You are here: / Attorneys
,

WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, determined the court should have conducted a searching inquiry into defendant’s representing himself when he indicated he wished to testify at the grand jury at his first and second appearances in court:

… [D]efendant appeared in City Court for arraignment on a felony complaint and a misdemeanor information charging him with the offenses for which he was later indicted. Defendant, as is relevant here, stated that he wished to represent himself and testify before the grand jury. He remained unrepresented at a second appearance three days later and reiterated his desire to appear before the grand jury. The indictment was handed up shortly thereafter, and it appears that the People disregarded defendant’s desire to testify before the grand jury because he failed to make a written demand as required … . …​

“[D]efendant’s indelible right to counsel . . . attached when the felony complaint against him was first filed” …  and, while he could waive that right and proceed pro se, the waiver would be invalid absent a “searching inquiry” by City Court to discern whether defendant understood and “appreciated the ‘dangers and disadvantages’ of” self-representation… . There was no inquiry conducted here, leaving the record silent as to whether “defendant ‘acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel’s inability to participate'” so as to constitute a valid waiver … . Defendant should therefore not have been permitted to proceed pro se … . It follows that defendant was deprived of an opportunity to consult with counsel — who could have assisted defendant in deciding whether to appear before the grand jury and made an effective demand to appear in the event he chose to do so — and this “deprivation of defendant’s constitutional right to counsel requires the dismissal of the indictment” … . People v Trapani, 2018 NY Slip Op 04041, Third Dept 6-7-18

CRIMINAL LAW (ATTORNEYS, WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))/RIGHT TO COUNSEL (WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))/GRAND JURY ( WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))

, ,

ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the court should not have awarded attorney’s fees to the defendant in this Labor Law 740 action. Plaintiff had alleged ongoing sterility problems in defendant’s operating room. Plaintiff lost the trial, in which she claimed she had been wrongfully terminated because of her complaints. The Second Department found that her claims were not without basis and, therefore, the award of attorney’s fees to defendant was an abuse of discretion:

Labor Law § 740(6) provides that a court, in its discretion, may award an employer attorneys’ fees and costs if it determines that the employee’s action is ” without basis in law or in fact'” … . Here, the trial record included testimonial and documentary evidence of the plaintiff’s numerous complaints about ongoing sterility problems in the operating room, which problems arguably constituted a violation of applicable regulations and posed a present, substantial, and specific danger to patient health. The plaintiff and other witnesses testified that these issues arose hundreds of times over the relevant time period and were not seriously addressed until after the plaintiff finally complained to her supervisor’s supervisor. The plaintiff’s annual performance evaluations demonstrate that she met or exceeded expectations throughout her tenure as a nurse manager and, despite identifying areas for improvement, did not indicate a risk of dismissal until after she complained to upper management. While ultimately unpersuasive in light of the defendant’s evidence, the plaintiff’s action “cannot reasonably be characterized as being without basis in law or in fact'” … .  The Supreme Court therefore improvidently exercised its discretion in awarding the defendant attorneys’ fees and costs pursuant to Labor Law § 740(6). Berde v North Shore- Long Is. Jewish Health Sys., Inc., 2018 NY Slip Op 03955, Second Dept 6-6-18

​EMPLOYMENT LAW (WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/LABOR LAW (WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/ATTORNEYS (FEES, WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/ATTORNEY’S FEES (WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/WRONGFUL TERMINATION (LABOR LAW 740, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))

,

COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT).

The First Department, reversing Family Court, determined mother was entitled to a hearing on her motion for attorney’s fees in this divorce action (mother sought $174,000). Family Court had dismissed mother’s motion. The First Department held that Family Court should have looked at the future earning capacity of the parties rather than their earning capacity at the time of the decision:

The purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition … . In its dismissal of the mother’s motion for counsel fees, the court unduly relied upon the financial circumstances of the parties at the time it rendered its decision rather than weighing the historical and future earning capacities of both parties … . Here, although the father was unemployed at the time the court’s decision was rendered, and the mother had secured employment, the father earned considerably more than the mother during the course of their relationship and has significantly more expected earning capacity than the mother. Indeed, the financial and tax documents in the record support such a conclusion. The father, however, is entitled to a hearing so that the relative financial positions of the parties and the value and extent of the counsel fees requested can be examined … . Matter of Brookelyn M. v Christopher M., 2018 NY Slip Op 03801, First Dept 5-29-18

