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QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION; THE ATTORNEY HAD ATTEMPTED TO REMEDY THE FAILURE TO FILE OBJECTIONS IN AN ESTATE MATTER AFTER THE STATUTE HAD RUN; ABSENCE OF AN EXPERT’S REPORT FROM THE RECORD ON APPEAL PRECLUDED A RULING ON THE RELATED ISSUE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff had raised a question of fact whether the continuous representation doctrine tolled the statute of limitations in this legal malpractice action. The attorney had attempted to remedy the failure to file objections in an estate matter after the statute had run. The Fourth Department noted that plaintiff’s expert’s report was missing from the record on appeal and therefore plaintiff was unable to argue on appeal that he had raised a related question of fact (concerning damages) before Supreme Court. Defendant had argued the damages were speculative (requiring dismissal) and Supreme Court did not rule on the issue (because the case was dismissed as untimely). The matter was remitted for a ruling on the damages issue:

We are unable to review plaintiff’s contention that he raised a triable issue of fact with respect to … damages by submitting an expert report inasmuch as plaintiff failed to include that document in the record on appeal. Thus plaintiff, as the party raising this issue on his appeal, “submitted this appeal on an incomplete record and must suffer the consequences” … . …

Defendant met his burden … by establishing that the statute of limitations for legal malpractice is three years (see CPLR 214 [6]), that the estate cause of action accrued on November 1, 2010, the last date on which to file objections to the accounting …, and that the estate cause of action was therefore untimely when this malpractice action was commenced on November 15, 2013. “The burden then shifted to plaintiff[] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine” … .

We agree with plaintiff that the court erred in determining that plaintiff failed to do so. It is well settled that, in order for the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … . Here, plaintiff submitted evidence that defendant made several unsuccessful attempts to file the objections within the weeks after the deadline and that he made preparations to appear at a scheduled conference on the objections on November 23, 2010. Those efforts could be viewed as “attempt[s] by the attorney to rectify an alleged act of malpractice” … , and thus plaintiff raised a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine. Leeder v Antonucci, 2019 NY Slip Op 05898, Fourth Dept 7-31-19

 

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DEFENDANT SUBMITTED EVIDENCE RAISING CONCERNS ABOUT WHETHER HIS GUILTY PLEA WAS ENTERED VOLUNTARILY AND WHETHER HE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT’S MOTION TO VACATE THE JUDGMENT OF CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction by guilty plea should not have been denied without a hearing. Defendant presented DNA evidence of a genetic inability to metabolize certain medications he was taking to address his mental health. In addition, defendant raised issues concerning ineffective assistance of counsel. Defense counsel, who was aware of defendant’s mental health issues, had sent a letter to the court requesting to withdraw as counsel immediately after defendant told the court he felt coerced into pleading guilty. Three days later defendant entered a guilty plea saying he was not coerced. The court noted that the DNA evidence submitted by the defendant was not the kind of DNA evidence (i.e., demonstrating innocence) which can be used as the basis of a motion to vacate a judgment of conviction:

Given the evidence of defendant’s metabolic deficiency and the ongoing efforts to chemically treat his mental health issues before and after his guilty plea, further development of the record is required to determine whether defendant’s mental capacity was impaired at the time of his plea and, if so, whether he was able to knowingly, voluntarily and intelligently plead guilty to attempted murder in the second degree … . …

… [D]efense counsel stated to defendant on multiple occasions that he had “absolutely no defense” to the charged crimes. In our view, defendant’s submissions demonstrate the need for further development of the record regarding off-the-record conversations that took place between defendant and defense counsel regarding defendant’s case and possible defenses, … so as to discern whether defendant knowingly, voluntarily and intelligently waived any potential defenses, including an involuntary intoxication defense or the defense of not responsible by reason of mental disease or defect … .

… [D]efense counsel stated, among other things, that, should defendant refuse to plead guilty, he would no longer agree to represent defendant and, in attempting to dissuade defendant from proceeding to trial, invoked the potential disgrace to his family. People v Adamo, 2019 NY Slip Op 05813, Third Dept 7-25-19

 

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DEFENDANT’S AGGRAVATED CRUELTY TO ANIMALS CONVICTION AFFIRMED; JUSTIFICATION DEFENSE APPLIES ONLY TO PERSONS, NOT ANIMALS; THE PRESENTENCE INTERVIEW AT THE PROBATION DEPARTMENT IS NOT A CRITICAL STAGE OF THE PROCEEDING REQUIRING THE PRESENCE OF DEFENDANT’S ATTORNEY (THIRD DEPT).

The Third Department affirmed defendant’s conviction of aggravated cruelty to animals (Agriculture and Markets Law 353-a) noting that the justification defense (on which the jury was instructed) applies only to persons, not animals. The defendant unsuccessfully argued the presentence report should have been ignored because his attorney was not present during the interview with the Probation Department:

Defendant contends that the court should have disregarded the report in its entirety and ordered a new one because the Probation Department did not abide by counsel’s request to be present for the presentence interview. “New York’s right to counsel applies to every critical stage of the criminal proceeding” … . However, in light of the nonadversarial nature of a routine presentence interview by a probation officer, courts have held that such an interview does not constitute a critical stage of the proceedings … . Therefore, defendant did not have a right to have counsel present during that interview. In any event, County Court granted defendant’s request to strike the portion of the report containing defendant’s statement related to this crime. People v Brinkley, 2019 NY Slip Op 05728, Third Dept 7-18-19

 

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EMAILS INADVERTENTLY PROVIDED TO PLAINTIFF WERE NOT PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, SUPREME COURT SHOULD NOT HAVE ISSUED A PROTECTIVE ORDER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that emails which had inadvertently been provided to the plaintiff were not protected by attorney-client privilege. Therefore Supreme Court should not have granted a protective order pursuant to CPLR 3101 (b):

… [T]he defendants failed to meet their burden of establishing a right to protection of the subject emails … . The communications relate to the business of the defendants, rather than legal issues … , and nothing stated by in-house counsel in the emails sets him apart as a legal advisor in the discussion. The affidavits of the defendants’ CEO and in-house counsel, submitted in support of the cross motion, merely state in a conclusory manner that the communications were confidential and privileged. The defendants point to no particular communication in which in-house counsel gave legal advice, or in which the defendants’ other employees sought legal advice from in-house counsel. Saran v Chelsea GCA Realty Partnership, L.P., 2019 NY Slip Op 05710, Second Dept 7-17-19

 

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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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