The Appellate Division Adopts New Uniform Rules of Practice Effective September 17, 2018

Under New York’s unique court structure, the Appellate Division is supposed to be a single statewide intermediate appellate court, broken into four different departments, where most appeals from the decisions of the trial court are finally resolved. But up until now, the four departments have functioned largely independently with rules of practice and customs unique to each.

Come September 17, 2018, however, all of the Departments of the Appellate Division will adopt a new set of uniform rules that will govern appellate practice in New York’s intermediate appellate courts throughout the State. Whether you’re before the First Department in Manhattan, the Second Department in Brooklyn, the Third Department in Albany, or the Fourth Department in Rochester, the rules will finally all be the same (for the most part).  That uniformity will make appellate practice so much better.

Here’s a quick look at some of the rules that are changing.

Perfecting Appeals

Before the new uniform rules were adopted, the Appellate Division departments had different time limits before an appeal would be dismissed as abandoned. In the First, Third, and Fourth Departments, the rule was if you don’t perfect your appeal within 9 months after serving the notice of appeal, the appeal would be dismissed as abandoned. In the Second Department, however, it was only 6 months.  The new uniform rules now provide that 6 months is the general rule.  The parties can, however, stipulate to extend the perfection date up to 60 days, and the appellant can thereafter apply by letter to extend the date another 30 days.  So, if the courts grant the extension requests, the date to perfect an appeal would be back to 9 months.

Briefs

Under the new uniform rules, all of the Appellate Division departments have adopted maximum word counts for briefs (14,000 for appellant’s and respondent’s briefs, and 7,000 for reply briefs). Before, the Third and Fourth Departments had maintained page limits, while the First and Second Department had moved to word counts. The uniform rules also now require briefs to be set in 14-point font (12-point for footnotes), which is new for many of the Departments.  And with the new word limits and font requirements, the last page of each brief must contain a certification telling the Court the name of the typeface, point size, line spacing, and word count to ensure compliance with the new rules.

Best of all, by adopting the uniform rules, the Fourth Department has done away with its (annoying) “no footnotes of any kind in briefs” rule! It was about time.

Challenging Constitutionality of State Statute

A new provision in the uniform rules gives the Attorney General the right to intervene in any case challenging the constitutionality of a state statute to which the State is not already a party. To allow the Attorney General the opportunity to make the decision whether to intervene, the party raising the constitutionality issue in such a case will be required to serve its brief on the Attorney General. That’s a logical extension of CPLR 1012, which gives the Attorney General the same right in proceedings before the trial courts.

Oral Argument

If your brief doesn’t specifically state that you are requesting oral argument of the appeal, and request a specific time allotment, you will be deemed to have waived oral argument and to have submitted the appeal on the briefs. This isn’t really a new requirement, it’s just more clearly stated in the new uniform rules.  The uniform rules also preserve the rules in the First and Third Departments that rebuttal time will be permitted if requested by the appellant’s counsel at the beginning of argument.  No such luck in the Second and Fourth Departments. Both have kept their previous rules prohibiting rebuttal time. Too bad.

Local Rules Preserved

Ok, ok. So, some of the unique local practices of the Appellate Division departments have been preserved in the local rules of each department.  Like the First Department’s rule that an appeal has to be placed on the calendar by the appellate at least 57 days before the first day of the term for which the appeal has been set.  And the Second Department’s rule that rebuttal isn’t available during oral argument, as I mentioned. The Third Department’s local rules deal mostly with the unemployment insurance, workers’ compensation, and Sex Offender Registration Act appeals that are a unique part of the Court’s docket. The Fourth Department did its best to keep its brief cover color requirements (blue for the appellant, red for the respondent, and gray for the reply brief) through the change to e-filing.

All in all, adoption of a new set of uniform rules for the Appellate Division is yet another step in the right direction, after the courts earlier this year adopted mandatory e-filing for many appeals and then recently expanded the e-filing program.  The new uniform rules will make it easier to practice in New York’s appellate courts for attorneys and clients alike.  Anything that makes practice better is a good thing in my book.

