Appellate Division Review: November 2020

We report here on the highlights from the third quarter of 2020.

First Department

Revised Limited Partnership Act. Is an unsigned amendment of a limited partnership agreement altering the allocation of distributions and tax losses enforceable? Expressing surprise that “this presents an issue of first impression,” the First Department in A&F Hamilton Hgts. Cluster v. Urban Green Mgt., 186 A.D.3d 409 (1st Dept. Aug. 6, 2020), held such an amendment ineffective.

After the partners’ relationship soured, one faction claimed the partnership agreement had been amended in connection with a refinancing to change, among other things, allocations of capital, income, and loss. However, a signed version of the amendment was never produced, and the faction sought to prove amendment though evidence of the parties’ conduct. Supreme Court rejected such an approach and entered summary judgment finding the original agreement controlled.

The First Department armed. The court explained that the default rule under New York’s Revised Limited Partnership Act (RLPA), which applied here, required “written consent of each partner adversely affected” by a change in the allocation of distributions and tax losses. The amendment was thus ineffective. While acknowledging that one Fourth Department case permitted modification of a limited partnership agreement by conduct, the provision at issue there was not subject to the RLPA’s requirement of written consent by the partners.

Attorney Fees. Under 22 NYCRR 137, an attorney is required to notify clients of their right to arbitrate a fee dispute between $1,000 and $50,000 before the Joint Committee on Fee Disputes and Conciliation. The Committee, however, cannot arbitrate such a dispute if no legal services have been performed during the two years prior to the claim. If the attorney does not give notice of this arbitration right within two years after ceasing legal services, does the attorney waive the right to commence a court action for unpaid legal fees if the client seeks to arbitrate? The First Department answered this novel question in the affirmative in Filemyr v. Hall, 2020 N.Y. Slip Op. 04238 (1st Dept. July 23, 2020).

Plaintiff attorney sent the clients a notice of right to arbitrate three years after he stopped providing legal services. One of the clients sought to arbitrate before the Committee, which denied arbitration because it was submitted one year too late. After the lawyer sued to recover unpaid legal fees, Supreme Court denied the lawyer’s motion to dismiss the affirmative defenses of laches, waiver, and unclean hands, and granted the clients’ cross-motion to dismiss the complaint.

In a unanimous opinion by Justice Troy K. Webber, the First Department armed. The court explained that, “[w]here, as in this case, an attorney, through their own delay deprives the client of th[e] right [to timely arbitrate], the attorney cannot in good faith claim compliance with the procedures of Part 137.” The court concluded that the violation of Part 137 “constituted unethical conduct sufficient to constitute unclean hands,” supported the defense of laches, and resulted in a waiver of the lawyer’s right to initiate an action in court.

Second Department

Evidence. Is a party admission in an uncertified police report admissible? In Yassin v. Blackman, 2020 N.Y. Slip Op. 05090 (2d Dept. Sept. 23, 2020), the Second Department clarified its prior decisions and answered in the negative.

Plaintiff sued after being injured in an automobile accident. In his motion for summary judgment, plaintiff relied on a statement in an uncertified police report that the driver of defendants’ vehicle “was attempting to pass [the plaintiff’s vehicle]” when he “side swip[ed] [the plaintiff’s vehicle].” In opposition, the driver submitted an affidavit stating plaintiff had cut him o. The trial court granted plaintiff’s motion as to liability, and defendants appealed on the ground that the driver’s affidavit raised a triable question of fact.

In a unanimous opinion by Justice Francesca E. Connolly, the Second Department reversed. One line of the court’s prior decisions held that an uncertified police report constitutes inadmissible hearsay because its foundation as a government record was not established. However, another line of cases held that a party’s admission in such a report is admissible against that party. The court resolved this tension by holding that a statement recorded in a police report involves two levels of hearsay and that the proponent must establish a hearsay exception for both the report and the statement. “[A] party’s admission contained within a police accident report may not be bootstrapped into evidence if a proper foundation for the admissibility of the report itself has not been laid.”

