Can an attorney write a cease-and-desist letter without being sued for defamation?

March 23, 2015
Privilege

Front, Inc. v Khalil,

___ NY3d ___, 2015 NY Slip Op 01554 [2015]
Once litigation has begun, an attorney’s statements are absolutely privileged – the attorney cannot be sued for defamation. (With a caveat – see below) What about statements made during the run-up to actual litigation? Specifically, what about accusations made in a cease-and-desist letter? Are these privileged as well? And, if so, is the privilege absolute or qualified? This is, strictly speaking, not a procedural issue, yet it relates so closely to the preliminary stages of many lawsuits that it is worth discussion here.

The Court of Appeals held here that comments made by attorneys to prospective adversaries in anticipation of good-faith litigation are entitled to a qualified privilege. The privilege is lost where the statements were not made in good faith, and

“does not protect attorneys who are seeking to bully, harass, or intimidate their client’s adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel’s ethical obligations.”

So here, where a defendant made a third-party defamation claim against the plaintiff’s attorney based on good-faith statements in a cease-and-desist letter, the statements were privileged and the third-party complaint was dismissed. Read More

Venue: The Convenience of Witnesses Trumps A School District’s Home County

March 16, 2015
CPLR 504, CPLR 510, Venue

Xhika v Rocky Point Union Free Sch. Dist.,

___ AD3d ___, 2015 NY Slip Op 00874 [2d Dept., 2015]

Even a specific statutory direction as to venue can be overridden by the convenience of material witnesses, but only when a sufficient showing is actually made. This case is an example of a movant who got it right.

The required showing on a motion for a change of venue based on the convenience of witnesses is well established. There are four elements: First, the names, addresses and occupations of the prospective witnesses must be stated. Second, the facts to which the proposed witnesses will testify at the trial must be stated, so that the court may judge whether the proposed evidence of the witnesses is material and necessary. Third, it must be shown that the witnesses for whose convenience a change of venue is sought are in fact willing to testify. Fourth, there must be a showing as to how the witnesses in question would in fact be inconvenienced in the event a change of venue were not granted. (O’Brien v Vassar Bros. Hosp., 207 AD2d 169 [2d Dept., 1995]. Read More

In Honor of Pi Day

March 13, 2015
Appellate Practice, Trials

Tomorrow, March 14, 2015, is Pi Day. (3.1415, don’t you see?) In honor thereof, I present:

Kumar v PI Assoc., LLC,

___ AD3d ___, 2015 NY Slip Op 00849 [1st Dept., 2015]

When a verdict is internally inconsistent, the allowable remedies are either sending the jury back to reconsider or a new trial. The trial court may not resolve the inconsistency by making its own findings of fact.

This was a sidewalk trip-and-fall in front of a storefront owned by the defendant PI Associates and leased to the defendant Pretty Girl. The jury found that the plaintiff, PI and Pretty Girl were all negligent, but that only Pretty Girl’s negligence was a proximate cause of the accident. The jury then apportioned fault at 80% against Pretty Girl and 10% each against plaintiff and PI. The apportionment against plaintiff and PI was, of course, inconsistent with the finding of lack of causation.

The inconsistency was immediately recognized by the court and the parties. Rather than send the jury back for further consideration, the court discharged the jury and entertained motions. Plaintiff moved to set aside the inconsistent verdict and for a directed verdict finding that PI’s negligence was a proximate cause. PI, for its part, moved to set the inconsistent verdict aside and for a directed verdict setting its share of fault at zero. Supreme Court chose a third alternative, setting the verdict aside and issuing a directed verdict finding the negligence of both plaintiff and PI to have been proximate causes of the accident. Read More

Was the Client’s Discharge Letter Defamatory?

March 13, 2015
Attorney and Client

Frechtman v Gutterman,

115 A.D.3d 102, 979 N.Y.S.2d 58 [1st Dept., 2014]

When a client discharges his lawyer in a letter, the statements made in the letter are privileged and the lawyer has no claim for defamation, even if the letter makes accusations of malpractice which in other contexts might be actionable.

