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A LEGAL MALPRACTICE COMPLAINT WHICH ALLEGES CONCLUSORY AND SPECULATIVE DAMAGES WILL BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice complaint did not state a cause of action and should have been dismissed pursuant to CPLR 3211(a). Conclusory and speculative allegations of damages are not sufficient:

“‘To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages'” … . “To establish causation in a legal malpractice action, ‘a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence'” … . “‘Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative'” … . Here, the plaintiff failed to state a cause of action to recover damages for legal malpractice because the plaintiff’s allegation that the restaurant would have had increased profits but for the defendants’ alleged malpractice is conclusory and speculative … . 126 Main St., LLC v Kriegsman, 2023 NY Slip Op 03758, Second Dept 7-12-23

Practice Point: A legal malpractice complaint does not state a cause of action if the damages allegations and conclusory are speculative.

 

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THE APPLICATION FOR A SEARCH WARRANT WAS BASED ON INFORMATION PROVIDED BY AN INFORMANT WHO WAS NOT DEMONSTRATED TO BE RELIABLE; DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress the firearm found in a search of his apartment should have been granted. The application for the search warrant was supported by uncorroborated information from an informant who was not shown to be reliable:

In support of the search warrant application, a police officer averred that he was informed by a confidential informant that the informant had observed the defendant with a handgun on three occasions, two of which were when the defendant was leaving the defendant’s apartment. As the defendant correctly contends, the police failed to establish that the information given by the confidential informant was reliable . The confidential informant’s statement was not under oath or against penal interests… , the informant had not demonstrated a “proven track record of supplying reliable information in the past,” and the only information given by the informant that the police independently corroborated prior to executing the search warrant was the fact that the defendant lived at the subject apartment and the description of the premises given by the informant … . People v Vincent, 2023 NY Slip Op 03808, Second Dept 7-12-23

Practice Point: If the application for a search warrant is based upon information from an informant, the application must demonstrate the informant and the information is reliable. Here there was no evidence the informant had provided accurate information in the past and the information was not sufficiently corroborated by other evidence.

 

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​IN A FORECLOSURE PROCEEDING, A REFEREE’S REPORT BASED UPON UNPRODUCED BUSINESS RECORDS SHOULD NOT BE CONFIRMED BY THE COURT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the referenced business records were not attached to the report:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . However, computations based on the “review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … .

… [T]he referee’s report was improperly premised upon unproduced business records. … Therefore, the referee’s findings were not substantially supported by the record … . Nationstar Mtge., LLC v Douglas, 2023 NY Slip Op 03798, Second Dept 7-12-23

Practice Point: In a foreclosure proceeding, if the business records upon which the referee’s report is based are not produced, the court should not confirm the report because the report is not “substantially supported by the record.”

 

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THE CHILDREN’S HEARSAY EVIDENCE AND KNOWLEDGE FATHER LEGALLY POSSESSED A FIREARM DID NOT SUPPORT THE NEGLECT FINDING; THE EVIDENTIARY CRITERIA FOR NEGLECT ARE EXPLAINED IN DETAIL (SECOND DEPT).

The Second Department, reversing Family Court, determined the hearsay statements of the children and the children’s knowledge father legally possessed a firearm were not sufficient to support the neglect finding against father. The proof requirements for neglect and the proper role of hearsay is discussed in some depth:

… [T]he hearsay evidence presented by the petitioner at the fact-finding hearing was insufficient to permit a finding of neglect (see Family Ct Act § 1046[a][vi] …). The hearsay statement of one child that she witnessed the father “attacking her mother in the bedroom” failed to provide any detail as to the alleged domestic violence and was not corroborated by any other evidence of domestic violence in the record (see Family Ct Act § 1046[a][vi] …). The hearsay statements of the children describing an incident in which the father yelled outside the children’s home and “reached for” or “grabbed at” one of the children on their way inside, which the children described as “uncomfortable,” “weird,” and “confus[ing],” causing one of them to be “a little anxious” and the other to “start[ ] to cry,” without more, was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired … . Furthermore, the children’s knowledge that the father legally possessed a firearm in another state was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired where there was no evidence that the father had threatened anyone with his firearm or otherwise connecting the firearm to the alleged incidents of neglect … . Matter of Kashai E. (Kashif R.E.), 2023 NY Slip Op 03784, Second Dept 7-17-23

Practice Point: Here the children’s hearsay evidence did not support the neglect finding against father. The proper use of hearsay in a neglect proceeding is clearly explained in some depth.

