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ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS, ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT).

The Third Department determined the trial court in this medical malpractice action did not err in allowing the continued participation of the attorney for defendant hospital (AMH) after the action against the hospital had been dismissed. After the dismissal of the action against the hospital, the only liability the hospital faced was vicarious liability for the actions of its physician employee, who was represented by another attorney. The Third Department further found that the plaintiffs’ request, made for the first time at trial, to call an expert to establish, by cell phone and tower information (GIS), the location of a physician who had been called to assist at the hospital was properly denied:

Following the dismissal of all claims of direct negligence asserted against AMH, plaintiffs renewed their motion to have the role of AMH’s counsel limited. While the dismissal of the direct negligence claims rendered AMH’s potential liability purely vicarious in nature, we are unable to conclude that Supreme Court’s refusal to limit the role of AMH’s counsel during the remainder of the trial to essentially that of a spectator was in error. Because AMH’s liability would be determined by the jury’s findings in relation to plaintiffs’ claims of negligence against Olsen [its physician-employee], AMH was entitled to participate in the efforts to defeat those claims … . Supreme Court promised to exert control over the cross-examination of the remaining witnesses by AMH’s counsel, indicating its intent to prevent any attempt by AMH to “reiterate or to plow ground that has already been plowed by one side or the other,” and the record reflects that counsel’s cross-examination of these witnesses, if any, was limited and dealt primarily with different material than that explored on direct examination. The balanced approach taken by the court served to ensure defendants’ valued right to representation by counsel of their choosing while also protecting plaintiffs against the possibility of unduly cumulative and duplicative proof … . Under these circumstances, we find no “clear abuse of discretion” in the course of action taken by Supreme Court nor any prejudice to plaintiffs as a result thereof … . * * *

… [P]laintiffs first notified defendants of their intention to call a GIS expert more than three years after defendants’ respective demands for expert disclosure and during the midst of the trial. Notably, [the physcian’s] cell phone number was provided to plaintiffs during a pretrial deposition more than a year and a half earlier and, thus, plaintiffs possessed the essential facts necessary to investigate the matter — and, if necessary, to retain an expert — long before trial. Plaintiffs’ claim that they did not realize the significance of the calls, and thus the need to subpoena the phone records, until shortly before trial did not, as Supreme Court found, constitute good cause for the delay … . Moreover, we agree with Supreme Court that, given the complex and technical issues presented by the proposed GIS testimony, the mid-trial disclosure of this expert would have prejudiced defendants … . Lasher v Albany Mem. Hosp., 2018 NY Slip Op 03402, Third Dept 5-10-18

​ATTORNEYS (ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/CIVIL PROCEDURE (ATTORNEYS, TRIAL, ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/CIVIL PROCEDURE (EXPERT WITNESSES, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/MEDICAL MALPRACTICE (ATTORNEYS, TRIAL, ALTHOUGH THE HOSPITAL’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION WAS PURELY VICARIOUS ATTORNEYS FOR BOTH THE HOSPITAL AND THE EMPLOYEE-PHYSICIAN WERE PROPERLY ALLOWED TO PARTICIPATE IN THE TRIAL, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/CPLR 3101 (EXPERT WITNESSES, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))/EXPERT WITNESSES (CIVIL PROCEDURE, NOTICE, PLAINTIFFS’ MID-TRIAL REQUEST TO CALL AN EXPERT WITNESS PROPERLY DENIED (THIRD DEPT))

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT).

The Fourth Department determined defendant’s motion to vacate his conviction based upon ineffective assistance and actual innocence should not have been denied without a hearing:

… [T]he court erred in denying without a hearing that part of his motion based upon ineffective assistance of counsel. Defendant’s specific claim is that defense counsel failed to secure the presence of a witness who had potentially exculpatory information, and we agree with defendant that such a failure may serve as the basis for a finding of ineffective assistance of counsel … . At trial, defense counsel stated on the record that the witness had been subpoenaed to testify on defendant’s behalf. The witness did not testify, however, and there is nothing in the trial record indicating why. According to defendant’s moving papers, when the witness did not appear to testify, defense counsel merely stated: “Oh, well.” There is no dispute that defense counsel did not attempt to utilize the procedure for securing the trial testimony of a material witness … , or to seek a continuance to obtain the witness’s voluntary compliance with the subpoena. Notably, the witness avers in her affidavit that she was never subpoenaed.

