You are here: / Attorneys
,

PLAINTIFF CAN PRESENT EXPERT TESTIMONY ABOUT THE AMOUNT OF PLAINTIFF’S LEGAL COSTS ATTRIBUTABLE TO DEFENDANT-ATTORNEY’S ALLEGED USE OF AN ALLEGEDLY FORGED DOCUMENT IN LITIGATION IN VIOLATION OF JUDICIARY LAW 487 (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff (Melcher) can present expert testimony (by Lupkin) about the amount of Melcher's legal costs attributable to defendant-attorney's (Corwin's) alleged use of an allegedly forged document in violation of Judiciary Law 487:

… [W]e are cognizant of the “evident intent [of Judiciary Law § 487] to enforce an attorney's special obligation to protect the integrity of the courts and foster their truth-seeking function” … . Accordingly, we exercise our discretion to modify Supreme Court's order to permit Melcher to call Lupkin to testify as an expert witness on damages at trial, with the proviso that his testimony be limited to the assessment of the excess legal costs that Melcher was required to incur, during the period beginning February 17, 2004, and ending May 11, 2009, as the proximate result of any violation of Judiciary Law § 487 by Corwin that the factfinder may find to have occurred, as discussed above. Melcher v Greenberg Traurig LLP, 2018 NY Slip Op 06310, First Dept 9-27-18

ATTORNEYS (PLAINTIFF CAN PRESENT EXPERT TESTIMONY ABOUT THE AMOUNT OF PLAINTIFF'S LEGAL COSTS ATTRIBUTABLE TO DEFENDANT-ATTORNEY'S ALLEGED USE OF AN ALLEGEDLY FORGED DOCUMENT IN LITIGATION IN VIOLATION OF JUDICIARY LAW 487 (FIRST DEPT))/EVIDENCE (ATTORNEYS, JUDICIARY LAW 487, PLAINTIFF CAN PRESENT EXPERT TESTIMONY ABOUT THE AMOUNT OF PLAINTIFF'S LEGAL COSTS ATTRIBUTABLE TO DEFENDANT-ATTORNEY'S ALLEGED USE OF AN ALLEGEDLY FORGED DOCUMENT IN LITIGATION IN VIOLATION OF JUDICIARY LAW 487 (FIRST DEPT))/EXPERT OPINION (ATTORNEYS, JUDICIARY LAW 487, PLAINTIFF CAN PRESENT EXPERT TESTIMONY ABOUT THE AMOUNT OF PLAINTIFF'S LEGAL COSTS ATTRIBUTABLE TO DEFENDANT-ATTORNEY'S ALLEGED USE OF AN ALLEGEDLY FORGED DOCUMENT IN LITIGATION IN VIOLATION OF JUDICIARY LAW 487 (FIRST DEPT))/JUDICIARY LAW 487 (ATTORNEYS, PLAINTIFF CAN PRESENT EXPERT TESTIMONY ABOUT THE AMOUNT OF PLAINTIFF'S LEGAL COSTS ATTRIBUTABLE TO DEFENDANT-ATTORNEY'S ALLEGED USE OF AN ALLEGEDLY FORGED DOCUMENT IN LITIGATION IN VIOLATION OF JUDICIARY LAW 487 (FIRST DEPT))

,

PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT DECLARING THAT THE INSURER WAS OBLIGATED TO REIMBURSE THE PROPERTY OWNER FOR COSTS AND ATTORNEY’S FEES INCURRED IN DEFENDING THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this slip and fall case, determined the defendant property owner's (Medford's) motion for summary judgment declaring that the insurer (NGM) was obligated to reimburse the property owner's costs incurred in defending the action should have been granted:

… [T]he plaintiff allegedly was injured when she slipped and fell on ice in a parking lot on property owned by Medford Landing, L.P. (hereinafter Medford). The plaintiff commenced this action against Medford to recover damages for personal injuries. Thereafter, Medford commenced a third-party action against the third-party defendants, which provided snow removal services at the premises pursuant to a contract with Medford. The third-party complaint asserted, inter alia, causes of action based on contractual and common-law indemnification, as well as a cause of action sounding in breach of contract for failure to procure insurance naming Medford as an additional insured. Medford also commenced a second third-party action against NGM Insurance Company (hereinafter NGM), which issued a general liability insurance policy to the third-party defendants. Medford moved for summary judgment on the third-party causes of action for contractual indemnification, for common-law indemnification, and alleging breach of contract, and separately moved for summary judgment dismissing the complaint. Medford also separately moved for summary judgment declaring that it is an additional insured under the NGM policy, and that NGM is obligated to defend and indemnify it in the main action and to reimburse it for costs, disbursements, and attorneys' fees incurred in defending the main action. * * *

… [T]he Supreme Court should have granted that branch of Medford's motion which was for summary judgment declaring that NGM is obligated to reimburse Medford for costs, disbursements, and attorneys' fees incurred in defending the main action.  “An insurer's duty to defend is broader than the duty to indemnify and arises whenever the allegations of the complaint against the insured, liberally construed, potentially fall within the scope of the risks undertaken by the insurer” … . “If any of the claims against an insured arguably arise from covered events, the insurer is required to defend the entire action”… . “An additional insured is entitled to the same coverage as if it were a named insured” … . Here, Medford established, prima facie, that the allegations in the complaint suggested a reasonable possibility of coverage … . In opposition, NGM failed to raise a triable issue of fact as to whether the accident arose from Medford's independent acts so as to preclude coverage under the NGM policy, since there is no requirement that liability must be determined before an additional insured is entitled to a defense … . Further, there is no merit to NGM's contention that the subject policy provided only excess insurance coverage to Medford. The NGM policy was written as primary coverage for the third-party defendants and added Medford as an additional insured, which entitles Medford to the same coverage rights as the primary insured … . McCoy v Medford Landing, L.P., 2018 NY Slip Op 06236, Second Dept 9-26-18

INSURANCE LAW (PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT DECLARING THAT THE INSURER WAS OBLIGATED TO REIMBURSE THE PROPERTY OWNER FOR COSTS AND ATTORNEY'S FEES INCURRED IN DEFENDING THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (FEES, INSURANCE LAW, PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT DECLARING THAT THE INSURER WAS OBLIGATED TO REIMBURSE THE PROPERTY OWNER FOR COSTS AND ATTORNEY'S FEES INCURRED IN DEFENDING THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (SLIP AND FALL, INSURANCE LAW, (PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT DECLARING THAT THE INSURER WAS OBLIGATED TO REIMBURSE THE PROPERTY OWNER FOR COSTS AND ATTORNEY'S FEES INCURRED IN DEFENDING THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (INSURANCE LAW, ATTORNEY'S FEES, PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT DECLARING THAT THE INSURER WAS OBLIGATED TO REIMBURSE THE PROPERTY OWNER FOR COSTS AND ATTORNEY'S FEES INCURRED IN DEFENDING THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

, , , ,

LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER’S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that legal documents, bills for legal services, and an insurance carrier's file were not subject to disclosure. All the documents were protected by attorney-client privilege or conditional immunity. The underlying medical malpractice action was against defendant Louis Lasky Memorial Medical and Dental Center and defendant Frederick Ast. The documents were requested by Ast in a proceeding to determine the amount of the settlement to be attributed to Louis Lasky and Ast:

With respect to the files maintained by Louis Lasky's attorneys, the only documents contained therein that have not already been disclosed are absolutely protected by CPLR 3101(b) and (c), as they are “primarily and predominately legal in nature and, in their full content and context, were made to render legal advice or services” to Louis Lasky … . Regarding the legal bills, it was improper for the court to order Louis Lasky to produce unredacted copies because such disclosure would reveal factual investigation and legal work done by counsel, which is privileged material … . As for the insurance carrier's file, the court correctly concluded that this file is protected by a conditional immunity, as it contained material prepared for litigation … . However, the court erred in finding that Ast met his burden of demonstrating that he had a “substantial need” for the materials in the carrier's file, and that he could not obtain their “substantial equivalent” by other means “without undue hardship” (CPLR 3101[d] …). Teran v Ast, 2018 NY Slip Op 06288, Second Dept 9-26-18

