New York Law Review

Tag: attorney authority

  • Haberman v. Zoning Board of Appeals, 8 N.Y.3d 269 (2007): Authority of Counsel to Extend Variance Time Limits

    Haberman v. Zoning Board of Appeals, 8 N.Y.3d 269 (2007)

    When a zoning board of appeals has voted to grant a variance, the board’s attorney, acting with actual or apparent authority, may agree to extend the time to build the improvements permitted by the variance without requiring a second board meeting and vote.

    Summary

    Sinclair Haberman obtained a variance from the Long Beach Zoning Board of Appeals (ZBA) to construct a residential complex. A subsequent dispute was resolved by a stipulation that required Haberman to obtain new variances with time limits for applying for building permits. Haberman paid the city $200,000 for public improvements, which the city failed to complete on time. Haberman agreed to extend the city’s deadline in exchange for tolling the time limits on his building permits. Years later, the ZBA revoked Haberman’s building permit, arguing the extension required a new ZBA vote. The Court of Appeals held that the ZBA’s attorney’s agreement to extend the time was binding, as the attorney had at least apparent authority and a new ZBA vote was not required.

    Facts

    Sinclair Haberman sought a variance to build a four-tower residential condominium complex. The ZBA granted the variance, but a dispute arose after one tower was built. A 1989 stipulation settled Haberman’s lawsuit against the City and ZBA, requiring him to apply for new variances subject to time limits for building permit applications. Haberman also agreed to pay $200,000 to the City for public improvements, including underground utility lines, to be completed by the City within two years. The City failed to meet the deadline, and Haberman agreed to extend the deadline, contingent upon tolling the time limits on his building permits.

    Procedural History

    Haberman applied for and received new variances in 1989. The City failed to meet the deadline for the utility lines. In 1992, Haberman agreed to extend the City’s deadline in exchange for tolling his time to apply for building permits, memorialized in a letter agreement signed by the City’s Corporation Counsel, representing the ZBA. In 2002, Haberman applied for a building permit, which the Building Department issued in 2003. The ZBA then revoked the permit, arguing Haberman missed the 1989 stipulation deadline and the extension was invalid. Haberman sued to annul the revocation. The Supreme Court annulled the ZBA’s action, but the Appellate Division reversed, finding the extension unenforceable. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the ZBA is bound by its attorney’s agreement to extend the time to apply for building permits, or whether such an extension requires a new vote by the ZBA.

    Holding

    No, the ZBA is bound by its attorney’s agreement, because the attorney had at least apparent authority to act on the ZBA’s behalf and a new ZBA vote was not required for the extension.

    Court’s Reasoning

    The Court of Appeals reversed the Appellate Division, holding that the Corporation Counsel’s agreement to extend Haberman’s time to apply for building permits was binding on the ZBA. The Court reasoned that parties are generally bound by their attorneys’ agreements. While granting a variance requires ZBA action, extending the duration of a variance does not require the same formality. Citing Matter of New York Life Ins. Co. v Galvin, 35 NY2d 52, 59 (1974), the Court noted that an extension does not require a new application, public notice, or a hearing. The court found no basis to require a ZBA vote for an extension. The agreement was in writing, negotiated by counsel, and approved by the court. The City received a benefit (extension of time for utility work) in exchange for the extension granted to Haberman. The Corporation Counsel, as the ZBA’s attorney, had at least apparent authority. The Court emphasized the unfairness of invalidating the agreement years later due to a procedural requirement not mandated by statute or precedent. The court stated, “It would be unfair to hold, many years after the event, that the lawyer’s agreement was a nullity because the parties did not follow a procedure that no statute and no precedent required.”

  • People v. Colon, 88 N.Y.2d 824 (1996): Attorney Authority Over Jury Selection Tactics

    People v. Colon, 88 N.Y.2d 824 (1996)

    A defendant’s attorney, not the defendant personally, has the authority to make tactical decisions during a trial, including the selection of jurors.