​FAMILY LAW (ATTORNEY’S FEES, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))/ATTORNEY’S FEE (FAMILY LAW, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))

,

COURT DID NOT CONDUCT SEARCHING INQUIRY INTO DEFENDANT’S REQUEST TO PROCEED PRO SE, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that the court’s inquiry into defendant’s request to proceed pro se was inadequate:

The knowing, voluntary, and intelligent waiver of the right to counsel by a defendant who seeks to proceed pro se requires a “searching inquiry” in which the court must communicate to the defendant both the “risks inherent in proceeding pro se” and “the singular importance of the lawyer in the adversarial system of adjudication” … . Neither a defendant’s expression of a strong desire to proceed pro se, nor elicitation of information demonstrating the defendant might be relatively capable of doing so, is a substitute for the two above-cited essential components of a searching inquiry, which were all but completely absent here. The relevant portion of the trial court’s colloquy with defendant on this subject was essentially limited to warning him that self-representation was a “big mistake” and that the court had seen many pro se defendants convicted after trial.

Even when the record is viewed as a whole, the required inquiry does not appear. Defendant had made several requests for self-representation before a calendar court. However, in each instance the court denied the request on the basis of its initial inquiry about defendant’s understanding of the charges, without reaching the stage of the required pro se inquiry at issue on appeal. People v Herbin, 2018 NY Slip Op 03811, First Dept 5-29-18

​CRIMINAL LAW (LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/LESSER INCLUDED OFFENSES (PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/APPEALS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))

,

AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE COUNSEL HAD BEGUN EXERCISING HER PEREMPTORY CHALLENGES, THE TRIAL COURT ALLOWED THE PEOPLE TO BELATEDLY MAKE A PEREMPTORY CHALLENGE, THAT WAS REVERSIBLE ERROR (FIRST DEPT).

The First Department determined it was reversible error to allow the People to belatedly exercise a peremptory challenge to a juror (Mrs. C) after the People had indicated the chosen jurors were acceptable and the defense attorney had started exercising her peremptory challenges:

“The right of peremptory challenge given to an accused person is a substantial right,” and the order in which peremptory challenges are made “is matter of substance” “intended for the benefit of the defendant”… . The statute governing the order for peremptory challenges is not a “mere rule of procedure,” but is “a right secured to the defendant” … . The requirement that the People make peremptory challenges first “is imperative,” and violation of that rule is “a substantial, and not a mere technical error” … . …

The People here had completed their peremptory challenges for the round, and expressly told the court that the remaining prospective jurors, including Ms. C., were acceptable. It was only while defense counsel was making her peremptory challenges that the People sought to belatedly challenge Ms. C. Under these circumstances, the court’s decision to allow the challenge and excuse the juror constitutes reversible error .. . Although the People contend that there was no bad faith in their belated request to exercise the peremptory challenge, CPL 270.15(2) does not contain an exception for good faith. Nor has the Court of Appeals recognized a good faith exception in its decisions strictly construing the statute. People v Robinson, 2018 NY Slip Op 03731, First Dept 5-24-18

​CRIMINAL LAW (JURORS, AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE COUNSEL HAD BEGUN EXERCISING HER PEREMPTORY CHALLENGES, THE TRIAL COURT ALLOWED THE PEOPLE TO BELATEDLY MAKE A PEREMPTORY CHALLENGE, THAT WAS REVERSIBLE ERROR (FIRST DEPT))/JURORS (CRIMINAL LAW, AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE COUNSEL HAD BEGUN EXERCISING HER PEREMPTORY CHALLENGES, THE TRIAL COURT ALLOWED THE PEOPLE TO BELATEDLY MAKE A PEREMPTORY CHALLENGE, THAT WAS REVERSIBLE ERROR (FIRST DEPT))/PEREMPTORY CHALLENGES (CRIMINAL LAW, JURORS, AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE COUNSEL HAD BEGUN EXERCISING HER PEREMPTORY CHALLENGES, THE TRIAL COURT ALLOWED THE PEOPLE TO BELATEDLY MAKE A PEREMPTORY CHALLENGE, THAT WAS REVERSIBLE ERROR (FIRST DEPT))

