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DOCUMENTS SOUGHT BY PETITIONER WERE EXEMPT FROM DISCLOSURE BASED UPON THE ATTORNEY-CLIENT PRIVILEGE, THE ATTORNEY WORK PRODUCT AND THE INTER-, INTRA-AGENCY COMMUNICATION EXEMPTIONS (THIRD DEPT).

The Third Department, modifying Supreme Court, determined emails between the governor’s office, counsel and Department of Transportation (DOT) employees concerning a gas station sublease which had been held by petitioner, but which was terminated by DOT, were exempt from disclosure based upon attorney-client privilege, attorney work-product, and the inter-, intra-agency communication exemption:

In determining whether a communication is protected by the attorney-client privilege, “the critical inquiry is whether, viewing the lawyer’s communication in its full content and context, it was made in order to render legal advice or services to the client” … . In that regard, inasmuch as facts are the foundation of legal advice, the attorney-client privilege protects communications between an attorney and his or her client that convey facts relevant to a legal issue under consideration, even if the information contained in the communication is not privileged … . Each of the emails at issue are communications between counsel in the Governor’s Office and DOT employees that contain or reference factual information relevant to counsel providing legal advice regarding the proposed termination of the sublease. Accordingly, we conclude that the emails are protected by the attorney-client privilege and, therefore, Supreme Court erred in ordering their disclosure.

Respondents further contend that preliminary drafts of the letter that was ultimately sent terminating the sublease are exempt from disclosure under FOIL as inter-agency or intra-agency materials and as attorney work product … . The letters are drafts of the final termination notice that incorporate counsel’s recommendations and that were circulated in furtherance of the decision-making process prior to a final determination; accordingly, they are exempt from disclosure under FOIL as inter-agency or intra-agency materials and as attorney work product … . Matter of Gilbert v Office of the Governor of the State of N.Y., 2019 NY Slip Op 02189, Third Dept 3-21-19

 

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COURT SHOULD HAVE INQUIRED INTO FATHER’S ELIGIBILITY FOR ASSIGNED COUNSEL IN THE CONTEMPT PROCEEDINGS STEMMING FROM FATHER’S FAILURE TO PAY CHILD SUPPORT, FATHER WAS DEPRIVED OF HIS RIGHT TO COUNSEL, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, ordering a new hearing, determined father was deprived of is right to counsel in a contempt proceeding stemming from his failure to pay child support:

A respondent in a contempt proceeding before the Family Court “has the right to the assistance of counsel,” including “the right to have counsel assigned by the court” if “he or she is financially unable to obtain the same” (Family Ct Act § 262[a]). “Where a party indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel” … . “The deprivation of [a parent’s] fundamental right to counsel requires reversal, without regard to the merits of [his or] her position” … .

We agree with the father’s contention that he was deprived of his right to counsel. After the Support Magistrate adjourned the hearing for the express purpose of allowing the father to retain counsel, the father appeared at the next hearing date without counsel and informed the Support Magistrate that he could not afford to hire an attorney because he had lost his job following the last court date. The Support Magistrate should have inquired into the father’s current financial circumstances, including his expenses, to determine whether he had become eligible for assigned counsel … . After the matter was referred to the Family Court, the court should have inquired into the father’s financial circumstances, including his expenses, to determine whether he was eligible for assigned counsel in light of his contention that he could not afford to retain an attorney because he was unemployed … . Although the court later assigned the father an attorney, the court failed to provide the “attorney a reasonable opportunity to appear,” as the court assigned the attorney midway through the final court appearance, after the fact-finding hearing had concluded, after the Support Magistrate had made its credibility and factual findings, and after the court had decided to incarcerate the father … . Indeed, the court denied the assigned attorney’s request for an adjournment … . Matter of Worsdale v Holowchak, 2019 NY Slip Op 02104, Second Dept 3-20-19

 

NONPARTY LAW FIRM SHOULD HAVE BEEN ALLOWED TO WITHDRAW AS COUNSEL FOR DEFENDANTS BASED UPON DEFENDANTS’ FAILURE TO PAY REASONABLE ATTORNEY’S FEES AND FAILURE TO COOPERATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nonparty law firm, Kaufman, should have been allowed to withdraw as counsel for defendants T & V and Komninos based upon defendant’s failure to pay attorney’s fees and failure to cooperate:

The Supreme Court improvidently exercised its discretion in denying the law firm’s unopposed motion for leave to withdraw as counsel for T & V and Komninos. An attorney may be permitted to withdraw from employment where a client refuses to pay reasonable legal fees (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c][5] … ). Likewise, an attorney may withdraw from representing a client if the client “fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c][7] … ).

