You are here: / Attorneys
, ,

DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES.

The Second Department determined defendant should be given the opportunity to move to vacate his guilty plea on the ground he was not informed of the deportation consequences:

The defendant contends that his plea of guilty was not knowing, voluntary, and intelligent because the record demonstrates that the Supreme Court never advised him of the possibility that he would be deported as a consequence of his plea. In People v Peque (22 NY3d 168), the Court of Appeals held that, as a matter of fundamental fairness, due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty … . A defendant seeking to vacate a plea based on this defect must demonstrate that there is a reasonable probability that he or she would not have pleaded guilty and would instead have gone to trial had the court warned of the possibility of deportation … .

Here, the record does not demonstrate that the Supreme Court mentioned the possibility of deportation as a consequence of the defendant’s plea. People v Singh, 2017 NY Slip Op 01235, 2nd Dept 2-15-17

 

CRIMINAL LAW (DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES)/DEPORTATION (CRIMINAL LAW, DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES)

, , ,

FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS IN THIS MEDICAL MALPRACTICE ACTION.

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ answers in this medical malpractice action should have been struck because of the failure to turn over the names of defendants’ employees and failure to obey court orders during discovery:

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders … . This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” … . * * *

Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Lucas v Stam, 2017 NY Slip Op 01190, 2nd Dept 2-15-17

 

CIVIL PROCEDURE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/NEGLIGENCE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/ATTORNEYS (NEGLIGENCE, DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/MEDICAL MALPRACTICE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/DISCOVERY (MEDICAL MALPRACTICE, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)

PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487; PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION.

The Fourth Department, reversing Supreme Court, determined plaintiff could bring a plenary action against their attorneys pursuant to Judiciary Law 487. The further determined the fact that plaintiff’s had previously asked for sanctions against the attorneys did not collaterally estop them from bringing the Judiciary Law action:

Plaintiffs commenced this Judiciary Law § 487 action against defendant based on her conduct when representing plaintiffs’ adversary in a foreclosure action. We agree with plaintiffs that Supreme Court erred in granting defendant’s motion to dismiss the complaint. Although plaintiffs were aware of the alleged misconduct during the pendency of the prior foreclosure action, they are not precluded from bringing a plenary action alleging a violation of Judiciary Law § 487 provided that they are not collaterally attacking the judgment from the prior action … . Indeed, the language of the statute does not require the claim to be brought in a pending action … . Here, plaintiffs are seeking to recover damages for additional legal fees made necessary by defendant’s alleged misconduct in the foreclosure action, and they are not collaterally attacking the judgment of foreclosure … .

… A motion for sanctions for frivolous conduct (see 22 NYCRR 130-1.1 [c]) is not the same as a cause of action for attorney misconduct … . We therefore conclude that collateral estoppel does not apply, inasmuch as the identical issue was not raised in the foreclosure action … . Kimbrook Rte. 31, L.L.C. v Bass, 2017 NY Slip Op 01083, 4th Dept 2-10-17

 

ATTORNEYS (PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487, PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION)/COLLATERAL ESTOPPEL (PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487, PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION)/JUDICIARY LAW 487 (PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487, PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION)

,

ATTORNEY’S FEE PROPERLY REDUCED TO $450, FEE APPLICATION NOT PROPERLY FILLED OUT.

The Third Department determined the Worker’s Compensation Board correctly reduced attorney’s fees because the fee application form was not properly completed:

… [C]laimant’s counsel contends that the Board erred in reducing the WCLJ’s award of counsel fees based upon counsel’s failure to complete the OC-400.1 fee application form with respect to dates or time spent on the services rendered. Where counsel requests a fee in excess of $450, the Board’s rules and regulations provide that an attorney must file a written application for such fee using form OC-400.1 and that form must be “accurately completed” (12 NYCRR 300.17 [d] [1]). The form specifically instructs an attorney to, among other things, include the dates that the services were rendered and the time spent [FN3]. Such information, which is also required to be provided to a claimant, is relevant to the Board’s evaluation of the services rendered (see 12 NYCRR 300.17 [e], [f], [g]). “The Board may approve counsel fees ‘in an amount commensurate with the services rendered'” … , and its award will not be disturbed absent a showing that it is arbitrary and capricious or an abuse of discretion … . Here, counsel listed the services rendered, but inserted “35 hours” for the time spent on the services and did not indicate any dates upon which the services were performed or the amount of time spent on each service rendered. Under these circumstances, we do not find that the Board abused its discretion or acted in an arbitrary and capricious manner in finding the OC-400.1 fee application form defective and reducing the counsel fees to the maximum $450 fee permitted in the absence of the accurate completion of such application form … . Matter of Curcio v Sherwood 370 Mgt. LLC, 2017 NY Slip Op 01047, 3rd Dept 2-9-17