    Summary

    Colon was convicted of robbery. During jury selection, after 11 jurors were chosen, the trial court noted that a new panel would be needed for one more juror. Defense counsel withdrew a peremptory challenge to seat the final juror, despite Colon’s desire to empanel a different, previously challenged juror. Colon did not request new counsel. The Appellate Division reversed, finding it was error to seat the juror over Colon’s objection. The New York Court of Appeals reversed, holding that jury selection tactics are the attorney’s domain, not the defendant’s, and the defendant’s ineffective assistance claim lacked merit.

    Facts

    At the end of the second round of jury selection, eleven jurors had been selected.
    The trial court indicated that a new panel would be necessary to select the twelfth juror.
    Defense counsel withdrew a peremptory challenge to seat a juror to avoid a new panel.
    The defendant wanted a different, previously challenged juror empaneled.
    The defense counsel informed the court that the selected juror was acceptable.
    The defendant did not request a change of counsel.

    Procedural History

    Defendant was convicted of first-degree robbery.
    The Appellate Division reversed the conviction, holding that the trial court erred by seating a previously challenged juror over the defendant’s express objection.
    The New York Court of Appeals reversed the Appellate Division’s order.

    Issue(s)

    Whether the trial court erred in accepting defense counsel’s decision to seat a previously challenged juror over the defendant’s objection.
    Whether the defendant was denied effective assistance of counsel when his attorney made a tactical decision regarding jury selection against his wishes.

    Holding

    No, because the selection of particular jurors falls within the category of tactical decisions entrusted to counsel, and defendants do not retain a personal veto power over counsel’s exercise of professional judgments.
    No, because defense counsel’s tactical decision did not create an adverse relationship between attorney and client, and the defendant did not show that his attorney’s representation was undermined.

    Court’s Reasoning

    The Court of Appeals reasoned that while a defendant retains authority over fundamental decisions like pleading guilty, waiving a jury trial, testifying, or appealing, tactical decisions regarding the conduct of the trial are entrusted to the attorney. The Court stated, “With respect to strategic and tactical decisions concerning the conduct of trials, by contrast, defendants are deemed to repose decision-making authority in their lawyers.” Jury selection falls into the latter category.

    The Court cited People v. Sprowal, 84 N.Y.2d 113, 119, for the principle that defendants do not have a personal veto over their counsel’s professional judgment in tactical matters. The Court also noted the ABA Standards for Criminal Justice, Defense Function, Standard 4-5.2[b] (3d ed. 1993). Since Colon’s counsel made a tactical decision, the trial court did not err in accepting it. Furthermore, the Court found that the defendant had waived any argument that the procedure violated CPL 270.25(1) because both Colon and his defense counsel consented to withdrawing peremptory challenges.

    Regarding ineffective assistance of counsel, the Court found no merit because the attorney’s tactical decision did not create an adverse relationship with the client. The Court cited People v. Petrovich, 87 N.Y.2d 961, 963, stating the defendant failed to show how his attorney’s representation was undermined.

  • People v. Ferguson, 67 N.Y.2d 383 (1986): Attorney Consent to Mistrial Binding on Absent Defendant

    67 N.Y.2d 383 (1986)

    An attorney’s consent to a mistrial, whether express or implied, is binding on the defendant, even if the defendant is absent and has not personally consented, as the decision to consent to a mistrial falls within the scope of the attorney’s authority.

    Summary

    Edward Ferguson was convicted of second-degree murder after a retrial. His first trial ended in a mistrial declared while he was absent. Ferguson appealed, arguing double jeopardy, claiming his lawyer’s consent to the mistrial was invalid without his presence and personal consent. The New York Court of Appeals affirmed the conviction, holding that defense counsel’s implied consent to the mistrial was binding on the defendant, even in his absence, and that personal consent from the defendant was not constitutionally required. The court reasoned the decision to consent to a mistrial is a tactical one properly belonging to the attorney.

    Facts

    Edward Ferguson was charged with second-degree murder after fatally shooting Ozell Jackson. During the fourth day of the trial, a juror was involved in an automobile accident and hospitalized. The trial judge, after a conference with attorneys (not recorded), indicated she was considering a mistrial due to the lack of alternate jurors. Ferguson was absent when the judge announced to the remaining jurors that a mistrial would be declared. Defense counsel waived Ferguson’s appearance and remained silent as the judge dismissed the jury.