CIVIL PROCEDURE (DISCLOSURE, ATTORNEYS, LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))/ATTORNEYS (PRIVILEGE, IMMUNITY, DISCLOSURE, ATTORNEYS, LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))/PRIVILEGE (ATTORNEY-CLIENT, DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))/CPLR 3101  (DISCLOSURE, ATTORNEYS, LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))/IMMUNITY (INSURER'S FILE, ATTORNEYS, LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))/INSURANCE LAW (DISCLOSURE, INSURER'S FILE, ATTORNEYS, LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))

,

STUDENT WAS NOT DEPRIVED OF HIS RIGHT TO HAVE AN ATTORNEY PRESENT AT A COLLEGE DISCIPLINARY HEARING BY THE COLLEGE’S REFUSAL TO ADJOURN THE MATTER FOR THREE HOURS SO THE ATTORNEY COULD ATTEND, STUDENT WAS PROPERLY FOUND RESPONSIBLE FOR THE DISCIPLINARY CHARGES AND WAS PROPERLY EXPELLED (SECOND DEPT).

The Second Department, over a two-justice dissent, determined the student-petitioner's due process rights were not violated when the state college (SUNY Purchase] refused to adjourn a disciplinary hearing because petitioner's attorney could not be present. Petitioner was accused of having sex with another student without her consent. After the hearing the petitioner was found responsible and expelled. The dissent argued that the failure to grant the requested three-hour adjournment so petitioner's counsel could attend the hearing deprived petitioner of due process:

In disciplinary proceedings at public colleges, ” [d]ue process requires that the [accused students] be given the names of the witnesses against them, the opportunity to present a defense, and the results and finding of the hearing'” …  Due process does not require colleges to provide accused students with legal representation at disciplinary hearings … . Purchase's rules, the legality of which the petitioner does not challenge, allow for an attorney to be present and advise an accused student at a disciplinary hearing, but not to represent the student or interact with anyone at the hearing other than the accused student. Here, the petitioner had hired an attorney as of September 30, 2014. … [t]he petitioner was notified on September 30, 2014, that the hearing would likely be scheduled for October 6 or 7, and was informed of the exact time of the hearing on October 2, 2014. He alleges that he did not request an adjournment until “on or about” October 5, 2014, which was two days before the date of the hearing. Under these circumstances, contrary to the suggestion of our dissenting colleagues, the petitioner was not denied the opportunity to have an attorney present at the hearing … .

Purchase's determination that the petitioner committed the charged violations was supported by substantial evidence (see CPLR 7803[4]…).

Contrary to the petitioner's contention, the penalty of expulsion was not so disproportionate to the offenses as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law (see CPLR 7803[3]…). Matter of Bursch v Purchase Coll. of the State Univ. of N.Y., 2018 NY Slip Op 06090, Second Dept 9-19-18

EDUCATION-SCHOOL LAW (STUDENT WAS NOT DEPRIVED OF HIS RIGHT TO HAVE AN ATTORNEY PRESENT AT A COLLEGE DISCIPLINARY HEARING BY THE COLLEGE'S REFUSAL TO ADJOURN THE MATTER FOR THREE HOURS SO THE ATTORNEY COULD ATTEND, STUDENT WAS PROPERLY FOUND RESPONSIBLE FOR THE DISCIPLINARY CHARGES AND WAS PROPERLY EXPELLED (SECOND DEPT))/ATTORNEYS (EDUCATION-SCHOOL LAW, STUDENT WAS NOT DEPRIVED OF HIS RIGHT TO HAVE AN ATTORNEY PRESENT AT A COLLEGE DISCIPLINARY HEARING BY THE COLLEGE'S REFUSAL TO ADJOURN THE MATTER FOR THREE HOURS SO THE ATTORNEY COULD ATTEND, STUDENT WAS PROPERLY FOUND RESPONSIBLE FOR THE DISCIPLINARY CHARGES AND WAS PROPERLY EXPELLED (SECOND DEPT))/COLLEGES AND UNIVERSITIES (DISCIPLINARY CHARGES, STUDENT WAS NOT DEPRIVED OF HIS RIGHT TO HAVE AN ATTORNEY PRESENT AT A COLLEGE DISCIPLINARY HEARING BY THE COLLEGE'S REFUSAL TO ADJOURN THE MATTER FOR THREE HOURS SO THE ATTORNEY COULD ATTEND, STUDENT WAS PROPERLY FOUND RESPONSIBLE FOR THE DISCIPLINARY CHARGES AND WAS PROPERLY EXPELLED (SECOND DEPT))