Criminal Procedure Law. In People v. Taylor, 2020 N.Y. Slip Op. 04790 (2d Dept. Aug. 26, 2020), the Second Department took up the “rare opportunity” to address whether a trial court, in ruling on a CPL 330.30(1) motion to set aside a verdict on one count as unsupported by legally sufficient evidence, may consider a jury’s factually inconsistent acquittal on another count.

Defendant was found guilty on one count of endangering the welfare of a child but acquitted on charges of criminal sex act and rape. Defendant then moved to set aside the verdict pursuant to CPL 330.30(1) on the ground that the jury’s acquittals demonstrated that the evidence was legally insufficient to show that he had engaged in a “continuous course of sexual conduct,” as required to support the guilty verdict. The trial court granted defendant’s motion.

In an opinion by Justice Cheryl E. Chambers, the Second Department reversed. The court explained that a CPL 330.30(1) motion may only be granted when a ground appearing in the record “would require a reversal or modification of the judgment” if raised on appeal of a judgment of conviction. The court recognized that, on appeal of a judgment of conviction where the court has a “unique power of factual review” and the “discretionary authority” to address unpreserved errors in the interest of justice, case law supports consideration of a jury’s acquittal on one count in reviewing the record to determine if a factually inconsistent conviction on another count is supported by legally sufficient evidence. Here, however, a reversal or modification of the judgment was not required, particularly where defendant failed to preserve his legal insufficiency claim.

Third Department

Family Court Act. If you see something, say something, the Third Department instructed judges in Burnett v. Andrews-Dyke, 185 A.D.3d 1196 (3d Dept. July 9, 2020).

The father led a petition alleging the mother willfully violated a child support order. When the mother failed to appear, the Support Magistrate entered a default order recommending three months’ incarceration, and the matter was referred to Family Court for confirmation. At the confirmation hearing, at which Family Court had granted the mother’s request to appear telephonically, Family Court noted the mother was not at a location where a notary could administer an oath but nevertheless permitted her to be questioned. Family Court later issued its decision, finding the mother’s testimony was not competent because it was unsworn and ordering the mother incarcerated.

In an opinion by Justice John C. Egan Jr., the Third Department reversed and remanded for a new hearing. While Family Court correctly appreciated the significance of the lack of a notary, it should have taken corrective action and administered the oath itself if necessary. “[H]aving permitted the mother to give unsworn testimony telephonically, it was error for Family Court to thereafter sua sponte rule … that it would not credit the mother’s testimony given that it was not sworn.”

Fourth Department

Evidence. In People v. Horn, 2020 N.Y. Slip Op. 04712 (Aug. 20, 2020), the Fourth Department addressed the propriety of a prosecutor playing for the jury a scene from a violent thriller movie. Defendant was convicted of murder for the violent death of a drug dealer whose body was found in a cupboard in an abandoned mansion. During trial, County Court permitted the prosecutor to play for the jury a scene from the lm The Boondock Saints. That scene, set in a courtroom, begins with the protagonists threatening everyone (jurors included), then declaring themselves vigilantes and holding their guns to the back of the defendant’s head while he kneels execution-style, and ends in a hail of gunfire. The prosecutor played the scene, from which the real-life defendant quoted shortly after the murder, to rebut defendant’s claim that his participation in the murder was coerced.

The Fourth Department held County Court abused its discretion. While the movie quote was relevant, “[p]laying the scene served no purpose other than to prejudice the jury against defendant.” The violence directed against the movie jury likely affected the real jury’s objectivity, and the message that justice can only be accomplished through violence “degrades the criminal justice system.” Alas, the Fourth Department concluded that the error was harmless because the evidence against defendant was “overwhelming.”

Reprinted with permission from the November 7, 2020 edition of the New York Law Journal ©2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com, or visit almreprints.com.