,

AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the award of attorney’s fees and expert witness fees in this divorce action was an abuse of discretion:

In a matrimonial action, an award of counsel fees is a matter committed to the sound discretion of the trial court … . However, court rules impose certain requirements upon attorneys who represent clients in domestic relations matters … . These rules were designed to address abuses in the practice of matrimonial law and to protect the public, and the failure to substantially comply with the rules will preclude an attorney’s recovery of a fee from his or her client …  or from the adversary spouse … . A showing of substantial compliance must be made on a prima facie basis as part of the moving party’s papers … .

Here, the evidence proffered by the defendant in support of that branch of her motion which was for an award of counsel fees for work performed by Glynn demonstrates that Glynn failed to substantially comply with the rules requiring periodic billing statements at least every 60 days … . Accordingly, the Supreme Court erred in granting that branch of the defendant’s motion which pertains to Glynn’s counsel’s fees. …

“The award of expert witness fees in a matrimonial action is left to the sound discretion of the trial court, and should be made upon a detailed showing of the services to be rendered and the estimated time involved”… . “Absent affidavits from the expert witnesses at issue, the Supreme Court lacks a sufficient basis to grant a motion for the award of such fees” …  Here, the defendant failed to submit such expert affidavits. Greco v Greco, 2018 NY Slip Op 03509, Second Dept 5-16-18

​FAMILY LAW (DIVORCE, ATTORNEY’S FEES, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/ATTORNEYS (DIVORCE, ATTORNEY’S FEES, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/ATTORNEYS FEES (DIVORCE, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/EXPERT WITNESSES (DIVORCE, ATTORNEY’S FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))

, ,

DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT).

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction based upon ineffective assistance of counsel. Defendant demonstrated his attorney never informed him the plea included an aggravated felony which made deportation mandatory:

A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty … . “Under the federal standard for ineffective assistance of counsel, a defendant must show that his or her attorney’s performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different'” … . “Under the state standard . . . the constitutional requirements for the effective assistance of counsel are met when the defense attorney provides meaningful representation'”… . In cases asserting ineffective assistance of counsel in the plea context, a defendant must show that “there is a reasonable probability that, but for counsel’s errors, he [or she] would not have pleaded guilty and would have insisted on going to trial”… , or “that the outcome of the proceedings would have been different” … .

Here, the defendant sufficiently alleged that defense counsel failed to fully inform him that a plea of guilty exposed him to mandatory removal from the United States and that, had he been so advised, a decision to reject the plea offer would have been rational … . People v Hungria, 2018 NY Slip Op 03545, Second Dept 5-16-18

​CRIMINAL LAW (DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT))/INEFFECTIVE ASSISTANCE  (DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT))/IMMIGRATION LAW (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT))

, , ,

DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant attorneys failed to demonstrate plaintiffs suffered no damages in this legal malpractice action. Plaintiffs alleged defendants delayed in evicting plaintiffs’ tenants resulting in $500,000 in lost rent. Defendants, in their motion for summary judgment, alleged only that plaintiffs’ damages were speculative, which merely pointed to gaps in plaintiffs’ proof and is never enough for an award of summary judgment:

The defendants failed to submit evidence establishing, prima facie, that the plaintiffs are unable to prove at least one essential element of the cause of action alleging legal malpractice … . The defendants’ styling of the plaintiffs’ damages theory as “speculative” was merely an effort to point out gaps in the plaintiff’s proof, which was insufficient to meet the defendants’ burden as the party moving for summary judgment … .

Moreover, even if the plaintiffs’ damages cannot be precisely calculated at this stage, expenses to the client resulting from attorney delays are deemed to be ascertainable damages in connection with a legal malpractice cause of action … . Iannucci v Kucker & Bruh, LLP, 2018 NY Slip Op 03514, Second Dept 5-16-18

​ATTORNEYS (MALPRACTICE, DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/LEGAL MALPRACTICE (DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, MALPRACTICE, DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, LEGAL MALPRACTICE,  DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))

, ,

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))

,

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))

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