    Procedural History

    The first trial ended in a mistrial. Prior to the second trial, Ferguson moved to dismiss the indictment, claiming double jeopardy, arguing his attorney had not given unqualified consent. The trial court denied the motion. Ferguson was convicted in the second trial. The Appellate Division affirmed the conviction, finding implied consent from defense counsel. The dissenting justices disagreed with the finding of implied consent and argued that the defendant’s presence was necessary for the attorney’s consent to be valid. Ferguson appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether defense counsel impliedly consented to the mistrial.
    2. Whether defense counsel’s consent to a mistrial is effective only if the defendant was present at the time such consent was given.

    Holding

    1. Yes, because defense counsel’s statement in chambers (“the Judge must do what she feels must be done”) and silence when the court declared a mistrial to the jury provided support for the lower courts’ finding of implied consent.
    2. No, because the decision to consent to a mistrial is a tactical one that falls within the scope of the attorney’s authority, and thus the defendant’s personal consent or presence is not constitutionally required.

    Court’s Reasoning

    The Court of Appeals addressed whether the defendant’s right against double jeopardy was violated. It acknowledged that retrial after a mistrial is barred unless there was manifest necessity or the defendant consented. The court found manifest necessity lacking because the judge did not adequately explore alternatives to a mistrial, such as a brief continuance. Therefore, the permissibility of the retrial hinged on the defendant’s consent. The court found implied consent based on the attorney’s statement in chambers and silence in court. The court then addressed whether the defendant’s personal consent was required. The court stated that “consent to a mistrial allows a retrial regardless of whether defendant knowingly waived the right not to be prosecuted twice”. The court aligned itself with numerous jurisdictions that hold that “there is no requirement that the Trial Judge obtain the personal consent of the defendant to a mistrial or scrutinize whether the attorney has consulted with the defendant.” The court reasoned that a defendant with counsel relegates control of much of the case to the lawyer, except for certain fundamental decisions (e.g., pleading guilty, waiving a jury, testifying, or appealing). The decision to consent to a mistrial does not fall within this limited category because it requires an evaluation of the case, analysis of evidence, and consideration of potential harm and benefits, making it an appropriate decision for the lawyer. The court noted that while it would be preferable for the lawyer to consult with the client, it held that “for purposes of double jeopardy there was consent to the mistrial.”

  • Hallock v. State, 64 N.Y.2d 224 (1984): Attorney’s Apparent Authority to Settle a Case

    Hallock v. State, 64 N.Y.2d 224 (1984)

    An attorney’s apparent authority, stemming from the client’s conduct, can bind the client to a settlement agreement made in open court, even if the attorney lacked actual authority.

    Summary

    Hallock and Phillips sued the State over a land appropriation. During a pretrial conference, their attorney, Quartararo, agreed to a settlement in open court involving reconveyance of the land. Phillips was present but silent. Hallock, absent due to illness, later objected, claiming Quartararo lacked authority to settle on those terms. The Court of Appeals held that Phillips was bound by his silence and Hallock was bound by Quartararo’s apparent authority. The court emphasized that open court stipulations are favored and essential to efficient dispute resolution, and absent fraud, collusion, mistake, or accident, a party is bound by their attorney’s actions when the attorney possesses apparent authority.

    Facts

    In 1968, Hallock and Phillips bought land near a proposed dam site. In 1969, the State appropriated the land. Hallock and Phillips sued, challenging the necessity of taking a full fee interest. A pretrial conference was held on April 22, 1975. Hallock was absent; Phillips was present with his other attorney, Whitbeck. Quartararo, representing both plaintiffs, stipulated to a settlement in open court: reconveyance of the land in exchange for keeping the advance payment. Phillips and Whitbeck remained silent during this process. Hallock later objected, claiming Quartararo lacked authority.

    Procedural History

    The trial court initially vacated the stipulation. The Appellate Division reversed, requiring a plenary action to set aside the settlement. After trial in the plenary action, the trial court ordered specific performance of the settlement. The Appellate Division reversed, holding that Quartararo lacked authority. The Court of Appeals reversed the Appellate Division and reinstated the trial court’s judgment ordering specific performance.

