You are here: / Attorneys
,

FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this child support and maintenance arrears proceeding, determined that father was never properly advised of his right to counsel by the support magistrate. It was not sufficient that father was told the matter could be adjourned to allow him to speak to an attorney or that father could get in touch with legal aid:

… [W]hen the father first appeared in the Family Court, the Support Magistrate informed him that he had the right to request an adjournment to hire or speak with an attorney, or he could proceed to represent himself. The father elected to proceed representing himself, and no further advisement or inquiry was made by the court. At the next appearance, the Support Magistrate indicated that she would give the father contact information for the Legal Aid Society of Orange County, but she did not advise the father of his right to have counsel assigned by the court if he was financially unable to retain counsel. Several months later, when the parties appeared for the fact-finding hearing, both pro se, the Support Magistrate again advised the father that he had the right to request an adjournment to hire or speak with an attorney, or he could waive that right and represent himself. The father stated that he would represent himself, no further advisement or inquiry was made, and the fact-finding hearing was held, with both parties proceeding pro se.

By representing himself, the father was necessarily forgoing the benefits associated with the right to counsel … . Although a party may waive the right to counsel and opt for self-representation, prior to permitting a party to proceed pro se, the court must conduct a “searching inquiry” to ensure that the party’s waiver is knowing, intelligent, and voluntary … . A waiver is valid where the party was aware of the dangers and disadvantages of proceeding without counsel … .

Here, the record demonstrates that the father was not advised of his right to assigned counsel, as required. Further, there is no indication that he validly waived his right to counsel. Under these circumstances, the father was deprived of his right to counsel and reversal is required, without regard to the merits of his position in the enforcement proceeding … . Matter of Gallousis v Gallousis, 2018 NY Slip Op 08129. Second Dept 11-28-18

FAMILY LAW (RIGHT TO COUNSEL, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))/ATTORNEYS (FAMILY LAW, RIGHT TO COUNSEL, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))/RIGHT TO COUNSEL (FAMILY LAW, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))/WAIVER (RIGHT TO COUNSEL, FAMILY LAW, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))/CHILD SUPPORT (RIGHT TO COUNSEL, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))/MAINTENANCE  (RIGHT TO COUNSEL, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))

,

LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the law office failure excuse was insufficient to warrant vacating the order of discontinuance:

While courts have discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice… , “[a] court’s inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect” … .

Here, the plaintiff asserted that the action was erroneously discontinued by prior counsel due to confusion generated by an impending substitution of counsel. “Where a party asserts law office failure, it must provide a detailed and credible explanation of the default'”… , and conclusory and unsubstantiated allegations of law office failure are insufficient … . Contrary to the plaintiff’s contention, the uncorroborated representation by its current counsel that the action was erroneously discontinued by prior counsel did not constitute a detailed and credible explanation warranting vacatur of the order of discontinuance and restoration of the action … . Accordingly, the Supreme Court should have denied the plaintiff’s motion to vacate the order of discontinuance and to restore the action to the active calendar. IndyMac Bank, FSB v Izzo, 2018 NY Slip Op 08014, Second Dept 11-21-18

CIVIL PROCEDURE (LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LAW OFFICE FAILURE (VACATE DISCONTINUANCE, LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/DISCONTINUANCE, MOTION TO VACATE  (LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

,

LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ “law office failure” excuse was sufficient to warrant granting the motion to vacate the default judgments:

“A party seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1), and thereupon to serve a late answer, must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action”… . The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court, and in the exercise of that discretion, the court may accept law office failure as an excuse (see CPLR 2005… ). Here, the defaulting defendants demonstrated a reasonable excuse, based upon law office failure arising from a miscommunication between their former counsel and their present counsel, for their default in answering the complaint or otherwise appearing in the action … .