WORKER’S COMPENSATION LAW (ATTORNEY’S FEE PROPERLY REDUCED TO $450, FEE APPLICATION NOT PROPERLY FILLED OUT)/ATTORNEYS (WORKER’S COMPENSATION LAW, ATTORNEY’S FEE PROPERLY REDUCED TO $450, FEE APPLICATION NOT PROPERLY FILLED OUT)

,

ETHICAL VIOLATION CANNOT BE USED AS A SWORD TO AVOID PAYMENT OF ATTORNEY’S FEE; BECAUSE TRIAL PREPARATION NOT NECESSARY, LOWER ATTORNEY’S-FEE PERCENTAGE APPLIED.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the fee arrangement contracts between plaintiff's attorney, Menkes, and two attorneys Menkes contracted with for assistance, Manheimer and Golomb, should be enforced according to standard prinicples of contract interpretation. Menkes argued that Manheimer was not entitled to payment because the clients were never informed (by Menkes) of Manheimer's involvement (an ethical violation). Golomb argued he was entitled to 40% of the fees because the matter did not settle at the mediation session. The Court of Appeals determined the 40% term only applied if it became necessary to prepare for trial (the case settled before trial preparation):

Menkes's attempt to use the ethical rules as a sword to render unenforceable, as between the two attorneys, the agreements with Manheimer that she herself drafted is unavailing. Her failure to inform her clients of Manheimer's retention, while a serious ethical violation, does not allow her to avoid otherwise enforceable contracts under the circumstances of this case … . * * *

Here, the mediator and Golomb communicated in the days following the May 20 mediation session, with the mediator continuing to act as go-between. Ten days after the session, the mediator communicated the final $8 million offer, which Golomb accepted. Reading the agreement as a whole, the plain language of the agreement entitles Golomb to 12% of net attorneys' fees. Marin v Constitution Realty, LLC, 2017 NY Slip Op 01019, CtApp 2-9-17

ATTORNEYS (FEES, ETHICAL VIOLATION CANNOT BE USED AS A SWORD TO AVOID PAYMENT OF ATTORNEY'S FEE, BECAUSE TRIAL PREPARATION NOT NECESSARY, LOWER ATTORNEY'S-FEE PERCENTAGE APPLIED)/CONTRACT LAW (ATTORNEY'S FEES, ETHICAL VIOLATION CANNOT BE USED AS A SWORD TO AVOID PAYMENT OF ATTORNEY'S FEE, BECAUSE TRIAL PREPARATION NOT NECESSARY, LOWER ATTORNEY'S-FEE PERCENTAGE APPLIED)

SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS, CRITERIA EXPLAINED.

The Fourth Department determined there was no basis for the award of attorney’s fees and costs to the defendants in this deed/adverse possession action. After two appeals and a trial, the defendants prevailed:

We agree with plaintiff that Supreme Court improperly awarded counsel fees and litigation costs to defendants, and we therefore reverse. The general rule in New York is that litigants are required to absorb their own counsel fees and litigation costs unless there is a contractual or statutory basis for imposing them … , and “[t]here is neither a contractual nor a statutory basis for the award of [counsel] fees to [defendants] in this case” … . Furthermore, although a court may award counsel fees as a sanction for frivolous conduct pursuant to 22 NYCRR 130-1.1, it may do so “only upon a written decision setting forth the conduct on which the award . . . is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded . . . to be appropriate” (22 NYCRR 130-1.2…). Here, defendants did not seek sanctions for frivolous conduct, and the court did not issue a written decision or make any finding that plaintiff or decedents engaged in such conduct. Furthermore, we conclude that the counterclaim seeking to recover counsel fees failed to state a cause of action inasmuch as defendants did not allege any proper basis upon which such fees would be recoverable. We therefore dismiss the counterclaims … . Perry v Edwards, 2017 NY Slip Op 00862, 4th Dept 2-3-17

ATTORNEYS (FEES, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS)/ATTORNEYS FEES (SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS)

, ,

PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS; HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED; THE MALPRACTICE ACTION WAS PROPERLY DISMISSED.