The court denied that part of the motion based on its determination that defendant could have raised his claim on his direct appeal or in his prior CPL 440.10 motions … . That was error. Because the witness resided in another state and went by a different surname, it was not until 2014—after defendant made his two prior CPL 440.10 motions—that defendant was able to obtain an affidavit from her. The affidavit contains information not contained in the trial record and substantially supports defendant’s claim of ineffective assistance. Significantly, it raises an issue of fact whether the witness was ever subpoenaed by defense counsel. That issue of fact is separate and distinct from the witness’s information about the murder itself, which was known to defendant through the 2004 police report. Defendant could not have discovered and raised the issue of fact until 2014, when he was able to identify, locate, and obtain an affidavit from the witness. People v Borcyk, 2018 NY Slip Op 03256, Fourth Dept 5-4-18

​CRIMINAL LAW (MOTION TO VACATE CONVICTION, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/ATTORNEYS (MOTION TO VACATE CONVICTION, INEFFECTIVE ASSISTANCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,  DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/ACTUAL INNOCENCE (MOTION TO VACATE CONVICTION, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))

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FAMILY COURT SHOULD HAVE INFORMED WIFE OF HER RIGHT TO ASSIGNED COUNSEL WHEN IT BECAME CLEAR SHE WAS HAVING TROUBLE RETAINING AN ATTORNEY, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial in this divorce-custody action, determined Family Court, given the wife’s difficulty in raising money to retain new counsel, should have informed her of her right to assigned counsel pursuant to Family Court Act 262:

… [T]he mother appeared in court, explaining that, although she had retained new counsel, he was unable to attend that day and, therefore, she requested the court to “extend” or “hold off” proceeding with the continuation … . Supreme Court denied the mother’s request for an adjournment, indicating that no notice of appearance had been filed by the mother’s replacement counsel and that it could not rely solely upon her statement that she may be represented by counsel going forward. Supreme Court then proceeded with the trial, informing the mother that, under the circumstances, she was going to have to proceed pro se.

There is nothing in the record to indicate that Supreme Court ever advised the mother of her rights pursuant to Family Ct Act § 262 (a). While we appreciate that the mother initially appeared with retained counsel and Supreme Court granted her a lengthy adjournment to obtain a new attorney, it was incumbent upon the court — particularly in light of the mother’s expressed need for several months to obtain the necessary retainer fee — to advise her of the right to assigned counsel in the event that she could not afford same … . In the absence of the requisite statutory advisement of her right to counsel (see Family Ct Act § 262 [a] [v]) or a valid waiver of such right …, we find that the mother was deprived of her fundamental right to counsel… . DiBella v DiBella, 2018 NY Slip Op 03186, Third Dept 5-3-18

​FAMILY LAW (ATTORNEYS, FAMILY COURT SHOULD HAVE INFORMED WIFE OF HER RIGHT TO ASSIGNED COUNSEL WHEN IT BECAME CLEAR SHE WAS HAVING TROUBLE RETAINING AN ATTORNEY, NEW TRIAL ORDERED (THIRD DEPT))/ATTORNEYS (FAMILY LAW, AMILY COURT SHOULD HAVE INFORMED WIFE OF HER RIGHT TO ASSIGNED COUNSEL WHEN IT BECAME CLEAR SHE WAS HAVING TROUBLE RETAINING AN ATTORNEY, NEW TRIAL ORDERED (THIRD DEPT))

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RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT).

The Third Department, reversing County Court, determined respondent (defendant) did not receive effect assistance of counsel in the commitment proceedings following his plea of not responsible by reason of mental disease of defect (re: assault charges).

