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Impeachment of Defendant With a Statement Made by Defendant’s Attorney Deemed Proper

The First Department determined the impeachment of the defendant with a statement made by the defendant’s attorney at arraignment was proper:

The court properly admitted a statement made at arraignment by defendant’s counsel, who was also trial counsel, to impeach defendant after he testified to a different version of the events … At the arraignment, the attorney stated that defendant was the source of the information, and the attorney was clearly acting as defendant’s authorized agent when she provided this information to the arraignment court for her client’s benefit …, notwithstanding her assertion at trial that she had inaccurately conveyed her client’s version of the incident. Introduction of the statements did not require the People to call counsel as a witness against her client … , and the People never sought to do so. People v Ortiz, 2014 NY Slip Op 00616, 1st Dept 2-4-14

 

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Trial Court’s Failure to Address Defendant’s Requests to Proceed Pro Se Required Reversal

The First Department determined defendant had been deprived of his constitutional rights when the trial court failed to conduct a “dispassionate inquiry” in response to defendant’s repeated requests to proceed pro se:

A criminal defendant’s right to represent himself is a fundamental right guaranteed by both the federal and state constitutions. “[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so” … . The only function of the trial court, in assessing a timely request to proceed pro se, is to ensure that the waiver was made intelligently and voluntarily …. . This requirement is not satisfied “simply by repeated judicial entreaties that a defendant persevere with the services of assigned counsel, or by judicial observations that a defendant’s interests are probably better served through a lawyer’s representation” … .

Defendant’s requests to proceed pro se were denied by the court without any inquiry whatsoever. People v Lewis, 2014 NY Slip Op 00592, 1st Dept 2-4-14

 

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Malpractice Cause of Action Stated Against an Attorney Who Died Just Before the Statute of Limitations on Plaintiffs’ Action Ran Out

In a full-fledged opinion by Justice Tom, the First Department determined that plaintiffs had stated a valid malpractice claim against an attorney who died just before the statute of limitations expired:

That a cause of action might accrue when the plaintiff actually sustains a loss, however, does not require the conclusion that an attorney is absolved of responsibility for any and all consequences of his neglect of the matter simply because it occurred prior to accrual of an actionable claim. Giving plaintiff the benefit of every possible favorable inference that can reasonably be drawn from the pleadings … , as we must on a pre-answer motion to dismiss … it appears that the inaction of counsel rendered the lapse of plaintiff’s cause of action not merely possible—or even probable—but inevitable. On a motion directed at the sufficiency of the pleadings, the issue is whether the facts alleged fit within any cognizable theory of recovery, not whether the complaint is artfully pleaded …, and the circumstances of this matter do not warrant dismissal of the action, at this juncture, as against the … defendants. Cabrera v Collazo, 2014 NY Slip Op 00622, 1st Dept 2-4-14

 

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Documentary Evidence Can Be Considered In CPLR 3211(a)(7) Motion to Dismiss/Disclaimer Not Specific Enough to Preclude Fraud Cause of Action

In a full-fledged opinion by Justice Renwick, with a concurring opinion by Justice DeGrasse, the First Department determined that arbitration could not be compelled in the absence of a specific, written agreement and a fraud cause of action against Goldman Sachs based upon the sale of mortgage-backed securities to the plaintiff hedge fund could go forward. The court concluded that documentary evidence submitted by the defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) was properly considered by Supreme Court, and the disclaimer relied upon by the defendant was not specific enough to warrant dismissal of the fraud cause of action:

A CPLR 3211(a)(7) motion may be used by a defendant to test the facial sufficiency of a pleading in two different ways. On the one hand, the motion may be used to dispose of an action in which the plaintiff has not stated a claim cognizable at law. On the other hand, the motion may be used to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action. As to the latter, the Court of Appeals has made clear that a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable claim … When documentary evidence is submitted by a defendant “the standard morphs from whether the plaintiff has stated a cause of action to whether it has one”… . * * *

The law is abundantly clear in this state that a buyer’s disclaimer of reliance cannot preclude a claim of justifiable reliance on the seller’s misrepresentations or omissions unless (1) the disclaimer is made sufficiently specific to the particular type of fact misrepresented or undisclosed; and (2) the alleged misrepresentations or omissions did not concern facts peculiarly within the seller’s knowledge … . Accordingly, only where a written contract contains a specific disclaimer of responsibility for extraneous representations, that is, a provision that the parties are not bound by or relying upon representations or omissions as to the specific matter, is a plaintiff precluded from later claiming fraud on the ground of a prior misrepresentation as to the specific matter… . Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc, 2014 NY Sliip Op 00587, 1st Dept 1-30-14

 

Supreme Court’s Reliance On a Punctuation Error to Support Its Contract Interpretation Rejected

In a full-fledged opinion by Justice Andrias, the First Department reversed Supreme Court’s interpretation of a contract clause, finding the interpretation was based upon a typographical error:

…”[I]t is a cardinal principle of contract interpretation that mistakes in grammar, spelling or punctuation should not be permitted to alter, contravene or vitiate manifest intention of the parties as gathered from the language employed” …. . … “[I]t is untenable that the parties would have intentionally left the meaning of their agreement to such vagaries as placement and punctuation” … . Penguin Group (USA) v Time/Warner Retail Sales & Mktg Servs Inc, 2014 NY Slip Op 00469, 1st Dept 1-28-14

