By: Daily Record Staff//July 20, 2012
By: Daily Record Staff//July 20, 2012//
Appellate Division, Fourth Department
Attorney Consultation Defense — Surprise
Nichols v. Hack
Appealed from Supreme Court, Monroe County
Background: The plaintiff appealed from a judgment after a jury returned a verdict in favor of the defendant. The plaintiff alleged that the court erred by allowing testimony that the defendant consulted with an attorney prior to filing a harassment charge against the plaintiff. The plaintiff also challenged the jury charge addressing reliance on the advice of counsel in the context of a malicious prosecution action.
Ruling: The Appellate Division affirmed. The court held that there was evidence on the record that the plaintiff knew that the defendant had conferred with an attorney prior to filing a harassment complaint and that there was no chance that the failure to plead reliance on the advice of counsel took the plaintiff by surprise.
Nira T. Kermisch for the plaintiff-appellant; Pamela S.C. Reynolds of Littler Mendelson PC for the defendant-respondent