CPL 330.20 requires County Court to conduct an initial hearing within 10 days after receipt of psychiatric examination reports for the purpose of assigning an insanity acquittee to one of three “tracks” based upon his or her present mental condition … . “Track-one [acquittees] are those found by the trial judge to suffer from a dangerous mental disorder; i.e., a mental illness that makes them a physical danger to themselves or others. Track-two [acquittees] are mentally ill, but not dangerous, while track-three [acquittees] are neither dangerous nor mentally ill” … . County Court’s finding in this case placed respondent in track one, a status “significantly more restrictive than track two” … . “Track status, as determined by the initial commitment order, governs the acquittee’s level of supervision in future proceedings and may be overturned only on appeal from that order, not by means of a rehearing and review” … . Given the “vital[] importanc[e]” of track designation… , the initial commitment hearing was plainly “a critical stage of the proceedings during which respondent was entitled to the effective assistance of counsel, [requiring us to] consider whether counsel’s performance therein viewed in totality amounted to meaningful representation” …  We agree with respondent that counsel’s performance fell short of that standard.

By affirmatively stating at the initial hearing that she “was not contesting any findings” contained within the psychiatric reports, respondent’s counsel conceded that respondent had a dangerous mental disorder and, thus, implicitly consented to his confinement in a secure facility. Counsel did not call any witnesses or seek to cross-examine the psychiatrists who prepared the reports … , nor did counsel consult an expert on respondent’s behalf who may have offered a contrasting opinion as to his mental status or, at the very least, could have clinically assessed the examination reports and the approaches taken in reaching their ultimate conclusions … . Despite petitioner’s protestations to the contrary, there is no basis in this record to conclude that pursuit of any of these avenues — particularly cross-examination of the psychiatric examiners — would have been futile or otherwise destined for failure … . Under these circumstances, we are simply unable to discern any plausible strategy or legitimate explanation for counsel’s decision to completely acquiesce to the most severe track classification … . Matter of Matheson Kk., 2018 NY Slip Op 03195, Third Dept 5-3-18

​CRIMINAL LAW (INSANITY ACQUITEE, RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, INSANITY ACQUITTEE, RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, INSANITY ACQUITTEE, RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/INEFFECTIVE ASSISTANCE (ATTORNEYS, CRIMINAL LAW, INSANITY ACQUITTEE,  RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/INSANITY ACQUITTEE (CRIMINAL LAW, ATTORNEYS, INEFFECTIVE ASSISTANCE,  RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/COMMITMENT (CRIMINAL LAW, INSANITY ACQUITTEE, ATTORNEYS,  RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))/CRIMINAL PROCEDURE LAW (CPL) 330.20 (COMMITMENT, INSANITY ACQUITTEE, RESPONDENT, WHO PLED NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THE SUBSEQUENT CRIMINAL PROCEDURE LAW 330.20 COMMITMENT PROCEEDINGS, RESPONDENT’S COUNSEL SIMPLY ACCEPTED THE PSYCHIATRIC EXAMINATION REPORTS (THIRD DEPT))

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PLAINTIFF’S LEGAL MALPRACTICE ACTION PROPERLY SURVIVED A MOTION TO DISMISS, PLAINTIFF DEMONSTRATED THAT, ‘BUT FOR’ THE ATTORNEYS’ WITHDRAWAL OF AN APPEAL, PLAINTIFF WOULD HAVE PREVAILED AND MAY NOT HAVE BEEN TERMINATED FROM HIS EMPLOYMENT (FIRST DEPT).

The First Department determined the plaintiff’s legal malpractice action properly survived the motion to dismiss. Plaintiff sufficiently alleged that “but for” the attorneys’ withdrawing an appeal plaintiff would have been entitled to a pretermination hearing in his effort to keep his job as a police officer. Plaintiff was terminated after the appeal was withdrawn:

The allegations in the complaint establish that but for defendants’ conduct in withdrawing the appeal from Justice Ecker’s ruling, and in sending a different lawyer than the one promised to represent him at the reinstatement hearing, he would not have incurred damages … . Plaintiff showed that he would have prevailed on the appeal had it not been withdrawn, because Justice Ecker erred in concluding that plaintiff’s conviction of assault in the third degree, based on criminal negligence … constituted a violation of his oath of office, i.e., arose from “knowing or intentional conduct indicative of a lack of moral integrity,” and warranted termination without a hearing pursuant to Public Officers Law § 30(1)(e) … . …