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Court of Appeals Holds Hearsay Statements from Sexual Assault Victim May be Considered to Support College Disciplinary Decision

When a sexual assault occurs on a SUNY campus, the victim shouldn’t have to suffer through the assault twice. The victim has the right to decide not to participate in any disciplinary hearings held by the SUNY disciplinary board, and to instead submit a written or other hearsay statement telling his or her side of the story. And that’s exactly what happened in Matter of Haug v State Univ. of N.Y. at Potsdam (No. 102). The sexual assault victim didn’t want to participate in the SUNY disciplinary hearing against the offender, but instead submitted a written statement.  The victim’s statement was consistent with what she had told the SUNY investigator and a SUNY administrator, and following the hearing, SUNY expelled the offender.

In a surprising reversal, however , the Third Department annulled SUNY’s expulsion determination as unsupported by substantial evidence in the record.  The SUNY Student Code required affirmative consent to sex, which it was undisputed that the student never received, but the Third Department majority nevertheless said that the victim’s hearsay account of the incident was insufficient to meet the substantial evidence standard. Hearsay evidence couldn’t be considered in the substantial evidence determination, the Court held. Instead, the Court held, the complainant’s act of removing her shirt when the student offered sex was enough to show consent in this situation. The Court, therefore, vacated the student’s expulsion.

In a cogent dissent at the Appellate Division, two Justices took the majority to task for, among other things, substituting the Court’s own judgment of the facts for the SUNY disciplinary board that heard the testimony at the disciplinary proceeding.  The dissent emphasizes that the complainant’s story that she “froze” upon the student’s advances was consistent when she told it both to the SUNY investigator and to an administrator.  It did not have any of the hallmarks of unreliability that have lead to the general rule that hearsay evidence, on its own, isn’t enough to constitute substantial evidence.  Moreover, the only reason why the complainant’s account was technically hearsay, the dissent pointed out, was because she didn’t want to participate in disciplinary proceedings.  Her decision to invoke that right doesn’t undermine the credibility of her account of the assault.

SUNY appealed, and the Court of Appeals understandably reversed. In a short memorandum opinion, joined by 6 of the 7 Judges, the Court held that the victim’s hearsay statement could be considered when deciding whether substantial evidence, a very low standard, existed in the administrative record to support SUNY’s expulsion decision.

The Court, adopting the Appellate Division dissent’s view, also took the Appellate Division majority to task for substituting its view of the facts for the SUNY disciplinary board’s findings. “[I]t was the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations,” the Court held. And thus, it was not for the Appellate Division to reweigh that evidence on appeal.

By holding that a sexual assault victim’s hearsay statements may be considered both at the administrative level and in a subsequent challenge to a disciplinary decision, the Court of Appeals has preserved the victim’s right to choose whether or not to participate in the disciplinary proceedings. That’s undoubtedly, to me at least, the right result. If the victim is unwilling or unable to relive the assault in the context of a subsequent disciplinary proceeding, he or she shouldn’t have to.  Holding otherwise would have forced the victim into a sort of Hobson’s choice: relive the sexual assault in live testimony at the hearing and be cross-examined, or don’t participate at all. The Court of Appeals’ holding in Haug, therefore, will continue to allow victims of sexual assault to decide whether or not to participate in a disciplinary hearing, free from considerations of how that decision will impact the disciplinary process.

The Court of Appeals’ opinion is here.

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The Appellate Division August, September, and October 2017 Leave Grants

The Court of Appeals docket is also filled with cases that the Appellate Division found interesting enough to grant leave on its own. It’s a unique aspect of New York’s appellate jurisdiction that allows the intermediate appellate courts to have a say in what cases the Court of Appeals hears. For a more in depth look at the process through which the Appellate Division grants leave to appeal, you can read about it here.

Here’s a quick look at the Appellate Division’s leave grants from the 2017-18 term.

August Appellate Division Leave Grants

Nicke v Schwartzapfel Partners P.C., 148 AD3d 1168 (2d Dept 2017)

Question presented: Whether plaintiffs, chapter 13 bankruptcy debtors, had capacity to maintain legal malpractice action against a law firm that represented the bankruptcy trustee in a personal injury action asserted on behalf of one of the plaintiffs, and whether collateral estoppel barred the plaintiff from commencing the legal malpractice action.