The defaulting defendants also demonstrated that they had a potentially meritorious defense. …

Under the circumstances here, particularly in light of the evidence that the defaulting defendants’ delay was not willful, the lack of prejudice to the plaintiffs resulting from the defaulting defendants’ short delay in appearing and seeking to answer the complaint, the existence of a potentially meritorious defense, and the strong public policy favoring the resolution of cases on the merits, the Supreme Court improvidently exercised its discretion in denying the defaulting defendants’ motion to vacate their default and to compel the plaintiffs to accept their late answer … . Government Employees Ins. Co. v Avenue C Med., P.C., 2018 NY Slip Op 08010, Second Dept 11-21-18

CIVIL PROCEDURE (VACATE DEFAULT, LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING OF DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT))/DEFAULT JUDGMENT, MOTION TO VACATE (LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING OF DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING OF DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT))/LAW OFFICE FAILURE (VACATE DEFAULT, LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING OF DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT))/CPLR 5015, CPLR 2005 (VACATE DEFAULT, LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING OF DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT))

, , ,

WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ motion to set aside the verdict in this stairway slip and fall case should not have been granted, and the plaintiff’s motion for sanctions (attorney’s fees) for frivolous conduct (bringing the motion to set aside) should have been granted. The dissenting justice agreed the verdict should not have been set aside, but disagreed with the imposition of sanctions on defense counsel. The plaintiff alleged she fell (19 inches) because there was no handrail on one side to the stairs. The Second Department explained that even if the jury found the absence of a handrail to be open and obvious, the jury still could have found the absence of the handrail acted as a trap for the unwary:

“Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition”… . “While such proof is relevant to the issue of a plaintiff’s comparative negligence, a hazard that is open and obvious may be rendered a trap for the unwary where the condition is obscured or the plaintiff distracted” … . “The determination of . . . whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts  … . …

… [T}he Supreme Court should have granted the plaintiff’s cross motion for an award of costs in the form of reimbursement of reasonable attorneys’ fees pursuant to 22 NYCRR 130-1.1 based on the frivolous conduct of the defendants in moving to set aside the verdict pursuant to CPLR 4404(a) to the extent that the motion was predicated upon the ground that the plaintiff failed to establish at trial that they owned the subject property. * * *

… [T]he record shows that the defendants’ ownership of the property was never genuinely disputed. Cram v Keller, 2018 NY Slip Op 08007, Second Dept 11-21-18

NEGLIGENCE (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL ( OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/OPEN AND OBVIOUS  (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (FRIVOLOUS CONDUCT, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SET ASIDE VERDICT, MOTION TO (FRIVOLOUS CONDUCT, ATTORNEYS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FRIVOLOUS CONDUCT (MOTION TO SET ASIDE THE VERDICT, ATTORNEYS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

, ,

THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT).

The Third Department determined Supreme Court should have held a hearing on defendant’s motion to vacate his conviction alleging ineffective assistance counsel. i.e., the failure to move to dismiss the indictment based on a speedy trial violation. Although the People raised a question of fact about whether defendant’s counsel consented to certain adjournments, the issue was not conclusively demonstrated, requiring a hearing:

Defendant argued that he was deprived of effective assistance because his counsel failed to move to dismiss the indictment based on a violation of his statutory speedy trial rights. Failure to make a meritorious speedy trial motion, which would result in dismissal of the indictment, is sufficiently egregious to amount to ineffective assistance… . There is ordinarily no strategic reason for counsel to fail to make a dispositive motion that would result in dismissal of the charges with prejudice, so long as it is shown that the motion would have been successful … . …

The Court of Appeals has clarified that ” [a]djournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel’s failure to object to the adjournment or failure to appear does not constitute consent” … A court may not deny a motion to dismiss for a statutory speedy trial violation “without a hearing unless ‘[a]n allegation of fact essential to support the motion is conclusively refuted by unquestionable proof'” … . ” Of course, only those periods for which the People have not provided ‘unquestionable documentary proof’ — for example, a transcript or letter evidencing defendant’s consent — need be addressed at any hearing” … . At least one court has held that calendar and file jacket notations” do not constitute unquestionable proof to meet the People’s “burden of demonstrating sufficient excludable time” … . People v Matteson, 2018 NY Slip Op 07976, Third Dept 11-21-18