    Issue(s)

    1. Whether Phillips was bound by the settlement agreement given his presence and silence during the stipulation in open court.

    2. Whether Hallock was bound by the settlement agreement, even if Quartararo lacked actual authority, due to Quartararo’s apparent authority.

    Holding

    1. Yes, Phillips was bound because he acquiesced in the settlement by remaining silent during the proceedings.

    2. Yes, Hallock was bound because Quartararo had apparent authority to bind him to the settlement.

    Court’s Reasoning

    The Court emphasized the importance of enforcing stipulations of settlement made in open court. It noted that such stipulations are favored and are not lightly cast aside. The court stated, “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation.” The court found no such cause here.

    Regarding Phillips, the court held that his presence and silence during the stipulation constituted acquiescence and consent to the settlement. Regarding Hallock, the court analyzed the concept of apparent authority. The Court articulated that “Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction.”

    The court reasoned that Hallock, by allowing Quartararo to represent him throughout the litigation and to appear at the pretrial conference, clothed Quartararo with apparent authority. The court highlighted 22 NYCRR 861.17, which requires attorneys attending pretrial conferences to have authority to enter into binding settlements. Therefore, the defendants reasonably relied on Quartararo’s apparent authority. The court also noted that discontinuing the litigation and removing the case from the trial calendar constituted detrimental reliance by the defendants. The Court concluded that plaintiffs are relegated to seeking relief from their former attorney for any damages caused by his conduct.

  • Judson v. Gray, 11 N.Y. 408 (1854): Attorney’s Authority to Bind Client for Litigation Expenses

    Judson v. Gray, 11 N.Y. 408 (1854)

    An attorney of record has the presumed authority to bind their client for necessary expenses incurred during litigation, such as printing costs, unless the attorney explicitly disclaims responsibility.

    Summary

    A law printer sought payment from executors for printing the record of an appeal in a negligence action. The executors argued that the insurance company, which managed the litigation and directed the appeal, should be responsible. The court held that the printer could rely on the presumption that the attorney of record had the authority to order the printing on behalf of their client, the party of record (the executors). Since the attorney did not disclaim responsibility and the insurance company’s role was not disclosed to the printer, the executors were liable for the printing costs. This case affirms the general rule that attorneys can bind their clients for necessary litigation expenses.

    Facts

    A law printer (appellant) was hired by the attorney of record for the executors of a decedent’s estate (respondents) to print the record for an appeal. The appeal stemmed from a negligence action originally brought by the decedent, then continued by the executors. An insurance company, which had insured the decedent, managed the litigation, retained the attorneys, and instructed them to pursue the appeal without consulting the executors. The printer was not informed that the insurance company was managing the litigation or that it was the true party in interest. The attorney did not personally guarantee payment for the printing services.

    Procedural History

    The case originated in the Surrogate’s Court, Kings County, where the printer sought payment from the executors for the printing costs. The executors objected, arguing the insurance company was responsible. The lower court presumably ruled against the printer (this isn’t explicitly stated, but implied by the appeal). The printer appealed to a higher court (likely the Appellate Division), which was then appealed to the New York Court of Appeals.

    Issue(s)

    Whether an attorney of record has the authority to bind their client (the party of record) for the costs of printing an appeal record, when the attorney did not disclaim responsibility and the printer was unaware of a third party (the insurance company) controlling the litigation.

    Holding

    Yes, because the printer was entitled to rely on the presumption that the attorney of record had the authority to order printing for the appeal on behalf of their client, the party of record. The attorney did not disclaim responsibility, and the insurance company’s involvement was not disclosed to the printer.

    Court’s Reasoning

    The court relied on the established principle of agency law, stating that “the party of record in the action in which the printing is furnished is a disclosed principal and the attorney an agent for such a principal.” The court emphasized the printer’s right to rely on the attorney’s presumed authority, especially since the insurance company’s role was not disclosed. The court cited prior cases to support its holding, stating that the rule extends specifically to printing costs for appeals. The Court relied on precedent cases like Bonynge v. Field (81 N. Y. 159) and Reporter Co. v. Murphy (283 App. Div. 1133).