Had plaintiff prevailed on appeal, he would have obtained a pretermination hearing, which, … in contrast to the reinstatement hearing he received, would have allowed him to argue for disciplinary measures other than termination. Plaintiff thus sufficiently alleged that defendants caused him actual ascertainable damages of lost salary and other benefits … . Roth v Ostrer, 2018 NY Slip Op 03218, First Dept 5-3-18

​ATTORNEYS (MALPRACTICE, PLAINTIFF’S LEGAL MALPRACTICE ACTION PROPERLY SURVIVED A MOTION TO DISMISS, PLAINTIFF DEMONSTRATED THAT ‘BUT FOR’ THE ATTORNEYS’ WITHDRAWAL OF A APPEAL, PLAINTIFF WOULD HAVE PREVAILED AND MAY NOT HAVE BEEN TERMINATED FROM HIS EMPLOYMENT (FIRST DEPT))/NEGLIGENCE (ATTORNEYS,  PLAINTIFF’S LEGAL MALPRACTICE ACTION PROPERLY SURVIVED A MOTION TO DISMISS, PLAINTIFF DEMONSTRATED THAT ‘BUT FOR’ THE ATTORNEYS’ WITHDRAWAL OF A APPEAL, PLAINTIFF WOULD HAVE PREVAILED AND MAY NOT HAVE BEEN TERMINATED FROM HIS EMPLOYMENT (FIRST DEPT))/LEGAL MALPRACTICE (LAINTIFF’S LEGAL MALPRACTICE ACTION PROPERLY SURVIVED A MOTION TO DISMISS, PLAINTIFF DEMONSTRATED THAT ‘BUT FOR’ THE ATTORNEYS’ WITHDRAWAL OF A APPEAL, PLAINTIFF WOULD HAVE PREVAILED AND MAY NOT HAVE BEEN TERMINATED FROM HIS EMPLOYMENT (FIRST DEPT))

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COMPLAINT DID NOT SUFFICIENTLY ALLEGE DEFENDANT HAD WAIVED THE REQUIREMENT OF WRITTEN NOTICE TO EXERCISE THE OPTION TO RENEW THE LEASE, PROPOSED AMENDMENT OF THE COMPLAINT WAS PALPABLY WITHOUT MERIT, MOTION TO AMEND WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT).

The Second Department determined the allegations in the complaint were insufficient to allege there was a waiver of the requirement that the option to renew the lease be in writing. Therefore the complaint was properly dismissed for failure to state a cause of action. The motion to amend the complaint was properly denied because the amendment was palpably insufficient or patently devoid of merit. The proposed amendment did not allege the existence of a specific agreement with the defendant. However, the motion to amend was not frivolous conduct and Supreme Court should not have awarded sanctions to defendant:

“Although a party may waive his or her rights under an agreement or decree, waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence” … . Moreover, with respect to the plaintiff’s allegations that [defendant’s representative] stated that the defendant would not object to the assignment [of the lease to the prospective purchaser of plaintiff’s business], subject to, inter alia, a credit check, “a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable” … . …

The plaintiff’s proposed amended complaint was palpably insufficient and devoid of merit. The plaintiff failed to allege that (1) it actually came to an agreement with the proposed purchaser six months prior to the expiration of the lease, (2) it gave the defendant notice of its intention to exercise the option within six months of the expiration of the lease, irrespective of whether it came to an agreement with the proposed purchaser, or (3) the proposed purchaser was creditworthy. …

… [T]he plaintiff’s conduct in moving for leave to amend the complaint and/or replead was not, under the circumstances, “frivolous” within the meaning of 22 NYCRR 130-1.1(c) … . NHD Nigani, LLC v Angelina Zabel Props., Inc., 2018 NY Slip Op 03135, Second Dept 5-2-18

