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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))

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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))

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COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action for legal malpractice and should not have been dismissed. The court explained that whether the action would survive a subsequent summary judgment motion is not to be considered. The complaint alleged plaintiff was injured by a pizza delivery driver and the attorneys failed to sue the employer (Dominos):

“On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . …

Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the plaintiff stated a cause of action to recover damages for legal malpractice … . The evidentiary submissions did not establish that a material fact alleged in the complaint is not a fact at all and that no significant dispute exists regarding it … . Contrary to the defendants’ contention, the plaintiff was entitled to commence this legal malpractice action even though the underlying personal injury action was still pending, as the legal malpractice action accrued, at the latest, in November 2014 … . Lopez v Lozner & Mastropietro, P.C. , 2018 NY Slip Op 08017, Second Dept 11-21-18

ATTORNEYS (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LEGAL MALPRACTICE (COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (MOTIONS TO DISMISS,  COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/DISMISS COMPLAINT, MOTION TO (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3211 (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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PRODUCTION OF CONDOMINIUM RECORDS PROPERLY REQUESTED, THE BOARD’S PAYMENT OF THE SUBPOENAED PARTIES’ LEGAL EXPENSES IN RESISTING THE SUBPOENAS FOR THE RECORDS WAS PROPER (FIRST DEPT).

The First Department determined the production of certain of the condominium’s books and records was properly requested by petitioners and the subpoenaed parties’ legal expenses in resisting petitioners’ subpoenas were properly paid by the condominium board:

In item (j), petitioners seek “all correspondence with . . . NY Urban [or its principal] from 2011 to the present.” This body of correspondence is relevant and necessary to petitioners’ investigation into NY Urban’s dealings with respondents, and therefore is a proper subject of the common-law right of inspection … .

In item (g), petitioners seek “[a]ll documents and records relating to the Condominium’s settlement agreement with the Condominium sponsor.” We agree with petitioners that understanding how the Condominium reached the settlement agreement is a valid purpose. Indeed, respondents concede that petitioners are entitled to receive a copy of the final settlement agreement itself. The documents specified in item (g) following the word “including” are also reasonably relevant and necessary to the stated purpose of exploring the settlement process. We reject respondents’ conclusory assertion that some unknown number of documents are protected by the attorney-client privilege or work product doctrine.

In paying the subpoenaed parties’ legal expenses, respondents were acting within the scope of their authority and in furtherance of the legitimate purpose of resisting litigation disclosure of Condominium documents, and there is no evidence that they were acting in bad faith … . Matter of Healy v Carriage House Condominium, 2018 NY Slip Op 07970, First Dept 11-20-18

CONDOMINIUMS (PRODUCTION OF CONDOMINIUM RECORDS PROPERLY REQUESTED, THE BOARD’S PAYMENT OF THE SUBPOENAED PARTIES’ LEGAL EXPENSES IN RESISTING THE SUBPOENAS FOR THE RECORDS WAS PROPER (FIRST DEPT))/ATTORNEYS (PRODUCTION OF CONDOMINIUM RECORDS PROPERLY REQUESTED, THE BOARD’S PAYMENT OF THE SUBPOENAED PARTIES’ LEGAL EXPENSES IN RESISTING THE SUBPOENAS FOR THE RECORDS WAS PROPER (FIRST DEPT))

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FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined father was denied his right to counsel in this maintenance, child support, eduction and medical expense arrears proceeding:

We agree with the father that he was denied his right to counsel at the hearing to determine whether he was in willful violation of the support order … . Supreme Court “failed to inform the father of his right to have counsel assigned if he could not afford to retain an attorney” … , and failed to grant the father an adjournment at the outset of the second day of the hearing when he requested the assistance of counsel … . To the extent that the father thereafter chose to proceed pro se, the court also failed to “engage the father in the requisite searching inquiry concerning his decision to proceed pro se and thereby ensure that the father was knowingly, intelligently and voluntarily waiving his right to counsel” … . Villella v Villella, 2018 NY Slip Op 07917, Fourth Dept 11-16-18

FAMILY LAW (ATTORNEYS, FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT))/ATTORNEYS (FAMILY LAW, RIGHT TO COUNSEL, FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT))/RIGHT TO COUNSEL (FAMILY LAW, FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT))

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APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT).

The Fourth Department determined the appeal must be dismissed for three reasons: the stipulation appealed from was entered into by consent, the appeal is not from an appealable order under CPLR 5701, and the matters raised on appeal could have been raised on a prior appeal. The court noted that counsel should have informed the court of the prior dismissed appeal:

We now dismiss the instant appeal for the following three reasons. First, defendant is not aggrieved by the “Stipulation and Order” on appeal because, as its title reflects, it constitutes an order entered on consent. As such, defendant “may not appeal from it” (…  see CPLR 5511…). The fact that defendant is aggrieved by the prior summary judgment order is of no moment because the “Stipulation and Order” is not a final order or judgment, and it thus does not bring up for review that prior order … .

