LAWYERS AND DEFAMATION

By Irving O. Farber, Esq.

In Lynn & Cahill v Witkin, 130 AD3d 484 [1^st Dept 2015], the Appellate Division 1^st Department recently reversed a Lower Court’s significant award of damages in a defamation matter, a ruling that should make attorneys throughout the State take notice.

Lynn & Cahill involved a former client who, in an internet post, viciously maligned and impugned the Lawyer’s reputation by referring to him as “a confidence man”, and accusing him of being “unethical”, “sleazy”, “dangerous”, “a rotten egg”, and a “greedy, crazed and irrational nut job.”

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Discovery Order Non-Compliance: A Recipe for Sanctions & Relief Being Granted Per CPLR § 3126 and CPLR § 3124

Non-compliance with Discovery Orders is dangerous as it can ultimately lead to penalties and sanctions against non-compliant litigants and their attorneys. In practice, attorneys often intentionally disregard discovery demands served upon them despite the deadlines for responses required by the New York State Civil Practice Law and Rules (“CPLR”). Pursuant to CPLR § 3126 and CPLR § 3124, however, the Courts have discretion to severely penalize counsel representing parties who are not in compliance. As noted herein, such discovery defaults are professionally irresponsible, posing a threat to both the attorney and the client.

 

When a party fails to comply with a Discovery Demand or Discovery Order, the opposing party may file a Motion to compel the production of outstanding responses pursuant to CPLR § 3124 or a Motion seeking preclusive relief pursuant to CPLR § 3126.

Protecting Confidential HIV Related Medical Records in the Discovery Process

The United States Center for Disease Control estimates that over 1.2 million people in the United States are living with HIV infection and HIV/AIDS has resulted in the death of approximately 658,507 Americans.[i] As counsel to those who are infected or affected by HIV/AIDS, attorneys must protect the confidentiality of HIV-related medical records in litigation where disclosure is sought.

A wide scope of discovery is permitted under CPLR § 3101 which instructs that, “There shall be full disclosure of all matters material and necessary in the prosecution of defense of an action, regardless of the burden of proof.”

Post Appeal Motion to Renew in the Supreme Court

By: Gary E. Bashian, Esq.*

 

It ain’t over till it’s over

–Yogi Berra

 

Consider the following scenario:

1. A Defendant’s Pre-Answer Motion to Dismiss is partially granted by a Court of original Jurisdiction, striking several of Plaintiff’s Causes of Action as pled;
2. Both parties appeal to the Appellate Division, where the Lower Court’s Order is affirmed in its entirety;
3. During the Discovery process, months, or maybe even years subsequent to the Order striking Plaintiff’s originally pled Causes of Action, new facts and evidence come to light during the Discovery process which clearly establish that Dismissal of one or more of Plaintiff’s originally pled Causes of Action was in error.

Question: What do you do?

“Death Bed” “Quickie” Marriages Held to be Void Ab Initio by Appellate Division

Elder abuse, including the financial exploitation of elderly individuals, especially by non family members, who have become mentally incapacitated[1] is an unfortunate and growing problem in our society. The unique vulnerabilities of those abused, the easily overlooked evidence of such abuse, and the sometimes invisible nature of the abuse itself, make this a difficult issue to both recognize and address, even by those closest to its victims.  This abuse, compounded by individuals seeking to profit from their abuse and seemingly statutory loopholes allowing them to do so beckoned judicial intervention.

Court of Appeals Rules there is Privity between the Estate Planner and the Client’s Personal Estate Representative: But no Privity to Beneficiaries of the Estate

The traditional protection from legal malpractice claims afforded Estate practitioners by the doctrine of Privity has been relaxed by a recent New York Court of Appeals decision.

In the Estate of Saul Schneider v Finmann[i], a unanimous Court of Appeals has ruled that a personal Estate representative “stands in the shoes of the decedent,” and therefore has “the capacity to maintain a malpractice claim on the Estate’s behalf[ii].”

Court of Appeals Overturns Itself in Hyde and Approves Allocating Estate’s Attorney Fees against Objecting Beneficiaries if Litigation against Estate is Vexatious

By: Gary E. Bashian, Esq.

The New York Court of Appeals, on June 29, 2010, resurrected what it has deemed was the original intent of SCPA § 2110, which governs the fixing and determining of attorney’s fees for services rendered to a fiduciary, devisee, legatee, or ­­­­­interested party, for legal services rendered to a fiduciary by an attorney in Estate matters. In the Matter of Hyde,[i] the Court considered if a fiduciary’s legal fees, which the Estate is obligated to pay, could be allocated to a particular beneficiary who filed objections in an accounting proceeding, or if such fees must be paid by the Estate as a whole, and thus all beneficiaries share in the cost equally.

Article 15: Short Form Power of Attorney- A Valuable Tool

Our firm recently argued before the Appellate Division, Second Department and was affirmed on the conflicting burdens of proof on a fiduciary when a gift is made pursuant to a short form Power of Attorney, modified in accordance with 1997 amendments to the General Obligations Law. Such was the case in Matter of Salvation Army v. Ferrara, 2005 NY Slip Op 07531 (October 11, 2005). The Appellate Division, Second Department, affirmed the decision and order of the Rockland County Surrogate’s Court. Both courts held that a Power of Attorney, which was modified to allow the respondents to make gifts to themselves “without limitation,” was valid in accordance with General Obligations Law §5-1503. The Appellate Court then went one step further and held that “evidence was adduced at the hearing to support the respondents’ contention that the decedent specifically authorized the distribution of his funds to the respondent Dominick Ferrara.” The Court then dismissed the action which sought the return of the gifts to the Estate.

Appellate Motion Practice

Bashian & Farber is pleased to announce that Andrew Frisenda, a Senior Associate and Appellate practitioner, was a featured lecturer at the Westchester County Bar Association Appellate Practice Committee’s recent Continuing Legal Education seminar, “Appeals: What’s it all About?”

Held at Pace Law School, the event included several speakers who practice in both the State and Federal Appellate Courts. Mr. Frisenda spoke at length about Motion practice at the Appellate level, focusing on both practical and procedural considerations when before the Court. Andrew has practiced extensively in the Appellate Division, Second Department, the Appellate Court for Westchester, Dutchess, Orange, Rockland, Putnam, Richmond, Kings, Queens, Nassau, and Suffolk counties, and was recently involved in Motion practice before the New York State Court of Appeals which is New York State’s highest judicial authority.

This lecture was the first in a series hosted by the Westchester County Bar Association Appellate Practice Committee regarding Appellate practice, offering guidance to the Westchester legal community about this unique—and often complex—area of the law. Please contact Mr. Frisenda if you have any questions about this Continuing Legal Education series or Appellate practice in general.

 

N.Y. Court of Appeals: Firefighters & Police can Sue Employers for Unsafe Workplace

Our office has a particular respect and appreciation for the nature of modern police and firefighting work which exposes police and firefighters to risk of physical injury on a daily basis, thereby increasing their vulnerability to physical injury or death. Our firm’s partner, Irving O. Farber, Esq., has a first-hand understanding of the dangers faced through his role as a Mount Kisco volunteer firefighter.