Attorneys – Page 99 – New York Appellate Digest

DEFENDANT WAS ENTITLED TO SEVERANCE FROM THE CODEFENDANTS, CODEFENDANTS TOOK AN AGGRESSIVE ADVERSERIAL STANCE AGAINST DEFENDANT AT TRIAL, NEW TRIAL ORDERED.

The Fourth Department determined defendant’s trial for criminal possession of a weapon should have been severed from the trial of his codefendants for the same offense. At trial the codefendants alleged it was defendant who possessed the weapon:

We conclude that the codefendants’ respective attorneys “took an aggressive adversarial stance against [defendant at trial], in effect becoming a second [and a third] prosecutor” … . We further conclude that the ” essence or core of the defenses [were] in conflict, such that the jury, in order to believe the core of one defense, . . . necessarily [had to] disbelieve the core of the other’ ” … . Thus, in retrospect … , there was “a significant danger . . . that the conflict alone would lead the jury to infer defendant’s guilt,” and therefore severance was required … . People v Mcguire, 2017 NY Slip Op 02206, 4th Dept 3-24-17

CRIMINAL LAW (DEFENDANT WAS ENTITLED TO SEVERANCE FROM THE CODEFENDANTS, CODEFENDANTS TOOK AN AGGRESSIVE ADVERSERIAL STANCE AGAINST DEFENDANT AT TRIAL, NEW TRIAL ORDERED)/SEVERANCE (CRIMINAL LAW, DEFENDANT WAS ENTITLED TO SEVERANCE FROM THE CODEFENDANTS, CODEFENDANTS TOOK AN AGGRESSIVE ADVERSERIAL STANCE AGAINST DEFENDANT AT TRIAL, NEW TRIAL ORDERED)

March 24, 2017

Attorneys, Criminal Law

DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY.

The Third Department determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant alleged he was not informed of the intoxication defense prior to pleading guilty:

… [R]egarding defendant’s claim in his CPL 440.10 motion that counsel’s representation was ineffective for failing to inform him that the required element of criminal intent for burglary in the second degree (see Penal Law § 140.25) could be negated by the defense of intoxication[:] The victims’ statements to police include the observations that defendant “looked high and his speech was slow” and that defendant appeared “either drunk or stoned.” Additionally, his criminal record reflects a history of alcohol-related arrests and convictions. Insofar as a defendant’s knowledge that the element of intent may be negated by the potential defense of intoxication is essential to a knowing and voluntary plea … and there is no indication that defendant was aware of the intoxication defense and knowingly waived his right to present such evidence, we are persuaded that defendant has raised an issue sufficient to require a hearing … . People v Perry, 2017 NY Slip Op 02095, 3rd Dept 3-23-17

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/ATTORNEYS (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/INEFFECTIVE ASSISTANCE (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/VACATE CONVICTION, MOTION TO DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/INTOXICATION DEFENSE (MOTION TO VACATE CONVICTION, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)

March 23, 2017

Attorneys, Criminal Law, Evidence

PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED.

The Second Department, reversing defendant’s conviction, determined the prosecutor’s remarks in summation amounted to prosecutorial misconduct, a 911 call made by a non-testifying witness should not have been admitted as present sense impression or an excited utterance, and the cross-examination of the complainant was unduly restricted. With respect to the prosecutor’s summation, the court wrote:

Here, during summation, the prosecutor repeatedly engaged in improper conduct. For instance, the prosecutor vouched for the credibility of the People’s witnesses with regard to significant aspects of the People’s case by asserting, inter alia, that “the witnesses who came before you provided truthful testimony that makes sense,” that they gave the “kind of truthful and credible testimony that you can rely on,” and that one witness had “no reason . . . to be anything but truthful with the 911 operator” … . In describing a complainant, the prosecutor asserted that he was “exactly what you hoped to see from someone who had troubles with the law in their youth,” but had “changed [his] life” and now worked at an organization that helps “low-income people [obtain] health care,” which was a clear attempt to appeal to the sympathy of the jury … . To support the credibility of that same complainant, the prosecutor injected the integrity of the District Attorney’s office into the trial to downplay the severity of a past criminal charge he faced … . Further, the prosecutor denigrated the defense and undermined the defendant’s right to confront witnesses by implying that the complainants were victims of an overly long cross-examination and that one was a “saint” for answering so many questions … . Moreover, the prosecutor improperly used the defendant’s right to pretrial silence against him by arguing that he could not be a victim as he did not call 911 … . The cumulative effect of these improper comments deprived the defendant of a fair trial … . People v Casiano, 2017 NY Slip Op 02053, 2nd Dept 3-22-17

CRIMINAL LAW (PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/PROSECUTORIAL MISCONDUCT (PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/EVIDENCE (CRIMINAL LAW, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/HEARSAY (CRIMINAL LAW, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/911 CALL (CRIMINAL LAW, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED

March 22, 2017

Attorneys, Privilege

NO EXPECTATION OF PRIVACY IN EMAIL ACCOUNT OWNED BY ATTORNEY’S EMPLOYER, THEREFORE ATTORNEY CLIENT AND SPOUSAL PRIVILEGES DID NOT APPLY, ATTORNEY WORK PRODUCT PROTECTION MAY APPLY.

The First Department determined nonparty Perlmutter (attorney) did not have an expectation of privacy in an email account owned by his employer, Marvel. Therefore the emails were not protected by attorney client privilege or spousal privilege. However, some emails may be protected as attorney work product:

Application of the four factors set forth in In re Asia Global Crossing, Ltd. (322 BR 247, 257 [Bankr SD NY 2005]), which we endorse … , indicates that Perlmutter lacked any reasonable expectation of privacy in his personal use of the email system of Marvel, his employer, and correspondingly lacked the reasonable assurance of confidentiality that is an essential element of the attorney-client privilege … . Among other factors, while Marvel’s email policies during the relevant time periods permitted “receiving e-mail from a family member, friend, or other non-business purpose entity . . . as a courtesy,” the company nonetheless asserted that it “owned” all emails on its system, and that the emails were “subject to all Company rules, policies, and conduct statements.” Marvel “reserve[d] the right to audit networks and systems on a periodic basis to ensure [employees’] compliance” with its email policies. It also “reserve[d] the right to access, review, copy and delete any messages or content,” and “to disclose such messages to any party (inside or outside the Company).” Given, among other factors, Perlmutter’s status as Marvel’s Chair, he was, if not actually aware of Marvel’s email policy, constructively on notice of its contents

Perlmutter’s use of Marvel’s email system for personal correspondence with his wife waived the confidentiality necessary for a finding of spousal privilege … .

Given the lack of evidence that Marvel viewed any of Perlmutter’s personal emails, and the lack of evidence of any other actual disclosure to a third party, Perlmutter’s use of Marvel’s email for personal purposes does not, standing alone, constitute a waiver of attorney work product protections … . Peerenboom v Marvel Entertainment, LLC, 2017 NY Slip Op 01981, 1st Dept 3-16-17

ATTORNEYS (NO EXPECTATION OF PRIVACY IN EMAIL ACCOUNT OWNED BY ATTORNEY’S EMPLOYER, THEREFORE ATTORNEY CLIENT AND SPOUSAL PRIVILEGES DID NOT APPLY)/PRIVILEGE (NO EXPECTATION OF PRIVACY IN EMAIL ACCOUNT OWNED BY ATTORNEY’S EMPLOYER, THEREFORE ATTORNEY CLIENT AND SPOUSAL PRIVILEGES DID NOT APPLY)/ATTORNEY CLIENT PRIVILEGE (NO EXPECTATION OF PRIVACY IN EMAIL ACCOUNT OWNED BY ATTORNEY’S EMPLOYER, THEREFORE ATTORNEY CLIENT AND SPOUSAL PRIVILEGES DID NOT APPLY)/SPOUSAL PRIVILEGE (NO EXPECTATION OF PRIVACY IN EMAIL ACCOUNT OWNED BY ATTORNEY’S EMPLOYER, THEREFORE ATTORNEY CLIENT AND SPOUSAL PRIVILEGES DID NOT APPLY)/ATTORNEY WORK PRODUCT (NO EXPECTATION OF PRIVACY IN EMAIL ACCOUNT OWNED BY ATTORNEY’S EMPLOYER, THEREFORE ATTORNEY CLIENT AND SPOUSAL PRIVILEGES DID NOT APPLY, ATTORNEY WORK PRODUCT PROTECTION MAY APPLY)