Second, the appeal must be dismissed because the paper from which defendant purports to appeal is not an appealable order under CPLR 5701 (a) (2), which authorizes an appeal as of right from certain specified orders “where the motion it decided was made upon notice.” That provision is inapplicable here because the “Stipulation and Order” on appeal did not decide a motion, much less a motion made on notice … .

Third, it is well established that “[a]n appeal that has been dismissed for failure to prosecute bars, on the merits, a subsequent appeal as to all questions that could have been raised on the earlier appeal had it been perfected” … . Defendant’s substantive contentions on the instant appeal could have been raised on the prior appeal, had it been perfected. Thus, dismissal of the instant appeal is also warranted on that ground … . …

Finally, given the parties’ failure to inform us of the prior dismissed appeal in their appellate briefs, we must remind counsel that “attorneys for litigants in [an appellate] court have an obligation to keep the court informed of all . . . matters pertinent to the disposition of a pending appeal and cannot, by agreement between them, . . . predetermine the scope of [its] review”  … . Dumond v New York Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 07853, Fourth Dept 11-16-18

APPEALS (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT))/cIVIL PROCEDURE (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT))/CPLR 5701  (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT))/ATTORNEYS  (APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT)

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DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT).

The Second Department determined defendant’s motion to vacate her conviction on ineffective assistance grounds was properly denied. The prosecution presented 13 medical professional in support of its shaken baby case, but defense counsel did not present a medical expert:

Instead, trial counsel obtained the written report of a medical expert before the trial and retained a pediatric neurologist as a consulting expert, whom he consulted as issues arose during trial. During cross-examination of the People’s witnesses, trial counsel elicited testimony that supported the defendant’s theory of the case that the infant sustained injuries prior to being left at the defendant’s home.  * * *

Generally, whether to call an expert is a tactical decision … . In many instances, cross-examination of the People’s expert will be sufficient to expose defects in an expert’s presentation … . “As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance” … . …

The record shows that trial counsel made efforts to investigate the medical issues in this case. He effectively cross-examined the People’s witnesses, including the experts, and elicited testimony that was damaging to the People’s case. The fact that the defense did not call its own expert witnesses was the result of trial counsel’s legal strategy that the best way to defend this case was through impeachment of the People’s witnesses. Under the particular circumstances of this case, trial counsel provided effective representation … . People v Caldavado, 2018 NY Slip Op 07743, Second Dept 11-14-18

CRIMINAL LAW (ATTORNEYS, EVIDENCE, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/INEFFECTIVE ASSISTANCE (DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/EVIDENCE (EXPERT MEDICAL OPINION, SHAKEN BABY CASE, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/EXPERT OPINION (CRIMINAL LAW, SHAKEN BABY, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))

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COURT SHOULD NOT HAVE ORDERED THE PAYMENT OF ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT WITHOUT ALLOWING THE AFFECTED PARTY TO BE HEARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the judge should not have ordered the payment of attorney’s fees for frivolous conduct without allowing the affected party to be heard on the question:

“The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, . . . costs in the form of reimbursement for . . . reasonable attorney’s fees, resulting from frivolous conduct” (22 NYCRR 130-1.1[a]). An award of costs or the imposition of sanctions “may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable opportunity to be heard” (22 NYCRR 130-1.1[d]). Here, the respondents did not cross-move for costs or sanctions in compliance with CPLR 2215, the respondents’ opposition to the petitioner’s motion for leave to renew did not clearly articulate a request for costs or sanctions, and there is no indication in this record that the petitioner was afforded an opportunity to be heard on this issue … . Accordingly, the court improvidently exercised its discretion in awarding costs to the respondents in the form of attorneys’ fees in the sum of $2,500 … . Matter of Garvey v Sullivan, 2018 NY Slip Op 07724, Second Dept 11-14-18

JUDGES (FRIVOLOUS CONDUCT, SANCTIONS, COURT SHOULD NOT HAVE ORDERED THE PAYMENT OF ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT WITHOUT ALLOWING THE AFFECTED PARTY TO BE HEARD (SECOND DEPT))/ATTORNEYS (SANCTIONS, ATTORNEY’S FEES, COURT SHOULD NOT HAVE ORDERED THE PAYMENT OF ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT WITHOUT ALLOWING THE AFFECTED PARTY TO BE HEARD (SECOND DEPT))/FRIVOLOUS CONDUCT (ATTORNEYS, COURT SHOULD NOT HAVE ORDERED THE PAYMENT OF ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT WITHOUT ALLOWING THE AFFECTED PARTY TO BE HEARD (SECOND DEPT))/SANCTIONS (FRIVOLOUS CONDUCT, COURT SHOULD NOT HAVE ORDERED THE PAYMENT OF ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT WITHOUT ALLOWING THE AFFECTED PARTY TO BE HEARD (SECOND DEPT))/CIVIL PROCEDURE (ATTORNEYS, FRIVOLOUS CONDUCT, SANCTIONS, COURT SHOULD NOT HAVE ORDERED THE PAYMENT OF ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT WITHOUT ALLOWING THE AFFECTED PARTY TO BE HEARD (SECOND DEPT))/CPLR 2214, 2215 (ATTORNEYS, FRIVOLOUS CONDUCT, SANCTIONS, COURT SHOULD NOT HAVE ORDERED THE PAYMENT OF ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT WITHOUT ALLOWING THE AFFECTED PARTY TO BE HEARD (SECOND DEPT))/SUA SPONTE (FRIVOLOUS CONDUCT, SANCTIONS, COURT SHOULD NOT HAVE ORDERED THE PAYMENT OF ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT WITHOUT ALLOWING THE AFFECTED PARTY TO BE HEARD (SECOND DEPT))

