TO ALLEGE CERTAIN INTENTIONAL TORTS BEFORE THE STATUTE OF LIMITATIONS RAN OUT, DISMISSAL OF THE SECOND COMPLAINT WAS NOT REQUIRED, CONSOLIDATION OF THE TWO COMPLAINTS WAS ORDERED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that dismissal of a second complaint arising out of the same facts as the first complaint, filed two months earlier, was not required. Plaintiff had hired new counsel 13 days before the statute of limitations ran out. The first complaint mentioned both intentional and negligent conduct. The second complaint fleshed out specific intentional torts:

CPLR 3211 (a) (4) does not require a trial court to dismiss an action upon the ground that another similar action is pending, instead allowing it to “make such order as justice requires” … . … “[t]he purpose of the defense of the pendency of another action between the same parties for the same cause is to prevent a party from being harassed or burdened by having to defend a multiplicity of suits” . In our view, the reasons stated by plaintiff for commencing this action rather than moving for leave to amend the first complaint are not…  so clearly inadequate that dismissal was required to serve that purpose … . …

We note that Supreme Court agreed with plaintiff that there was insufficient time to pursue a motion for leave to amend pursuant to CPLR 2214 (b). As the court observed, it was possible that plaintiff could have obtained timely relief by bringing a request for leave to amend the first complaint via an order to show cause … . Nevertheless, even if counsel erred in failing to pursue that course, dismissal of this action is too harsh a consequence.

Where, as here, relief is required under CPLR 3211 (a) (4) to correct similar pending actions, “consolidation or joint trial is permissible and in many instances preferable to dismissal”… . In his opposition to defendant’s motion to dismiss, plaintiff requested such relief as an alternative remedy. Thus, the requirement for notice to defendant before consolidation is ordered has been satisfied (see CPLR 602 [a] … ). Accordingly, we direct Supreme Court to consolidate this action with the first action, and remit for that purpose. LaBuda v LaBuda, 2019 NY Slip Op 05366, Third Dept 7-3-19

[​Note that it may have been possible for the plaintiff to file a copy of the proposed supplemental summons with a motion to amend the complaint which would have tolled the statute of limitations. (see Karagiannis v North Shore Long Is. Jewish Health Sys., Inc., 80 AD3d 569, 569 [2d Dept 2011])]

 

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ARBITRATOR’S AWARD OF ATTORNEY’S FEES TO PLAINTIFF IN THIS BREACH OF CONTRACT DISPUTE REINSTATED; MONEY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO A PARTY WHICH HAD CONTRACTED WITH PLAINTIFF, BUT WITH WHICH DEFENDANT DID NOT HAVE AN AGREEMENT TO ARBITRATE; COURT-REVIEW OF ARBITRATION AWARDS DISCUSSED IN DETAIL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined the arbitrator’s award of attorney’s fees to the plaintiff should not have been vacated, but the arbitrator’s award of a money judgment to OHM, which had contracted with plaintiff but was not a party to any agreement to arbitrate with the defendant, should be vacated. The opinion includes a clear explanation of a court’s limited powers of review of an arbitration award and is too comprehensive to fairly summarize here. The court noted, with regard to the American rule generally prohibiting the award of attorney’s fees, New York law is preempted by the Federal Arbitration Act (FAA):

… [T]he parties agree that manifest disregard of the law is the only appropriate ground to vacate the arbitrator’s award of attorneys’ fees … .

For an award to be set aside for manifest disregard, the arbitrator must understand and correctly state the law, but proceed to disregard the same … . Application of the “manifest disregard of law” standard requires the court to make, in essence, three inquiries: (1) whether the legal principle allegedly ignored by the arbitrator was well defined, explicit, and clearly applicable; (2) whether the arbitrators knew of the governing legal principle; and, (3) whether knowing that principle, the arbitrators refused to apply it or ignored it … . A court may not vacate an arbitration award because it thinks the arbitrators made the wrong decision … . Indeed, even if the court thinks that the arbitrator reached the wrong result or applied the law incorrectly, the court should nevertheless confirm the award, “despite [the] court’s disagreement with it on the merits, if there is a barely colorable justification for the outcome reached” … . * * *

Under established law, “[t]he question whether the parties have submitted a particular dispute to arbitration, i.e., the question of arbitrability, is an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise”  … . * * *

Arbitration is a matter of contract, and a party cannot be forced to arbitrate a dispute that it did not expressly agree to submit to arbitration … . “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so . . . . In this manner the law treats silence or ambiguity about the question who (primarily) should decide arbitrability’ differently from the way it treats silence or ambiguity about the question whether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement’ for in respect to this latter question the law reverses the presumption” … . An arbitrator’s decision to assert jurisdiction, over objection, is subject to a much broader and more rigorous judicial review than an arbitral decision on the merits, and because it is “a question for the court to decide,” it is subject to de novo judicial review … . Matter of Steyn v CRTV, LLC, 2019 NY Slip Op 05341, First Dept 7-2-19

 

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RESTITUTION SHOULD NOT HAVE BEEN ORDERED BECAUSE IT WAS NOT PART OF THE PLEA AGREEMENT, THE ARGUMENT SURVIVES THE GUILTY PLEA AND THE WAIVER OF APPEAL; DEFENDANT’S CONTENTION HE WAS DEPRIVED OF HIS RIGHT TO COUNSEL DID NOT SURVIVE THE WAIVER OF APPEAL BECAUSE DEFENDANT DID NOT ASSERT THE DEPRIVATION INFECTED THE PLEA AGREEMENT OR THE VOLUNTARINESS OF THE PLEA (FOURTH DEPT).

The Fourth Department determined restitution should not have been ordered because it was not part of the plea agreement. The court noted that defendant’s argument he was deprived of his right to counsel with respect to his decision to testify before the grand jury was not forfeited by his guilty plea, but was encompassed by his waiver of appeal. The Fourth Department declined to follow a 3rd Department decision which held a deprivation-of-counsel argument survives a waiver of appeal irrespective of whether the deprivation infected the guilty plea. Here defendant did not assert that the alleged deprivation of his right to counsel infected the plea bargaining process or tainted the voluntariness of the plea:

Defendant’s further contention that County Court erred in ordering him to pay restitution because restitution was not part of the plea agreement survives both his guilty plea and his unchallenged waiver of the right to appeal … . Moreover, contrary to the People’s contention, defendant preserved his contention for appellate review by objecting to the imposition of restitution on the same ground he now advances … . On the merits, it is undisputed that the plea bargain did not include restitution, and the court therefore erred in awarding restitution without affording defendant the opportunity to withdraw his plea … . People v Richardson, 2019 NY Slip Op 05310, Second Dept 6-28-19

 

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