CRIMINAL LAW (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/EVIDENCE (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/ATTORNEYS (INEFFECTIVE ASSISTANCE, (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/VACATE CONVICTION, MOTION TO ( THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/INEFFECTIVE ASSISTANCE (THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/SPEEDY TRIAL (VACATE CONVICTION,  THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))

,

CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT).

The Third Department, reversing Family Court, determined the child did not receive effective assistance of counsel in this proceeding to modify visitation. Mother sought to eliminate the scheduled visitation with father and allow the child to visit father as the child wished. Family Court denied the petition:

To effectively represent and protect a child’s interests, the attorney for the child’s role is twofold: (1) help the child express his or her wishes to the court, and (2) take an active role in the proceedings … . By meeting with the child and informing Family Court that the child did not want to continue visitation as ordered, and by requesting and participating in the Lincoln hearing, the trial attorney for the child met the first objective. Given the mother’s limited testimony, however, Family Court understandably characterized the record as “thin.” In our view, the attorney for the child should have taken a more active role in the proceedings by presenting witnesses that could speak to the child’s concerns and/or conducting a more thorough cross-examination of the mother. During his brief cross-examination of the mother, for example, the trial attorney for the child did not attempt to elicit any further information about his client’s behavior and demeanor relative to his visits with the father. On this record, we agree with the argument made by the appellate attorney for the child that the trial attorney for the child did not provide effective assistance. Consequently, the order dismissing the petition should be reversed and the matter remitted to Family Court for further proceedings, including a new fact-finding hearing. Matter of Payne v Montano, 2018 NY Slip Op 07990, Third Dept 11-21-18

FAMILY LAW (ATTORNEYS, CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT))/ATTORNEYS (FAMILY LAW,  CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT))/INEFFECTIVE ASSISTANCE (FAMILY LAW, CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT))

,

FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined father had been denied his right to counsel in this modification of custody proceeding for the reasons explained in Matter of Hensley v DeMun, 163 AD3d 1100, 1101 [2018]:

For the reasons stated in Matter of Hensley v DeMun (supra) – the appeal by the father regarding Supreme Court’s resolution of the two petitions filed by the mother of the nonsubject child – we find that the father was denied the right to counsel, and we must therefore reverse and remit for further proceedings. Matter of DeMun v DeMun, 2018 NY Slip Op 07987,  Third Dept 11-21-18

FAMILY LAW (FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT))/ATTORNEYS (FAMILY LAW, FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT))/RIGHT TO COUNSEL (FAMILY LAW, FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT))

, ,

DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined that defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant’s affidavit raised sufficient factual questions which could not be answered from the record to warrant a hearing. Defendant alleged he was not informed of the deportation consequences of the marijuana conviction:

“Although a hearing on a CPL 440.10 motion is not always necessary, a hearing is required where the defendant bases the motion upon nonrecord facts that are material and, if established, would entitle the defendant to relief”… . In support of his motion to vacate the judgment of conviction, defendant tendered his own affidavit, wherein he asserted that he had completed his prison sentence and period of postrelease supervision and that he was being held at a federal detention facility pending deportation proceedings. He stated that trial counsel failed to inform him of the immigration consequences of being convicted as charged and that, had he been so informed, he would have asked trial counsel “to explore the possibility of a plea bargain rather than take the case to trial, even though [he] continued to maintain [his] innocence.” He further stated that trial counsel’s failure to present him with any plea offer, or to inform him of potential deportation consequences, “caused [him] to forgo any discussion of a plea bargain.” People v Blackman, 2018 NY Slip Op 07982, Third Dept 11-21-18

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/IMMIGRATION LAW (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/INEFFECTIVE ASSISTANCE  (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/VACATE CONVICTION, MOTION TO  (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))

, , ,

SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT).