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LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT).

The Second Department affirmed Family Court’s denial of father’s petition for downward modification of maintenance and support and the rejection of father’s claim he was denied effective assistance of counsel. The court noted that father did not demonstrate he was not at fault for losing his job and that, because father did not have a right to counsel for these proceedings, he was required to show extraordinary circumstances in support of his ineffective assistance claim:

A party seeking a downward modification of his or her spousal maintenance and child support obligations set forth in a judgment of divorce must establish a substantial change in circumstances … . Loss of employment may constitute a substantial change in circumstances where the termination occurred through no fault of the party seeking modification and he or she diligently sought re-employment commensurate with his or her earning capacity… . Here, the father failed to establish that the termination of his employment did not occur though his own fault … , or that he diligently sought new employment commensurate with his qualifications and experience. Accordingly, we agree with the Family Court’s denial of the father’s objections to the Support Magistrate’s finding that the father was not entitled to a downward modification of his support obligations… .

The father contends that he was deprived of the effective assistance of counsel. Since the father did not have the right to assigned counsel in this support modification proceeding… , he must establish the existence of extraordinary circumstances in order for his claim of ineffective assistance of counsel to be entertained… . Here, the father failed to establish the existence of any extraordinary circumstances to warrant entertaining such a claim … . Matter of Berg v Berg, 2018 NY Slip Op 07720, Second Dept 11-14-18

FAMILY LAW (MAINTENANCE, SUPPORT, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/MAINTENANCE (FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/SUPPORT FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/ATTORNEYS (FAMILY LAW, INEFFECTIVE ASSISTANCE, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/RIGHT TO COUNSEL (FAMILY LAW, INEFFECTIVE ASSISTANCE, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))

, , ,

QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the continuous representation doctrine tolled the statute of limitations. Defendant attorney (Weiss) were hired by plaintiff to bring a personal injury action. The legal malpractice action was filed more than three years after the statute had run on the personal injury case:

The complaint alleged that after the plaintiff executed the retainer agreement, Weis informed the plaintiff that the defendants were going to commence a personal injury and products liability action against the owner of the table saw, the manufacturer of the table saw, and ” everyone that touched the table saw'” until it was sold to the homeowner; the personal injury claim was ” worth millions of dollars'”; and it “would take up to seven (7) years to resolve” the personal injury claim. The complaint further alleged that from approximately September 2008 to late 2008, the plaintiff contacted Weis approximately every two weeks to inquire about the status of the personal injury claim. Weis allegedly advised the plaintiff to ” put the case on the back burner as it was going to take a long time to resolve,'” and that Weis ” had the plaintiff’s contact information,'” and ” if he needed the plaintiff, he would contact him.'” The complaint also alleged that between approximately late 2008 and July 2014, the plaintiff called the defendants’ law office every six to eight months to check on the status of the personal injury claim and spoke to a secretary each time. The complaint alleged that on July 29, 2014, the plaintiff went to the defendants’ office and asked Weis “when his court date was” because “it was getting close” to the seven-year “anniversary of the accident.” Weis allegedly told the plaintiff that he had ” no case,'” and that Weis thought the plaintiff had ” disappeared.'” …

… [T]the plaintiff raised a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until July 29, 2014, when Weis allegedly informed the plaintiff that he did not have a case. Upon entering into the retainer agreement, the plaintiff and the defendants reasonably intended that their professional relationship of trust and confidence, focused upon the personal injury claim, would continue. The complaint adequately alleged that the plaintiff was “left with the reasonable impression” that the defendants were, “in fact, actively addressing [his] legal needs” until that date. The allegations in the complaint failed to reflect, as a matter of law, that the plaintiff knew or should have known that the defendants had withdrawn from representation on the personal injury claim more than three years before the legal malpractice action was commenced … . Schrull v Weis, 2018 NY Slip Op 07769, Second Dept 11-14-18

LEGAL MALPRACTICE (QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/CIVIL PROCEDURE (LEGAL MALPRACTICE, CONTINUOUS REPRESENTATION DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/CONTINUOUS REPRESENTATION DOCTRINE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/ATTORNEYS (LEGAL MALPRACTICE, CONTINUOUS REPRESENTATION DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, CONTINUOUS REPRESENTATION DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))

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