, , ,

ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT).

The Second Department determined that a stipulation of settlement was properly enforced because the attorney had the apparent authority to sign the stipulation on the client’s behalf:

“An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him [or her] or his [or her] attorney or reduced to the form of an order and entered” (CPLR 2104). A stipulation of settlement signed by an attorney may bind his or her client even if it exceeds the attorney’s actual authority if the attorney had apparent authority to act on his or her client’s behalf … . Here, the plaintiff is bound by the stipulation of settlement signed by her former attorney, as the record supports the finding that even if the attorney lacked actual authority to enter into the stipulation of settlement on the plaintiff’s behalf, he had apparent authority to do so (see CPLR 2104 …). Anghel v Utica Mut. Ins. Co., 2018 NY Slip Op 06073, Second Dept 9-19-18

CIVIL PROCEDURE (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/CONTRACT LAW (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/ATTORNEYS (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/AGENCY (ATTORNEYS, STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT)/STIPULATION (ATTORNEYS, AGENCY, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/APPARENT AUTHORITY (AGENCY, ATTORNEYS, STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/CPLR 2104 (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))

, ,

SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF’S BILL OF PARTICULARS, PLAINTIFF’S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT

The Second Department, reversing Supreme Court, determined the delay in complying with a conditional discovery order did not justify Supreme Court's refusing to vacate the dismissal and allow the amendment of plaintiff's bill of particulars. The delay was short and the law office failure excuse was adequate:

“To obtain relief from a conditional order of preclusion, the defaulting party must demonstrate a reasonable excuse for the failure to produce the requested items and the existence of a potentially meritorious claim or defense” … . Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in concluding that the law office failure of the plaintiff's former counsel was not a reasonable excuse for the plaintiff's short delay in complying with the directives of the conditional order … . Moreover, the plaintiff demonstrated the existence of a potentially meritorious cause of action to recover lost wages … .

Further, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to amend her bill of particulars to allege that she had sustained property damage as a result of her alleged exposure to toxic mold and fungi at the defendants' premises. “Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . “Where this standard is met, [t]he sufficiency or underlying merit of the proposed amendment is to be examined no further'” … . Here, the proposed amendment is not palpably insufficient or patently devoid of merit, and there is no evidence that it would prejudice or surprise the defendants, since the proposed amendment arose out of the same facts as those set forth in the complaint … . Liese v Hennessey, 2018 NY Slip Op 06087, Second Dept 9-19-18

CIVIL PROCEDURE (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/ATTORNEYS  (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/LAW OFFICE FAILURE  (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/BILL OF PARTICULARS (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))

, ,

CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the law-office-failure offered as an excuse for failure to comply with a conditional order in this foreclosure action was not sufficient to justify vacating the dismissal of the action:

To vacate the dismissal, HSBC was required to demonstrate a justifiable excuse for the noncompliance with the conditional order of dismissal and the existence of a potentially meritorious cause of action (see CPLR 3216… ). Here, the proffered excuse of law office failure by prior counsel in failing to timely file a note of issue or move for entry of judgment was conclusory and wholly unsubstantiated (see CPLR 2005…). HSBC did not proffer an affidavit from anyone with personal knowledge of the purported law office failure and failed to provide any details regarding such failure. Therefore, the allegation of law office failure did not rise to the level of a reasonable excuse … . Fremont Inv. & Loan v Fausta, 2018 NY Slip Op 06084, Second Dept 9-19-18