The statements here included these:

“We do not believe you adequately represented our interest,”
“We believe your failure to act in our best interest in reference to certain matters upon first engaging in the matter may equate to misconduct, malpractice, and negligence,”
“We believe that your future representation on this matter only became necessary, as a result of mistakes and oversights made by you acting as counsel,” and
“[W]e believe that we should not pay for the value of services for which any misconduct or counsel oversight relates to the representation for which fees are sought.”

The lawyer here sued for defamation, and the defendant moved to dismiss for failure to state a cause of action. Supreme Court dismissed the action, and the First Department affirmed. Read More

Appealing a Sua Sponte Order

March 11, 2015
Appellate Practice

Meng v Allen,

117 AD3d 621, 985 N.Y.S.2d 875 [1st Dept., 2014]
There is no appeal as of right from an order made sua sponte, and an appeal taken from such an order is subject to dismissal. That does not mean, however, that there is no avenue of redress. The proper avenue is to move on notice to vacate the sua sponte order, and if the motion is denied to appeal from the denial.

Here, Supreme Court, sua sponte, reinstated an order dismissing the complaint on forum non conveniens grounds. (The sequence of events leading to the reinstatement is not specified in the decision.) The plaintiff failed to move to vacate the sua sponte order, and the attempted appeal from the sua sponte order itself was dismissed as not being from an appealable paper. Read More

Did the Insurance Man Influence the Jury? – How Not to Make an Investigation

March 9, 2015
Trials

Varano v Forba Holdings, LLC,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 01090 [4th Dept., 2015]
This dental malpractice case resulted in a defense verdict. After the jury had been discharged, one juror complained that a member of the trial audience had been “stalking” the jurors during lunch and other recesses in the trial. The juror described the behavior as “creepy.” It turned out that the person was representative of the defendants’ insurer, there to observe the trial on its behalf.

The court interviewed the juror in camera, but failed to notify counsel or obtain their consent. Counsel were not given any opportunity to participate in the interview or to be heard concerning the procedure. The court interviewed the complaining juror only, and not the other jurors. While plaintiff’s motion to set the verdict aside was pending, the court prohibited counsel from contacting any of the jurors. Since the evidence before the court was thereby limited to the statements of the complaining juror, the defendants were, as the Fourth Department noted, precluded from any meaningful opposition to the motion and the result was “a foregone conclusion.” The trial court set the verdict aside on the grounds of improper outside influence and ordered a new trial.

The Fourth Department found the one-sided and unduly limited manner of the court’s investigation to be an abuse of discretion and reversed. On the limited record, the court found itself unable to determine if there in fact had been any influence on the jury which would likely have impacted the verdict. It therefore remitted for a full evidentiary hearing.

Standing to Sue on Behalf of an Incapacitated Person

March 6, 2015
CPLR 1201, Standing

Kay v State of New York,

___ AD3d ___, 2015 NY Slip Op 01784 [2d Dept., 2015]

This was a medical malpractice case in the Court of Claims, brought on behalf of a developmentally disabled adult woman by her father, who along with her mother had been made the co-guardian of her person. Guardianships under both SCPA Article 17-A and Mental Hygiene Law Article 81 have two aspects, guardianship of the property and guardianship of the person. Protection of the ward’s property, including the right to sue and be sued, rests in the property guardian (as the name implies). A guardian of the person, but not of the property, has no standing to sue on behalf of the ward. Therefore, when the defendant moved to dismiss for lack of standing, the motion was properly granted.

CPLR 1201 sets forth the priority of persons entitled to appear in an action on behalf of an infant or  person declared incompetent, or an adult incapable of prosecuting or defending her rights. First on the list is a guardian ad litem, followed by a guardian of the property. Only then comes the priority of a custodial parent of an infant. Since the ward here was an adult, that option was not open to the father. From the opinion, it appears that there was no guardian ad litem. What is not clear from the opinion is whether any other person had been appointed as guardian of the ward’s property. Assuming not, in order to prosecute this suit on the ward’s behalf the father could have sought to be appointed either as guardian of her property or as guardian ad litem.