​CONTRACT LAW (COMPLAINT DID NOT SUFFICIENTLY ALLEGE DEFENDANT HAD WAIVED THE REQUIREMENT OF WRITTEN NOTICE TO EXERCISE THE OPTION TO RENEW THE LEASE, PROPOSED AMENDMENT OF THE COMPLAINT WAS PALPABLY WITHOUT MERIT, MOTION TO AMEND WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT))/LANDLORD-TENANT (COMPLAINT DID NOT SUFFICIENTLY ALLEGE DEFENDANT HAD WAIVED THE REQUIREMENT OF WRITTEN NOTICE TO EXERCISE THE OPTION TO RENEW THE LEASE, PROPOSED AMENDMENT OF THE COMPLAINT WAS PALPABLY WITHOUT MERIT, MOTION TO AMEND WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT))/CIVIL PROCEDURE (SANCTIONS, FRIVOLOUS CONDUCT, MOTION TO AMEND THE COMPLAINT WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT))/SANCTIONS (FRIVOLOUS CONDUCT, MOTION TO AMEND THE COMPLAINT WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT))/FRIVOLOUS CONDUCT (MOTION TO AMEND THE COMPLAINT WAS NOT FRIVOLOUS CONDUCT WARRANTING SANCTIONS (SECOND DEPT))

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INTRA- OR INTER- AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY), PREVAILING PARTIES ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that the intra- or inter-agency exemption from the Freedom of Information Law (FOIL) could not be stretched to include communications between Mayor de Blasio’s office and an outside consultant retained by a private organization (Campaign for One New York or CONY), as opposed to a consultant hired by a government agency. Because the reporters seeking the information had substantially prevailed in seeking disclosure, they were entitled to attorney’s fees:

It is well settled that for communications between a governmental agency and an outside consultant to fall under the agency exemption, the outside consultant must be retained by the governmental agency … .

Respondents seek to broaden the agency exemption to shield communications between a governmental agency and an outside consultant retained by a private organization and not the agency. This attempt expands the agency exemption and closes the door on government transparency. Requiring an agency to retain an outside consultant to protect its communications comports with the fundamental principle that FOIL exemptions should be “narrowly interpreted so that the public is granted maximum access” to public records … . Matter of Rauh v de Blasio, 2018 NY Slip Op 03115, First Dept 5-1-18

​FREEDOM OF INFORMATION LAW (FOIL) (INTRA OR INTER AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY) (FIRST DEPT))/INTER- INTRA- AGENCY EXEMPTION (FREEDOM OF INFORMATION LAW (FOIL) (INTRA OR INTER AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY) (FIRST DEPT))/ATTORNEY’S (FREEDOM OF INFORMATION LAW (FOIL), PREVAILING PARTIES ENTITLED TO ATTORNEY’S FEES (FIRST DEPT)/CONSULTANTS (FREEDOM OF INFORMATION LAW (FOIL), INTRA OR INTER AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY) (FIRST DEPT))

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LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT).

The Fourth Department determined the liquidated damages provision in the non-compete covenant was enforceable and the defendant should have been granted summary judgment on its claim for attorney’s fees pursuant to the employment contract. Plaintiffs had argued the liquidated damages encompassed the defendant’s attorneys’ fees:

… [W]e conclude that the court properly determined that defendant met its initial burden of establishing that the liquidated damages clauses are enforceable because they represent a ” reasonable measure of the anticipated probable harm’ ” … , and plaintiffs failed to raise an issue of fact. We note that plaintiffs do not dispute that the potential damages flowing from a breach of the restrictive covenant were not readily ascertainable at the time the parties entered into the employment agreements … . Indeed, the fact that these types of damages are difficult to measure provides the foundation for a liquidated damages clause … .

… [T]he attorney fee clause of the employment agreement is not duplicative of the liquidated damages clause. One of the express purposes of the liquidated damages clause is “avoiding the costs, expenses, and uncertainties of litigation over the amount of actual damages that will be suffered by the Employer in the event of breach” … . Here, defendant seeks attorney’s fees and costs incurred in enforcing the restrictive covenant and the liquidated damages clause, which is distinct from any attorney’s fees and costs that would be incurred in litigation over the amount of actual damages … . Mathew v Slocum-Dickson Med. Group, PLLC, 2018 NY Slip Op 03059, Fourth Dept 4-27-18

​EMPLOYMENT LAW (NON-COMPETE COVENANT, LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT))/CONTRACT LAW (EMPLOYMENT LAW, NON-COMPETE COVENANT, LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT))/NON-COMPETE COVENANT (LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT))/ATTORNEY’S FEES (EMPLOYMENT LAW , NON-COMPETE COVENANT, LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT))/LIQUIDATED DAMAGES (NON-COMPETE COVENANT, LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT))

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DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT).