 

Judicial Estoppel Applies Only to Party Who Prevailed in Prior Proceeding

The First Department explained that the concept of judicial estoppel only applies to the prevailing party in the prior action:

Contrary to defendant’s argument, plaintiffs’ previous assertion of their own claim for contractual indemnification does not judicially estop them from denying that defendant is entitled to indemnification of attorneys’ fees under the agreement. The doctrine of judicial estoppel ” precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed'” … . As plaintiffs did not prevail on their contractual indemnification claim, the doctrine of judicial estoppel does not apply… . Wells Fargo Bank NA v Webster Bus Credit Corp, 2014 NY Slip Op 00412, 1st Dept 1-23-14

 

Notice of Voluntary Discontinuance Filed After Opponents’ Motions to Dismiss Is Untimely

The First Department determined plaintiff’s (BDO’s) notice of voluntary discontinuance was untimely because it was filed after the defendants filed motions to dismiss:

BDO unilaterally filed a notice of voluntary discontinuance. This notice was untimely because BDO served it after defendants filed their motions to dismiss (see CPLR 3217[a][1]; … David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3217:8 [“[t]he defendant who has moved to dismiss under CPLR 3211 has already done as much in the litigation (and more) than if she had merely answered the complaint”]). Indeed, if a motion to dismiss is not a “responsive pleading” within the meaning of CPLR 3217(a)(1), a plaintiff would be able to freely discontinue its action without prejudice solely to avoid a potentially adverse decision on a pending dismissal motion. This Court has made clear that such conduct is improper … . Thus, BDO’s notice was ineffective and a nullity… . BDO USA, LLP v Phoenix Four Inc, 2014 NY slip Op 00410, 1st Dept 1-23-14

 

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Attorney’s Defamation Suit Against Client Based Upon Letters Sent to the Attorney by the Client Dismissed

In a full-fledged opinion by Justice Saxe, the First Department determined that letters written by a client to an attorney, terminating the attorney’s employment, were not actionable under a defamation theory for three reasons: the statements constituted opinion; the statements were absolutely privileged; and the statements were qualifiedly privileged.  With respect to qualified privilege, the First Department wrote:

…[T]he statements contained in defendants’ letters would be subject to a qualified privilege as communications upon a subject matter in which both parties had an interest … . “The shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant [made the statement] with malice,'” which may mean either spite or ill will, or knowledge that the statement was false or made in reckless disregard of its truth or falsity … . The statement must have been made with a proper purpose, and publication must be in a proper manner and to proper parties only … .

A client’s letter to an attorney terminating the attorney’s services and explaining the client’s perceived grounds for the termination qualifies as a communication on a subject in which sender and recipient have a shared interest. Where the letter is sent only to the attorney, and access to its contents is limited to the recipient and the defendant (which includes any of defendant’s employees who assisted in its preparation), proper publication is established as a matter of law. Plaintiff’s bare allegations of malice are insufficient to prevent dismissal on this ground.

“The threat of being put to the defense of a lawsuit . . . may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself” … . As a matter of public policy, which should protect open and honest communication between attorneys and their clients, clients must be permitted to make such claims, or complaints, directly to their attorneys, and to their attorneys alone, without threat of a lawsuit. Frechtman v Gutterman, 2014 NY slip Op 00437, 1st Dept 1-23-14

 

“Foreseeability” In the Context of a Building Collapse

The First Department explained the “foreseeability” aspect of a Labor Law 240(1) action stemming from the collapse of a building:

A plaintiff in a case involving collapse of a permanent structure must establish that the collapse was “foreseeable,” not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk… . Garcia v Neighborhood Partnership Hous Dev Fund Co Inc, 2-14 NY Slip Op 00298, 1st Dept 1-21-14

 

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Tenant Who Successfully Defended a Landlord’s Holdover Action Entitled to Attorney’s Fees

The First Department, in a full-fledged opinion by Justice Renwick, over a dissent, determined that a tenant who prevailed in the defense of the landlord’s holdover proceeding was entitled to attorney’s fees pursuant to Real Property Law 24:

We now find that, having prevailed in his defense of the landlord’s holdover proceeding, the tenant is entitled to recover attorneys’ fees pursuant to Real Property Law § 234. That section states that when a lease provides for a landlord’s recovery of attorneys’ fees resulting from a tenant’s failure to perform any covenant under a lease, a reciprocal covenant “shall be implied” for the landlord to pay attorneys’ fees incurred as a result of either its failure to perform a covenant under the lease or a tenant’s successful defense:

“Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease.”

The overriding purpose of the statute is to provide a level playing field between landlords and tenants, by creating a mutual obligation that is an incentive to resolve disputes quickly and without undue expense … . As a remedial statute, Real Property Law § 234 should be accorded its broadest protective meaning consistent with legislative intent … . The outcome of any claim pursuant to Real Property Law § 234 depends upon an analysis of the specific language of the lease provision at issue in each case to discern its meaning and import … . Graham CT Owner’s Corp v Taylor, 2014 NY Slip Op 00311, 1st Dept 1-21-14

 

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