Supreme Court, Nassau County, granted those branches of defendants’ separate motions to dismiss the complaint insofar as asserted against each of them. The Appellate Division, Second Department reversed and denied the motions, and then granted leave to appeal.

Schnapp v Miller’s Launch, Inc., 150 AD3d 32 (1st Dept 2017)

Question presented: In a case where the Plaintiff, a maritime surveyor, was injured while attempting to board a vessel by jumping from the bulkhead to the vessel’s deck, whether questions of fact exist as to whether defendant vessel owner violated the turnover duty and duty to intervene under the Longshore and Harbor Workers’ Compensation Act.

Supreme Court, New York County, granted the defendant’s motion for summary judgment dismissing the complaint. The Appellate Division, First Department reversed and denied the motion, and then granted leave to appeal.

Matter of New York Civ. Liberties Union v New York City Police Dept., 148 AD3d 642 (1st Dept 2017)

Question presented: Whether Civil Rights Law § 50-a exempts from disclosure written disciplinary decisions of the New York City Police Department, despite that the disciplinary trials are open to the public and redaction of identifying information is available, and whether respondents’ previous disclosure of other redacted records waives any objection to redacting the subject disciplinary decisions.

Supreme Court, New York County, adhering to orders of the same court (10/16/12, 7/29/14 and 10/2/14), granted, to a limited extent, the petition brought pursuant to CPLR article 78 seeking to compel respondents to disclose certain records pursuant to the Freedom of Information Law. The Appellate Division, First Department reversed, denied the petition, and dismissed the proceeding. The Court then granted leave to appeal.

September Appellate Division Leave Grants

Lobello v New York Central Mutual Fire Insurance Co., 152 AD3d 1206 (4th Dept 2017)

Question presented: Whether the two-year limitations period set forth in the homeowner’s insurance policy at issue ran from the date of burglary or from the date the insurer denied coverage for the loss

Supreme Court, Oswego County, among other things, granted in part defendant’s cross motion for summary judgment. The Appellate Division, Fourth Department modified by granting that part of plaintiff’s motion seeking to dismiss defendant’s affirmative defense of expiration of the two-year limitations period set forth in the policy, denying defendant’s cross motion in its entirety, and reinstating the complaint with respect to the loss of 9/29/09, and as so modified, affirmed.

Erie Insurance Exchange v J.M. Pereira & Sons, Inc., 151 AD3d 1879 (4th Dept 2017)

Question presented: Whether summary judgment was properly denied to plaintiff because the plaintiff failed to establish, as a matter of law, that a certain exception to Exclusion G in the subject business catastrophe liability policy does not apply.

Supreme Court, Monroe County, insofar as appealed from, denied plaintiff’s motion for summary judgment. The Appellate Division, Fourth Department affirmed.

October Appellate Division Leave Grants

Andrew Carothers, M.D., P.C. v Progressive Insurance Co., 150 AD3d 192 (2d Dept 2017)

Questions presented: What are the elements necessary to establish the defense of fraudulent incorporation recognized in State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]) where a payment was withheld by the insurance carrier for medical services provided by a professional corporation which has been “fraudulently incorporated” to allow nonphysicians to share in its ownership and control, and whether an adverse inference is available for nonparties’ invocation of Fifth Amendment privilege against self-incrimination.

Civil Court of the City of New York, Richmond County, upon a jury verdict, found in favor of defendant and against plaintiff, dismissing the complaint. The Appellate Term affirmed, and the Appellate Division, Second Department affirmed.

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The Court of Appeals April-May and June 2018 Session and Decision Days Leave Grants

At the end of the term, it’s not abnormal to see the Court of Appeals tend to grant more cases to fill up its argument docket for the fall. During the 2016-2017 term, the Court granted 15 of its 27 total leave grants during the April-May and June sessions, including June Decision Days. More than half from the last three months of the term. This year is similar, with 8 leave grants out of 25 total coming during the April-May and June sessions, plus decision days.