The First Department determined the legal malpractice action by plaintiff (Brookwood) against defendant law firm (A & B) was properly dismissed. The law firm defended plaintiff in a patent infringement action which eventually won (with new lawyers). Plaintiff incurred legal fees of $10 million. In this malpractice action, plaintiff alleged its legal fees would have been much lower had the law firm won certain motions early on in the case:

A focal point of this appeal is Brookwood’s claim that A & B, in the patent action, negligently litigated defenses that were available to Brookwood pursuant to 28 USC § 1498. 28 USC § 1498 provides that when a patent is infringed for the benefit of the United States government, the patent holder’s remedy is against the United States in the United States Court of Federal Claims. Brookwood alleges that had A & B not been negligent, the motions that A & B eventually brought based on 28 USC § 1498 would have been granted and Brookwood would have avoided the approximately $10 million it expended on defending itself at trial and on appeal. Important in this analysis is the fact that Brookwood ultimately prevailed in the underlying patent action, achieving a judgment of noninfringement. The theory of Brookwood’s malpractice case is not that but for A & B’s negligence it would have prevailed in the patent action; rather Brookwood’s claim is that but for the manner in which A & B interposed the defenses available to Brookwood under 28 USC § 1498, Brookwood would have prevailed without incurring the additional legal fees it expended. In other words, but for A & B’s negligence, Brookwood could have achieved the same result more expeditiously and economically. The Supreme Court granted A & B’s motion and dismissed the complaint in its entirety, holding, among other things, that the allegations did not support a finding of attorney negligence or of proximate cause. We now affirm. * * *

Decisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws. “[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment where the proper course is open to reasonable doubt” … . Moreover, an attorney’s selection of one among several reasonable courses of action does not constitute malpractice … . Brookwood has not alleged facts supporting its claim that A & B’s evidentiary decision, to rely on [the plaintiff’s] expert, rather than compromise the merits of Brookwood’s position on other arguments, was an unreasonable course of action. Brookwood Cos., Inc. v Alston & Bird LLP, 2017 NY Slip Op 00535, 1st Dept 1-26-17

 

ATTORNEYS (LEGAL MALPRACTICE, PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)/LEGAL MALPRACTICE (PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)/NEGLIGENCE (LEGAL MALPRACTICE, PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)

,

HEARING NECESSARY TO ASSESS ATTORNEY’S FEES, CRITERIA EXPLAINED.

The Third Department, over a partial dissent, reversing Supreme Court, determined a hearing must be held to assess the validity of an $80,000 attorney’s fee in a foreclosure proceeding. Supreme Court granted the fee without a hearing and without making the requisite findings:

While a hearing on counsel fees is not required when a determination can be made on the papers alone … , this is not the case here inasmuch as plaintiff’s “affidavit of services rendered . . . fail[ed] to set forth counsel’s experience, ability, and reputation, and fail[ed] to detail the prevailing hourly rate for similar legal work in the community” … . Furthermore, the itemized legal bills submitted by plaintiff are insufficient to assess the reasonableness of the fees in the absence of proof showing “the necessity of the services rendered, the benefit achieved, the difficulty of the issues involved, or any other of the considerations normally involved in calculating [counsel] fees” … .