Here, the law firm established that T & V and Komninos failed in their obligation to pay the legal fees earned by the law firm and further failed to cooperate in their representation. Moreover, T & V and Komninos did not oppose that branch of the law firm’s motion which was for leave to withdraw as their counsel. Accordingly, that branch of the motion which was for leave to withdraw as counsel for T & V and Komninos should have been granted … . Villata v Kokkinos, 2019 NY Slip Op 02143, Second Dept 3-20-19

 

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NOTES TAKEN BY AN OBSERVER HIRED BY PLAINTIFF’S ATTORNEY TO WITNESS AN INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BY DEFENDANTS’ DOCTOR ARE PRIVILEGED AS MATERIAL PREPARED FOR TRIAL, THE OBSERVER WAS ACTING AS AN AGENT OF PLAINTIFF’S ATTORNEY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, in a matter of first impression, determined that the notes taken by an observer at an independent medical exam (IME) of plaintiff by defendants’ doctor are protected by the privilege afforded materials prepared for litigation. The observer was hired by plaintiff’s attorney and was deemed to be acting as an agent of the attorney:

The IME observer, however, is an agent of the plaintiff’s attorney. Consequently, the requested notes and materials constitute materials prepared for trial, bringing them within the conditional or qualified privilege protections of CPLR 3101(d)(2). Materials prepared in anticipation of litigation and preparation for trial may be obtained only upon a showing that the requesting party has a “substantial need” for them in the preparation of the case and that without “undue hardship” the requesting party is unable to obtain the substantial equivalent by other means (CPLR 3101[d][2] …).

The IME observer was hired to assist plaintiff’s attorney in advancing the litigation and preparing for trial … . Although present, she was not involved in the doctor’s examination of the plaintiff. Her function was to serve as the attorney’s “eyes and ears,” observing what occurred during the IME, and then reporting that information back to plaintiff’s attorney.

Defendants have not shown, in response, any “substantial need” for the IME observer’s notes, etc., or why they are unable, without undue hardship, to obtain the “substantial equivalent” of the materials by other means … . Key to this analysis is that the defendants’ doctor conducted plaintiff’s examination and can provide defendants with any information concerning what generally occurred and what he did at the IME. Markel v Pure Power Boot Camp, Inc., 2019 NY Slip Op 02049, First Dept 3-19-19

 

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EVIDENCE DEFENDANT’S STEPFATHER APOLOGIZED TO THE ROBBERY VICTIM FOR THE DEFENDANT’S ACTIONS AND THE TESTIMONY ABOUT AN ANONYMOUS INFORMANT’S IDENTIFICATION OF THE DEFENDANT SHOULD NOT HAVE BEEN ADMITTED, PROSECUTOR SHOULD NOT HAVE ENCOURAGED INFERENCE OF GUILT BASED ON FACTS NOT IN EVIDENCE, APPELLATE ISSUES CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, reaching the appellate issues in the interest of justice, determined that improperly admitted evidence warranted a new trial, noting that the prosecutor also acted improperly. The identity of the defendant was a key issue in this robbery case. The victim (Fernandez) should not have been allowed to testify that the defendant’s stepfather told the victim he was sorry for what defendant had done and returned the victim’s keys. Also, the investigating detective should not have been allowed to testify that an anonymous informant had identified the defendant:

There was no showing that the defendant participated in or was in any way connected to his stepfather’s actions … .

… [T]he testimony of an investigating detective recounting a conversation with an anonymous informant, a nontestifying witness, violated the defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution… . The informant reportedly was an eyewitness to the crime and identified the defendant by name. The testimony “went beyond the permissible bounds of provid[ing] background information as to how and why the police pursued [the] defendant” … . …

Upon retrial, we remind the People that, on summation, a prosecutor may not “improperly encourage[ ] inferences of guilt based on facts not in evidence” … . Here, there was no evidence to support the prosecutor’s assertion that Fernandez had identified the defendant as the robber “immediately” by recognizing a distinctive “dot” on the defendant’s face. People v Gonsalves, 2019 NY Slip Op 01792, Second Dept 3-13-19

 

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SANCTIONS PROPERLY IMPOSED FOR BRINGING A FRIVOLOUS LAWSUIT (SECOND DEPT).