Note, by the way, that CPLR 1201 uses obsolete terminology regarding the ward. The parents had been appointed under SCPA Article 17-A, and the finding was that their daughter was developmentally disabled, not incompetent. A proceeding under Mental Hygiene Law Article 81 leads to a finding that the subject is incapacitated, not incompetent. The rules regarding standing are the same, however. We may hope that at some point the Legislature will update CPLR 1201 to specifically include the modern variants in appointment of guardians.

Pre-Action Disclosure – The First Requirement is a Valid Cause of Action

March 4, 2015
CPLR 3102, Disclosure

Matter of Woodbridge Structured Funding, LLC v Pissed Consumer & PissedConsumer.com,

___ AD3d ___, 2015 NY Slip Op 01527

If nothing else, respondents here get the award for “party name of the week.”

It seems the respondents run a blog where consumers get to blow off steam about lousy customer service. Most of these complaints are posted anonymously and seem destined never to be read, accomplishing nothing for their authors while discomfiting the objects of their displeasure not a whit. In other words, they are a modern version of shouting into the wind.

The complaint at issue seems to fit that description. Petitioner runs a structured settlement business, apparently buying out structured settlements. The particular complaint, however, involved nothing more serious than the petitioner’s supposed failure to provide the anonymous customer with a $500 gas card, which the customer claimed had been promised in petitioner’s advertising.

You might think that the best way to deal with an angry customer like this, already reduced to posting anonymously on a site like this, would simply be to ignore him, perhaps watching with amused detachment as his complaint withers from lack of attention. Petitioner however, determined that the best way to assuage this angry customer was to sue him for defamation.

In order to do that, petitioner had to find the anonymous customer’s name; and in order to do that petitioner had to move for pre-action disclosure from the respondents, the owners of the blog. That motion, governed by CPLR 3102 (c), is where the matter finally becomes of interest to us.

Supreme Court dismissed the petition. Whereupon, of course, petitioner decided to take this appeal, ensuring that the complaint would finally get wider attention, and would be preserved in the Official Reports.

The motion for pre-action disclosure will lie where the petitioner can demonstrate the existence of a cause of action, but does not know the identity of the prospective defendant. Here, petitioner failed to demonstrate a meritorious claim, in that the anonymous customer’s statements were non-defamatory opinion. Moreover, petitioner failed to show that it had sustained any injury to its reputation. The proceeding was therefore properly dismissed by Supreme Court.

No Work-Product Privilege for an Interview With the Adversary

March 2, 2015
CPLR 3101, Disclosure

Geffner v Mercy Med. Ctr.,

___ AD3d ___, 2015 NY Slip Op 01411 [2nd Dept., 2015]

In this medical malpractice-wrongful death action, the plaintiff interviewed one of the defendants before commencing the action, and recorded the conversation. The plaintiff is apparently an attorney, and appeared pro se in the the Appellate Division, leading to the inference that she is pro se in the action.

Defendants demanded a copy of the recording, to which the plaintiff objected. Supreme Court directed her to provide the copy or be precluded from using it at trial. On appeal, the Appellate Division held that the recording was not entitled to the absolute work product privilege merely because plaintiff made it in her capacity as an attorney. She did not show that failed to show that “the recording contained elements of opinion, analysis, theory, or strategy.” Similarly, there was no showing that it was trial preparation material, to which a conditional privilege applies. The order was therefore affirmed.

The opinion makes no mention of CPLR 3101 (e), which would seem to be the controlling paragraph. The paragraph is simple, direct and unequivocal: “A party may obtain a copy of his own statement.” In Briggs v. Spencerport Road Plaza, Inc., 19 A.D.2d 943, [4th Dept., 1963], the court observed that its purpose was to allow a party access to his own statements without having to prove special circumstances. Read More