Notwithstanding Supreme Court’s discretion in this realm and the fact that the court awarded plaintiff an amount less than what was sought, before an award of counsel fees may be fixed, “the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered” … . In our view, Supreme Court did not have before it sufficient information to summarily determine the reasonableness of the sought counsel fees. Furthermore, “to permit intelligent review, a court must provide a concise but clear explanation of its reasons for the [counsel] fee award” … . Although Supreme Court, in its order, recited the necessary factors relevant to determining the reasonableness of counsel fees, it did not provide a clear explanation for its ultimate counsel fee award. Rather, the $80,000 awarded by Supreme Court appears to derive merely from adding up all of the fees attributable to one of the attorneys who represented plaintiff — i.e., the attorney who submitted the affidavit of services — without regard to the necessary factors used to reach an award of counsel fees and with insufficient information in light of the block billing and vague and redacted time entries in the legal invoices. Accordingly, given that plaintiff’s proof was insufficient for Supreme Court to fix an award of counsel fees on the papers alone and that defendants were never afforded an opportunity in the first instance to challenge the reasonableness of the requested counsel fees, the matter must be remitted for an evidentiary hearing. Lehman Commercial Paper, Inc. v Point Prop. Co., LLC, 2017 NY Slip Op 00358, 3rd Dept 1-19-17

 

ATTORNEYS (FEES, FORECLOSURE, HEARING NECESSARY TO ASSESS ATTORNEY’S FEES, CRITERIA EXPLAINED)/FORECLOSURE (ATTORNEY’S FEES, HEARING NECESSARY TO ASSESS ATTORNEY’S FEES, CRITERIA EXPLAINED)

,

ATTORNEY’S FEE PROPERLY REDUCED BASED UPON FAILURE TO FULLY FILL OUT THE RELEVANT FORM.

The Third Department determined the requested attorney’s fee was properly reduced from $2800 to $450 because the required form was not fully filled out:

Under Workers’ Compensation Law § 24, the Board has broad discretion in approving an award of counsel fees … . Pursuant to 12 NYCRR 300.17 (d) (1), as relevant here, an attorney “shall file an application upon a form OC-400.1 in each instance where a fee is requested pursuant to [Workers’ Compensation Law § 24].” In approving counsel fee requests in matters where the claimant was awarded benefits, the Board “shall approve a fee in an amount commensurate with the services rendered and having due regard for the financial status of the claimant and whether the attorney . . . engaged in dilatory tactics or failed to comply in a timely manner with [B]oard rules. In no case shall the fee be based solely on the amount of the award” (12 NYCRR 300.17 [f]).

Here, the Board found counsel’s OC-400.1 fee application deficient for failing to indicate the date each service was performed and the specific amount of time for each service. Instead, counsel listed four categories of service with a total time for each category, identifying only the starting date for the initial work. The regulation mandates that the form “be accurately completed” (12 NYCRR 300.17 [d] [1]). Notably, the record confirms that counsel was familiar with a bulletin, Subject Number 046-548, issued by the Board on May 28, 2013, explaining that “[t]he form must be filled out in its entirety, including the section for the date, description, and amount of time spent on each service.” The bulletin further cautions that no fee will be approved unless “completed in its entirety” (see 12 NYCRR 300.17 [h]). A requirement for such specificity is consonant with the Board’s obligation to “approve a fee in an amount commensurate with the services rendered” … . Matter of Fernandez v Royal Coach Lines, Inc., 2017 NY Slip Op 00368, 3rd Dept 1-19-17

 

ATTORNEYS (FEE, WORKERS’ COMPENSATION LAW, ATTORNEY’S FEE PROPERLY REDUCED BASED UPON FAILURE TO FULLY FILL OUT THE RELEVANT FORM)/WORKERS’ COMPENSATION LAW (ATTORNEY’S FEE, FEE PROPERLY REDUCED BASED UPON FAILURE TO FULLY FILL OUT THE RELEVANT FORM)

,

PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING.

The First Department, reversing Family Court, determined Family Court should have informed pro se petitioner of his right to counsel in this order of protection proceeding:

Family Court committed reversible error when, during a brief hearing in this article 8 proceeding, it failed to advise the pro se petitioner that he had a right to the assistance of counsel of his own choosing, a right to an adjournment to confer with counsel, and a right to have counsel assigned if he was financially unable to obtain representation (Family Ct Act § 262[a][ii]…). Moreover, Family Court did not possess sufficient relevant information to allow it to make an informed determination as to whether the parties are or have been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e) … . Further evidence is needed regarding the frequency of petitioner and respondent’s interactions … . Matter of Gustavo D. v Michael D., 2017 NY Slip Op 00246, 1st Dept 1-12-17

FAMILY LAW (PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)/ATTORNEYS (FAMILY LAW, PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)/ORDER OF PROTECTION (FAMILY LAW, PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)

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