 

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THE DEFENDANT’S ACCOMPLICE TO MURDER CONVICTION RESTED ENTIRELY ON THE TESTIMONY OF A JAILHOUSE INFORMANT WHICH WAS AT ODDS WITH THE SURVEILLANCE VIDEO; THE TESTIMONY OF THE INFORMANT WAS REJECTED, RENDERING DEFENDANT’S CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s accomplice-to-murder conviction, determined the conviction was against the weight of the evidence. There was evidence the shooter came to and left the area where the shooting took place in a white sedan. Defendant owned a white sedan but it was not possible to tell whether the white sedan in the surveillance video was defendant’s. The People presented the testimony of a jailhouse informant who claimed defendant admitted dropping off and picking up the shooter. But the evidence given by the informant did not comport with the video surveillance of the white sedan and was therefore rejected by the Fourth Department:

… [W]e find that the version of events that the informant attributed to defendant is completely at odds with the video evidence establishing that the codefendant took an efficient, one-block circuitous route from the side street where the white sedan parked to the bar and then back to the sedan. The timing of events as established by the video evidence is too tight to permit any potential diversions or alternate routes to have been taken by the codefendant, much less the irrational choice of running along a busy thoroughfare several blocks away from the white sedan. Further, the informant’s testimony is too specific to permit the conclusion that any inconsistency between it and the video evidence is the innocuous result of an imprecise account. We therefore conclude that this is an appropriate case to substitute our own credibility determination for that made by the jury and find that the informant’s testimony is not credible ,,, . Absent the informant’s testimony, there is no evidence from which to reasonably infer that defendant shared the codefendant’s intent to cause the death of another person … or that defendant knew that the codefendant was armed at the time defendant transported him to the bar … . People v Ramos, 2023 NY Slip Op 03755, Fourth Dept 7-6-23

Practice Point: This decision is a clear example of the difference between a “legal sufficiency of the evidence” and a “weight of the evidence” analysis. Here the informant’s testimony describing a jailhouse confession by the defendant rendered the evidence legally sufficient. However the informant’s testimony was deemed incredible because it conflicted with the video evidence. The informant’s testimony was rejected by the appellate court rendering the conviction against the weight of the evidence.

Practice Point: If you search this website by clicking on the category “Criminal Law” and type “weight of the evidence” in the search bar, you will find many cases which are decided using the “weight of the evidence” label but which actually find the evidence legally insufficient. Appellate courts are now willing to reverse convictions as against the weight of the evidence where the legal sufficiency argument was not raised in the trial order of dismissal motion or where the TOD motion was not renewed upon the close of proof. Therefore, if there are deficiencies in the proof at trial, even if the legal insufficiency argument cannot be raised on appeal because it was not preserved, the “weight of the evidence” argument should be raised.

 

 

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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, PETITIONER DID NOT MEET ITS BURDEN TO PROVE IT MADE DILIGENT EFFORTS TO ASSIST RESPONDENT MOTHER IN ADDRESSING HER MENTAL HEALTH; MOTHER’S PARENTAL RIGHTS SHOULD NOT HAVE BEEN TERMINANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined the petitioner did not prove it made diligent efforts toward reunification of mother and child, given mother’s mental health and the incomplete measures to address her mental health needs. Therefore mother’s parental rights should not have been terminated. The facts are far too complex to summarize here:

The petitioning agency “bears the burden of proving . . . that such diligent efforts were made,” and must do so by clear and convincing evidence … . To satisfy that burden, the agency “must develop a plan that is realistic and tailored to fit [the] respondent’s individual situation” … , and “make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps” … . The petitioning agency “should mold its diligent efforts to fit the individual circumstances so as to allow the parent to provide for the child’s future’ ” … .

… [The] “terms and conditions” placed upon respondent required … that she “undergo a complete mental health evaluation by a licensed professional approved by [petitioner]”; engage in a domestic violence program; attend all of the child’s medical appointments and all scheduled visitation; and “successfully complete Family Services of Chemung County’s Protective Parenting Program.” We agree with respondent and the AFC that petitioner did not prove, by clear and convincing evidence, that it made diligent efforts to assist respondent in satisfying these conditions. Matter of Willow K. (Victoria L.), 2023 NY Slip Op 03730, Third Dept 7-6-23

Practice Point: Here mother had serious mental health issues and the “terms and conditions” imposed upon mother required those issues to be addressed in specific ways. Petitioner did not prove it diligently provided sufficient assistance to mother in her attempts to meet those terms and conditions. Therefore mother’s parental rights should not have been terminated.

 

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THE JUDGE SHOULD HAVE ALLOWED TIME FOR OBJECTIONS TO PETITIONER’S APPLICATION TO WITHDRAW THE NEGLECT PETITION AND CANCEL THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have granted petitioner’s request to withdraw the neglect petition and cancel the fact-finding hearing without allowing time for objections to be raised:

We agree with the AFC that Family Court erred in granting petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. We are cognizant that, “ordinarily[,] a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” … . However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare … , whether prejudice should attach to the discontinuance … or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032 [b] …). Because Family Court dismissed the petition without allowing the parties — including the father as a nonrespondent parent — to present any arguments regarding petitioner’s application for a discontinuance, we remit this matter to allow them the opportunity to do so. Matter of Lauren X. (Daughn X.), 2023 NY Slip Op 03732, Third Dept 7-6-23

Practice Point: Although a party’s application to discontinue an action, here a neglect petition, should ordinarily be granted, here the judge should have allowed time for objections before granting the application.