March 16, 2017

Attorneys

ATTORNEY MISCONDUCT CLAIM UNDER JUDICIARY LAW 487 APPLIES ONLY TO COURT, NOT ARBITRATION, PROCEEDINGS.

The First Department noted that a Judiciary Law 487 claim against attorneys for misconduct does not apply to alleged misconduct in arbitration, as opposed to court, proceedings:

Plaintiff … failed to state a cause of action under Judiciary Law § 478, because the statute does not apply to attorney misconduct during an arbitral proceeding. The plain text of § 478 limits the statute’s application to conduct deceiving “the court or any party” … , and, because the statute has a criminal component, it must be interpreted narrowly … . Moreover, courts have held that the statute does not apply to conduct outside New York’s territorial borders or to administrative proceedings, observing that its purpose is to regulate the manner in which litigation is conducted before the courts of this State … .

In any event, plaintiff failed to allege the elements of a cause of action under the statute, i.e., intentional deceit and damages proximately caused by the deceit … . The misconduct that plaintiff alleges is not “egregious” or “a chronic and extreme pattern of behavior” … and the allegations regarding scienter lack the requisite particularity … . Doscher v Mannatt, Phelps & Phillips, LLP, 2017 NY Slip Op 01973, 1st Dept 3-16-17

ATTORNEYS (ATTORNEY MISCONDUCT CLAIM UNDER JUDICIARY LAW 487 APPLIES ONLY TO COURT, NOT ARBITRATION, PROCEEDINGS)/JUDICIIARY LAW 487 (ATTORNEY MISCONDUCT CLAIM UNDER JUDICIARY LAW 487 APPLIES ONLY TO COURT, NOT ARBITRATION, PROCEEDINGS)/ARBITRATION (ATTORNEY MISCONDUCT, ATTORNEY MISCONDUCT CLAIM UNDER JUDICIARY LAW 487 APPLIES ONLY TO COURT, NOT ARBITRATION, PROCEEDINGS)

March 16, 2017

Attorneys, Criminal Law, Immigration Law

POSSIBILITY OF DEPORTATION NOT MENTIONED AT TIME OF GUILTY PLEA, MATTER REMITTED.

The Second Department sent the matter back for a report from Supreme Court because the possibility of deportation was not mentioned at the time of the guilty plea:

Here, the record does not demonstrate that the Supreme Court mentioned the possibility of deportation as a consequence of the defendant’s plea. Under the circumstances of this case, we remit the matter to the Supreme Court, Westchester County, to afford the defendant an opportunity to move to vacate his plea, and for a report by the Supreme Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order … , and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation … . In its report to this Court, the Supreme Court shall state whether the defendant moved to vacate his plea of guilty, and if so, shall set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing … . People v Agramonte, 2017 NY Slip Op 01876, 2nd Dept 3-15-17

CRIMINAL LAW (POSSIBILITY OF DEPORTATION NOT MENTIONED AT TIME OF GUILTY PLEA, MATTER REMITTED)/DEPORATION (CRIMINAL LAW, POSSIBILITY OF DEPORTATION NOT MENTIONED AT TIME OF GUILTY PLEA, MATTER REMITTED)

March 15, 2017

Attorneys, Criminal Law, Sex Offender Registration Act (SORA)

INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF.