The Second Department determined sanctions for frivolous conduct were properly imposed. The action was precluded by collateral estoppel and should not have been brought:

“The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees resulting from frivolous conduct” (22 NYCRR 130-1.1[a]). Conduct is frivolous under 22 NYCRR 130-1.1 if it is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” or it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][1], [2] …).

Here, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was pursuant to 22 NYCRR 130-1.1(a) to impose a sanction upon Miller and his attorney consisting of costs in the form of an attorney’s fee (see 22 NYCRR 130-1.1[a]). Under the circumstances of this case, the court properly determined that Miller and his attorney engaged in frivolous conduct in commencing this action, as it was completely without merit in law, and could not be supported by a reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1[c]). Miller v Falco, 2019 NY Slip Op 01589, Second Dept 3-6-19

 

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DELIBERATE ACTS BY DEFENDANT’S ATTORNEY RESULTED IN THE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s attorney’s deliberate acts required denial of defendant’s motion to vacate the default:

The affirmations of the defendant’s attorney reveal that he made a conscious decision not to submit any papers in opposition to the plaintiff’s motion even though the Supreme Court gave him ample opportunity to do so. In addition, defense counsel waited until the plaintiff served a proposed default order, more than four months after the court declared the defendant to be in default, before serving the defendant’s motion to vacate. Under these circumstances, the defendant’s failure to oppose the plaintiff’s motion was willful … .

The defendant claims that her default was caused by law office failure based on defense counsel’s statement in his affirmation that his “office will take full responsibility.” At most, defense counsel’s advice, and the defendant’s decision to follow it, constituted a misguided strategy, not law office failure … . Thus, the defendant failed to establish a reasonable excuse for her default … . Bove v Bove, 2019 NY Slip Op 01555, Second Dept 3-6-19

 

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ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT WHICH THEREFORE BOUND THE PLAINTIFF TO ITS TERMS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney had apparent authority to sign a stipulation of settlement which was therefore binding on plaintiff:

“A stipulation made by the attorney may bind a client even where it exceeds the attorney’s actual authority if the attorney had apparent authority to enter into the stipulation” … . Here, the plaintiff is bound by the settlement agreement signed by her former attorney. Even if the attorney lacked actual authority to enter into the settlement agreement on the plaintiff’s behalf, a finding that he had the apparent authority to do so is warranted by the facts … . The plaintiff’s former attorney participated in the mediation with the plaintiff’s knowledge and consent, and represented to the mediator and to defense counsel that a representative from his office had spoken with the plaintiff and obtained authority to settle the action for the sum of $150,000. Additionally, the law firm that employed the attorney who participated in the mediation was the plaintiff’s attorney of record in the action, and attorneys from that law firm signed and verified the summons and complaint and signed and certified a note of issue filed in the action … . Amerally v Liberty King Produce, Inc., 2019 NY Slip Op 01550, Second Dept 3-5-19

 

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WAIVER OF APPEAL DID NOT PRECLUDE CONSIDERATION OF AN ISSUE WHICH AROSE AFTER THE WAIVER, AT SENTENCING ALL WERE UNDER THE MISCONCEPTION DEFENDANT WAS A SECOND FELONY OFFENDER, SENTENCING JUDGE HAD SINCE BECOME THE PUBLIC DEFENDER, THE PUBLIC DEFENDER’S OFFICE COULD NOT, THEREFORE, REPRESENT DEFENDANT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that defendant’s waiver of appeal did not preclude consideration of an issue that came up after the waiver and the public defender’s office could not represent defendant because the sentencing judge had since become the public defender. At sentencing and at the time of the waiver of appeal, all were under the misconception defendant was a second felony offender:

… [D]efendant’s waiver of the right to appeal regarding his plea to the probation violation was entered under the misconception by all parties that defendant was a second felony drug offender. Accordingly, the waiver does not preclude our review of defendant’s appeal on resentencing because “the plea was entered pursuant to conditions that changed after defendant’s waiver” … . We agree with defendant’s argument on appeal that the Albany County Public Defender’s office was precluded, as a matter of law, from representing him at the resentencing hearing because the Public Defender, prior to being appointed to that position, was the County Judge who presided over and initially sentenced him in this matter (see Judiciary Law § 17 … ). Accordingly, the judgment resentencing defendant must be reversed and the matter remitted for resentencing, with different representation assigned to defendant. People v Sumter, 2019 NY Slip Op 01460, Third Dept 2-28-19

 

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