 

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A ROCKY LEDGE UNDER FOUR INCHES OF WATER IN A NATURAL SWIMMING HOLE SURROUNDED BY IRREGULAR ROCK WAS OPEN AND OBVIOUS AND PLAINTIFF ASSUMED THE RISK OF STRIKING HER FOOT ON THE ROCK LEDGE (THIRD DEPT).

The Third Department, reversing (modifying) the Court of Claims, determined defendant (a state-owned park with a natural swimming area surrounded by irregular rock) was not liable for plaintiff’s injury caused by striking a rock ledge covered by four inches of water. Defendant demonstrated the water was clear and the rock ledge was open and obvious. Defendant further demonstrated the swimming area had been made as safe as possible. In addition plaintiff assumed the risk of swimming there:

The open and obvious nature of the rock shelf obviated any duty on defendant’s part to warn park users of its presence … . * * *

While it may be true that a rocky underwater surface could be less optimal for swimming than an engineered swimming pool, it nevertheless remains the case that claimant’s striking of her foot on a rock ledge was a reasonably foreseeable risk inherent in swimming in the gorge, and the swimming conditions were as safe as they appeared to be … . McQuillan v State of New York, 2023 NY Slip Op 03734, Third Dept 7-6-23

Practice Point: A rocky ledge under four inches of water in a natural swimming hole surrounded by irregular rock was open and obvious. Plaintiff assumed the risk of striking her foot on the rock ledge.

 

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THE EVIDENCE THAT DEFENDANT INTENDED TO PURCHASE DEALER QUANTITIES OF COCAINE FROM A DEALER (SANCHEZ) AND COOKED CRACK COCAINE FOR THAT DEALER WAS NOT LEGALLY SUFFICIENT EVIDENCE OF AN INTENT TO ORGANIZE OR LEAD THE DEALER’S DISTRIBUTION NETWORK; CONSPIRACY CONVICTON REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conspiracy to distribute cocaine conviction, determined the conviction was not supported by legally sufficient evidence:

… [D]efendant’s conviction of conspiracy in the second degree based upon the underlying crime of operating as a major trafficker is not supported by legally sufficient evidence. The evidence presented by the People shows only that defendant intended to purchase dealer quantities of cocaine from Sanchez and cooked crack cocaine for Sanchez when requested, but wholly fails to connect defendant to Sanchez’s broader cocaine dealing network, as defendant was not linked to any of the stash houses or the other individuals with whom Sanchez was in contact. Although Penal Law § 220.77 (1) does not contain a defined mens rea term, it is not a strict liability crime (see Penal Law § 15.15 [2]), and its plain language requires proof that defendant engaged in conduct constituting the administration, organization or leadership of a controlled substance organization. The proof offered by the People does not set forth a valid line of reasoning to permissibly infer that this specific intent was met here. While defendant’s purchase of dealer quantities of cocaine from Sanchez and an agreement to cook crack cocaine for him might be sufficient to establish his knowledge of a broader cocaine distribution network … , they are not sufficient to infer that defendant intended Sanchez to administer, organize or lead a controlled substance organization, as the knowledge of such an organization is not equivalent to the intent to control one. People v Lundy, 2023 NY Slip Op 03727, Third Dept 7-6-23

Practice Point: Conspiracy is a specific intent crime. Here the fact that defendant intended to purchase dealer quantities of cocaine from a dealer and cooked crack cocaine for the dealer was not legally sufficient evidence of the intent that the dealer administer, organize or lead a drug organization. The conspiracy conviction was vacated.

 

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ALLOWING A POLICE OFFICER TO NARRATE A VIDEO ALLEGEDLY DEPICTING THE DEFENDANT COMMITTING ASSAULT WAS REVERIBLE ERROR; THE FUNCTION OF THE JURY WAS USURPED (SECOND DEPT).

The Second Department, vacating some of defendant’s convictions, determined it was error to allow a police officer to interpret the video alleged to depict defendant committing assault:

… [T]he trial court should have precluded the testimony of a police detective regarding his opinion as to what a video of the assault on the first victim depicted. Such testimony improperly usurped the jury’s function by interpreting, summarizing, and marshaling the evidence, and was improperly admitted into evidence as relevant to the detective’s investigation. Rather than aiding the jury in understanding the investigation, the detective improperly narrated the video and the detective’s interpretation of the video, which was not necessarily supported by the video itself, also improperly “instruct[ed] the jury on the existence of the facts needed to satisfy the elements of the charged offense” … . The error cannot be deemed harmless with regard to the convictions of assault in the first degree and gang assault in the first degree, which stemmed from the assault upon the first victim, and with regard to the conviction of criminal possession of a weapon in the third degree, since the evidence of the defendant’s guilt of those crimes, without reference to the error, was not overwhelming, and it cannot be said that there is no significant probability that the jury would have acquitted the defendant on those charges had it not been for the error … . People v Ramos, 2023 NY Slip Op 03709, Second Dept 7-5-23

Practice Point: It was the jury’s role to interpret a video of the assault. Allowing a police officer to narrate the video usurped the function of the jury.

 

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