The Fourth Department determined that defendant was entitled to attempt to demonstrate she would not have pled guilty had she been informed of the deportation consequence of her plea, even though the issue had not been preserved and she had waived her right to appeal:

… [D]efendant, a noncitizen, contends that her felony guilty plea was not knowingly, voluntarily, and intelligently entered because County Court failed to advise her of the potential deportation consequences of such a plea, as required by People v Peque (22 NY3d 168 …) . As a preliminary matter, we note that defendant’s challenge to the voluntariness of her plea survives her waiver of the right to appeal… . Furthermore, contrary to the People’s contention, preservation was not required inasmuch as the record bears no indication that defendant knew about the possibility of deportation … . With respect to defendant’s substantive contention, the People correctly concede that the court did not properly advise defendant of the deportation consequences of her plea. We therefore hold the case, reserve decision and remit the matter to County Court to afford defendant an opportunity to move to vacate her plea based upon a showing that “there is a reasonable probability’ that she would not have pleaded guilty had she known that she faced the risk of being deported as a result of the plea” … . People v Roman, 2018 NY Slip Op 03048, Fourth Dept 4-27-18

​CRIMINAL LAW (DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/IMMIGRATION (CRIMINAL LAW, DEPORTATION, DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/PLEA, MOTION TO VACATE (DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))

PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined the cause action alleging defendant attorney’s fee was unconscionable should not have been dismissed. The court further determined that plaintiff’s motion to disqualify defendant’s attorney because plaintiff had initially consulted with an attorney at the defendant’s attorney’s firm was properly denied:

Accepting as true the allegations in the complaint and the averments in the affidavits submitted in opposition to the motion, we conclude that plaintiff has sufficiently alleged the elements of procedural and substantive unconscionability. As for procedural unconscionability, plaintiff alleged that, before entering into the agreement, he was not informed of the nature of the anticipated charges or the prospects of incarceration, and he was led to believe that defendant would be able to resolve the case without a prison sentence. At the time he entered into the agreement, plaintiff was in the hospital, and defendant was, or was perceived to be, an experienced attorney with unparalleled expertise in defending against cases involving driving while intoxicated. As for substantive unconscionability, plaintiff alleged that defendant’s $125,000 fee was at least three times larger than, and thus drastically out of proportion with, fees charged in similar cases. We further conclude that defendant’s evidentiary submissions in support of the motion, which included his own affidavit and that of an expert, did not conclusively establish that the agreement was ” fair, reasonable, and fully known and understood’ ” by plaintiff … . …

[The submitted] affidavits establish that the attorney with whom plaintiff consulted had no recollection and kept no notes of the consultation, did not share with defendant’s attorney any information that he learned during the consultation, and would not discuss the present action with defendant’s attorney in the future. Furthermore, the affidavits establish that the law firm employs screening procedures consistent with the Rules of Professional Conduct and that defendant’s attorney would not be sharing any fees with the attorney with whom plaintiff consulted. Thus, the affidavits establish compliance with rule 1.18 of the Rules of Professional Conduct (22 NYCRR 1200.0), and we conclude that the court properly exercised its discretion in denying the motion … . Divito v Fiandach, 2018 NY Slip Op 02922, Fourth Dept 4-27-18

ATTORNEYS (PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/ATTORNEY’S FEES (UNCONSCIONABLE, PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/UNCONSCIONABLE ATTORNEY’S FEES  (PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/DISQUALIFICATION OF ATTORNEYS (MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/CONFLICT OF INTEREST (ATTORNEYS, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/RULES OF PROFESSIONAL CONDUCT (ATTORNEYS, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))

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