The Second Department determined the judge did not make a sufficient inquiry before allowing the sex offender to represent himself in this SORA proceeding:

Where a defendant makes a timely and unequivocal request to waive the right to counsel and represent herself or himself, “the trial court is obligated to conduct a searching inquiry’ to ensure that the defendant’s waiver is knowing, intelligent, and voluntary” … . “A waiver is voluntarily made when the trial court advises the defendant and can be certain that the dangers and disadvantages of giving up the fundamental right to counsel have been impressed upon the defendant'” … . “A searching inquiry’ does not have to be made in a formulaic manner, . . . although it is better practice to ask the defendant about [her or] his age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … . …

… [W]e conclude that the Supreme Court failed to conduct the requisite searching inquiry to ensure that the defendant’s waiver of the right to counsel was unequivocal, voluntary, and intelligent … . The court made only minimal inquiry into the defendant’s age, experience, intelligence, education, and exposure to the legal system, and did not explain the risk inherent in proceeding pro se or the advantages of representation by counsel. The court’s failure to conduct a searching inquiry renders the defendant’s waiver of the right to counsel invalid and requires reversal … . People v Griffin, 2017 NY Slip Op 01577, 2nd Dept 3-1-17

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/SEX OFFENDER REGISTRATION ACT (SORA) (INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/ATTORNEYS (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/

March 1, 2017

Attorneys, Criminal Law, Evidence

A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM.

The Second Department, in a full-fledged opinion by Justice Leventhal, reversing County Court, determined a conviction by guilty plea can be challenged on actual innocence grounds. The defendant was entitled to a hearing on her motion to set aside her conviction both on her actual innocence claim and her ineffective assistance of counsel claim. Defendant was a nurse who bathed a profoundly disabled child. After the bath blisters appeared on the child’s skin. At the time she stated she didn’t think the water was hot. In her motion to set aside, she alleged that she was convinced during interrogation that the water must have been too hot and pled guilty for that reason. Expert evidence indicates the blisters may not have been burns, but rather were a reaction to antibiotics. A biopsy was consistent with an allergic reaction:

Having determined that a defendant’s plea of guilty does not absolutely bar that defendant from maintaining a freestanding actual innocence claim pursuant to CPL 440.10(1)(h), we address whether the County Court properly denied, without a hearing, that branch of the defendant’s motion which was to vacate the judgment based on actual innocence. Contrary to the People’s contention, the defendant is entitled to a hearing on her actual innocence claim. “A prima facie showing of actual innocence is made out when there is “a sufficient showing of possible merit to warrant a fuller exploration”‘ by the court” … . Here, by submitting her affidavit, [defendant’s expert’s] affirmation, and other material, such as the skin biopsy pathology report, the defendant made the requisite prima facie showing … . We also note that subsequent to the entry of the defendant’s plea of guilty, the civil action against the defendant and her former employer resulted in a jury verdict in their favor. We are mindful that the burden of proof in a civil trial is different than that in a criminal trial and that the evidence presented at each may differ. However, in the civil trial, the jury found that the defendant’s care was not a proximate cause of the child’s injuries, despite the fact that the defendant and her former employer were collaterally estopped from contesting liability. People v Tiger, 2017 NY Slip Op 01575, 2nd Dept 3-1-17

CRIMINAL LAW (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/EVIDENCE (CRIMINAL LAW, MOTION TO SET ASIDE CONVICTION, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/SET ASIDE CONVICTION, MOTION TO (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ATTORNEYS (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/INEFFECTIVE ASSISTANCE (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ACTUAL INNOCENCE (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)

March 1, 2017

Attorneys, Workers' Compensation

ATTORNEY’S FEE FORM IMPROPERLY FILLED, IMPOSSIBLE FOR APPELLATE REVIEW OF $3000 AWARD.