CIVIL PROCEDURE (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/CPLR 3216 (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/CPLR 2005 (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/FORECLOSURE (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/ATTORNEYS CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/LAW OFFICE FAILURE  (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))

, , ,

DETECTIVE’S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the detective's testimony that the complainant picked the defendant out of a lineup constituted inadmissible bolstering. The issue was reviewed in the interest of justice (error not preserved);

The defendant has not preserved for appellate review his contention that the prosecutor improperly elicited testimony from a detective stating that he arrested the defendant after the defendant was identified in a lineup by the complainant. However, we nevertheless review this contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]…). The detective's testimony implicitly bolstered the complainant's testimony by providing official confirmation of the complainant's identification of the defendant … . A violation of the rule against bolstering may not be overlooked except where the evidence of identity is so strong that there is no serious issue upon that point … . Here, the evidence that the defendant committed the crime was not so overwhelming as to render the error harmless. This error was compounded by improper comments made during the People's summation regarding the complainant's identification of the defendant as the robber. People v Ramirez, 2018 NY Slip Op 06120, Second Dept 9-19-18

CRIMINAL LAW (DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/APPEALS (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/LINEUPS (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/BOLSTERING (CRIMINAL LAW, LINEUPS, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/PROSECUTORIAL MISCONDUCT (DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))

,

DEFENSE ATTORNEY TOOK A POSITION ADVERSE TO DEFENDANT STATING THERE WAS NO BASIS FOR DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR CONSIDERATION OF THE MOTION WITH NEW DEFENSE COUNSEL (SECOND DEPT).

The Second Department remitted the matter for consideration of defendant's pro se motion to withdraw his guilty plea. His attorney told the judge there was no basis for the motion which adversely affected defendant's right to counsel:

…[T]he defendant pleaded guilty to tampering with physical evidence. Thereafter, he moved pro se to withdraw his plea of guilty. When the matter came on for sentencing, the defendant advised the County Court that he wanted to withdraw his plea. His attorney stated that there was no basis for the defendant to withdraw his plea, and the court proceeded to impose sentence. The defendant's right to counsel was adversely affected when his attorney took a position adverse to that of the defendant. The court should have appointed new counsel to represent the defendant with respect to the motion to withdraw his plea of guilty … . People v Falls, 2018 NY Slip Op 06110, Second Dept 9-19-18

CRIMINAL LAW (DEFENSE ATTORNEY TOOK A POSITION ADVERSE TO DEFENDANT STATING THERE WAS NO BASIS FOR DEFENDANT'S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR CONSIDERATION OF THE MOTION WITH NEW DEFENSE COUNSEL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE ATTORNEY TOOK A POSITION ADVERSE TO DEFENDANT STATING THERE WAS NO BASIS FOR DEFENDANT'S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR CONSIDERATION OF THE MOTION WITH NEW DEFENSE COUNSEL (SECOND DEPT))/RIGHT TO COUNSEL  (DEFENSE ATTORNEY TOOK A POSITION ADVERSE TO DEFENDANT STATING THERE WAS NO BASIS FOR DEFENDANT'S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR CONSIDERATION OF THE MOTION WITH NEW DEFENSE COUNSEL (SECOND DEPT))

, ,

LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF’S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff's motion to vacate the dismissal of a foreclosure action was properly denied. Plaintiff failed to appear at a scheduled court conference and the law-office-failure excuse was deemed inadequate:

In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse and a potentially meritorious cause of action (see CPLR 5015[a][1]… ). The determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court … . The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default… .

Here, the plaintiff's bare allegation of law office failure was insufficient to demonstrate a reasonable excuse for its default … . Moreover, the plaintiff failed to provide a reasonable excuse for its lengthy delay in moving to vacate the order of dismissal … . Option One Mtge. Corp. v Rose, 2018 NY Slip Op 06023, Second Dept 9-12-18

CIVIL PROCEDURE (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/LAW OFFICE FAILURE (CIVIL PROCEDURE, LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/ATTORNEYS  (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/CPLR 2005 (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND 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