The Second Department, modifying (reversing) Supreme Court in this action for divorce, determined that defendant’s motion to preclude plaintiff from introducing certain evidence at trial because of the failure to comply with discovery orders should have been granted. Defendant’s request for attorney’s fees was properly denied, however, because plaintiff is the less-monied spouse:

A court may prohibit a party “from producing in evidence designated things or items of testimony” if the party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126[2] …). Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious … . The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time … .

Here, the defendant demonstrated that the plaintiff failed to comply with court-ordered discovery over an extended period of time. The willful and contumacious character of the plaintiff’s conduct may be inferred from her failure to respond to the defendant’s letter … , despite two court orders directing her to do so, and her failure to proffer any excuse for her failure. Accordingly, that branch of the defendant’s motion which was to preclude the plaintiff from producing physical evidence or testimony at trial relating to certain limited items previously requested but not disclosed should have been granted.

We agree, however, with the Supreme Court’s denial of that branch of the defendant’s motion which was to direct the plaintiff to pay interim counsel fees in the sum of $5,000, since the plaintiff is the less-monied spouse … . Maliah-Dupass v Dupass, 2018 NY Slip Op 08018, Second Dept 11-21-18

FAMILY LAW (DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/DIVORCE (SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/CIVIL PROCEDURE (DISCOVERY, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/CPLR 3126 (DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, PRECLUSION, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/ATTORNEYS (FAMILY LAW, DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))

, , ,

DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined defendant, an inmate, did not present sufficient proof that Department of Correctional Services (DOCS) personnel acted as agents for the police when investigating a killing in the prison. Defendant alleged that inmates were coerced into testifying against him and evidence of the coercion was Brady material which should have been provided to the defense by the prosecutor. The Third Department found defendant had not met his burden of proof concerning whether the DOCS personnel were acting as agents for the police. Rather, there was evidence that the DOCS investigation and the police investigation were separate and had different purposes. Therefore defendant’s motion to vacate his conviction was properly denied:

Several cases have held that “[e]vidence gathered by prison staff . . . generally is not ‘under the control or in the possession of the People or its agents, but [is] instead in the possession of an administrative agency that was not performing law enforcement functions'”… . That said, whether knowledge of a government official or employee may be imputed to the People appears to turn on whether participation in the criminal probe was an ancillary law enforcement task… or whether the level of cooperation between the employee and law enforcement in a particular criminal investigation renders the employee an agent of the People … . Under agency principles, “acts of agents, and the knowledge they acquire while acting within the scope of their authority are presumptively imputed to their principals”… . For example, “[w]hile social workers are generally not agents of the police,” in situations where they engage in a “joint venture” with police agencies to collaborate on child abuse or sexual abuse investigations, share information and a common purpose, and have a “cooperative working arrangement” with police, an agency relationship may exist such that the social workers’ knowledge is imputed to the People … . …

… [I]t appears that the State Police and IG [the DOCS Investigator General] were conducting parallel investigations — one criminal and one administrative, albeit with some obvious and necessary overlap — addressing different aspects of the situation… . The report from the lead IG investigator — who was not called to testify — reveals that he interviewed inmates with the State Police, gathered information for two months after the incident, conferred with State Police and met with the District Attorney. But the report indicates that the IG closed its case six months before defendant’s criminal trial, based on a finding that there was no evidence of staff misconduct, indicating the administrative focus of the IG’s investigation. People v Lewis, 2018 NY Slip Op 07980, Third Dept 11-21-18

CRIMINAL LAW (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/EVIDENCE (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORS, BRADY MATERIAL, DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/BRADY MATERIAL (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/AGENCY (CRIMINAL LAW, JOINT INVESTIGATIONS, DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/VACATE CONVICTION, MOTION TO  (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))

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