The Third Department sent the matter back to the Worker’s Compensation Board for a review of the Board’s award of $3000 in attorney’s fees. The Third Department determined that the attorney’s fee form was not properly filled out and there was not enough information in the form to allow appellate review:

Our review of the OC-400.1 form submitted in this case reveals that it is very similar to the form submitted by counsel in Matter of Tenecela v Vrapo Constr. (146 AD3d 1217, 2017 NY Slip Op 00367 [2017]) — a form that the Board ultimately deemed to be inadequate in that case (id. at *2). Specifically, although the form here sets forth the dates upon which services were rendered to claimant and the number of hours allocated thereto, the description of those services is largely indecipherable. More to the point, the form tendered by counsel in this matter appears to allocate “25+” hours to an unspecified date or range of dates, thereby “making impossible any assessment of the services rendered” (id.). Finally, the Board premised its award (in part) upon “the financial status of . . . claimant” but, other than noting a reduction in the loss of wage-earning capacity suffered by claimant, the Board’s decision makes no reference to — and the record sheds no light upon — claimant’s financial status. For these reasons, the Board’s award of counsel fees is incapable of intelligent appellate review, and we remit this matter to the Board for reconsideration thereof … . Matter of Shiqerukaj v Gotham Broad, LLC, 2017 NY Slip Op 01426, 3rd Dept 2-23-17

WORKERS’S COMPENSATION LAW (ATTORNEY’S FEE FORM IMPROPERLY FILLED, IMPOSSIBLE FOR APPELLATE REVIEW OF $3000 AWARD)/ATTORNEYS (WORKER’S COMPENSATION LAW, ATTORNEY’S FEE FORM IMPROPERLY FILLED, IMPOSSIBLE FOR APPELLATE REVIEW OF $3000 AWARD)

February 23, 2017

Attorneys, Civil Rights Law, Defamation

UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBEL PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION.

The Third Department affirmed Supreme Court’s awards of damages (upon defendant’s default) for libel per se and abuse of process, as well as punitive damages and attorney’s fees. The Third Department determined the causes of action for intentional infliction of emotional distress and violation of privacy were not viable, and Supreme Court did not have the authority to issue an order of protection. Plaintiff alleged defendant had contacted his employers making false allegations and had initiated many actions against him raising issues already litigated. With respect to intentional infliction of emotional distress, violation of privacy, and the order of protection, the court explained:

A cause of action for intentional infliction of emotional distress should not be entertained “where the conduct complained of falls well within the ambit of other traditional tort liability” … . Here, plaintiff’s complaint incorporated his libel and abuse of process allegations as the basis for this cause of action. Because damages were awarded on those causes of action, the damages awarded on the cause of action for intentional infliction of emotional distress must be vacated.

A cause of action for violation of the right to privacy under Civil Rights Law §§ 50 and [*4]51 is “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person” … . Absent from the proof furnished by plaintiff was any indication that defendant sought to use his name or photograph “for advertising purposes or for the purposes of trade only” … . Therefore, Supreme Court should have determined that this was not a viable cause of action. …

Supreme Court can properly issue an order of protection in a matrimonial action under Domestic Relations Law §§ 240, 252 … ; here, no matrimonial action was pending. Although such an order is available under Family Ct Act article 8, the pleadings do not contain allegations of conduct that would constitute one of certain enumerated family offenses … . Xiaokang Xu v Xioling Shirley He, 2017 NY Slip Op 01412, 3rd Dept 2-23-17

DEFAMATION (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/LIBEL PER SE (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/ABUSE OF PROCESS (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/PRIVACY, VIOLATION OF (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)/ORDER OF PROTECTION (UPON DEFENDANT’S DEFAULT, PUNITIVE DAMAGES, ATTORNEY’S FEES AND DAMAGES FOR LIBLE PER SE AND ABUSE OF PROCESS WERE PROPER, HOWEVER THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATION OF PRIVACY CAUSES OF ACTION WERE NOT VIABLE, AND SUPREME COURT DID NOT HAVE THE AUTHORITY TO ISSUE THE ORDER OF PROTECTION)