What’s most notable about all of the leave grants this year, however, is the Court’s trend toward granting leave in cases from the Third and Fourth Departments.  Last year, only 7 of the Court’s 27 leave grants came from the upstate Departments. This year, in contrast, 15 cases were granted from the Third and Fourth Departments, compared to 10 from the First and Second. One year is far too small of a sample size to be meaningful, but it will be interesting to watch the grants for the 2018-19 term to see if the Court tends to favor granting leave to cases in the upstate Departments and leaving the First and Second Departments to grant leave on their own.

Here’s a quick rundown of the 8 leave grants from the April-May and June Sessions, and June Decision Days.

April-May Session Leave Grants

Fasolas v Bobcat of N.Y., Inc., 150 AD3d 147 (2d Dept 2017)

Question presented: Whether an exception to strict products liability as set forth in Scarangella v Thomas Built Buses (93 NY2d 655 [1999]) is applicable where the allegedly defectively designed product was sold without optional safety equipment to a rental company that planned to rent the product to the general public.

Supreme Court, Queens County, denied defendants’ motions pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint as to them, and pursuant to CPLR 4404(a) to set aside so much of the jury verdict on the issue of liability finding each of the two defendant Bobcat entities 25% at fault in the happening of the accident and defendant Port Jefferson Rental Center d/b/a Taylor Rental Center 50% at fault in the happening of the accident, and for judgment as a matter of law or, in the alternative, to set aside that portion of the jury verdict on the issue of liability in the interest of justice and for a new trial or, in the alternative, to set aside, as excessive, the jury verdict on the issue of damages awarding plaintiff the principal sum of $1,000,000 for conscious pain and suffering (4/18/13 order); and thereafter, entered a judgment in favor of plaintiff and against defendants upon the jury verdict on the issue of liability and damages, and upon the 4/8/13 order (4/22/13 order). The Appellate Division, Second Department affirmed and dismissed the appeal and cross appeal from the order denying the parties’ CPLR 4401 and 4404 motions after trial.

Matter of Larchmont Pancake House v Board of Assessors, 153 AD3d 521 (2d Dept 2017)

Questions presented: Whether, in a proceeding pursuant to Real Property Tax Law article 7 brought by a petitioner who did not own the subject property, to review real property tax assessments, the petitioner is an aggrieved party within the meaning of the Real Property Tax Law, and whether the petitioner failed to satisfy condition precedent set forth in RPTL 524(3) because grievance was not filed by property owner, thereby depriving court of subject matter jurisdiction to review assessments.

Supreme Court, Westchester County, denied the motions of the Assessor of the Town of Mamaroneck and the Board of Assessment Review to dismiss the petitions in four related proceedings pursuant to Real Property Tax Law article 7 to review real property tax assessments for the tax years 2010-2013. The Appellate Division, Second Department reversed and granted the motions to dismiss the petition in each proceeding.

Viselli v The Riverbay Corp., 155 AD3d 439 (1st Dept 2017)

Questions presented: In a case where a firefighter slipped and fell on a wet substance on painted concrete stairs, and was injured, whether Supreme Court properly granted summary judgment dismissing plaintiffs’ claim alleging a violation of General Municipal Law § 205-a, and whether defendant’s submission of a certificate of occupancy indicating that the building was in compliance with all applicable statutes, codes and ordinances shifted the burden to plaintiff to raise triable issues on that claim.\

Supreme Court, Bronx County, granted defendant’s motion for summary judgment dismissing the complaint. The Appellate Division, First Department affirmed.

June Session Leave Grants

Matter of Wegmans Food Markets, Inc. v. Tax Appeals Tribunal of State of N.Y., 155 AD3d 1352 (3d Dept 2017)

Questions presented: Whether an ambiguous tax exclusion should be construed in favor of the taxpayer or the government, whether the Appellate Division correctly concluded that the information services provided to appellant by a nonparty were excluded from sales tax liability under Tax Law § 105 (c)(1), and whether the Appellate Division properly made factual determinations not addressed by the Tax Appeals Tribunal.

The Appellate Division, Third Department annulled the determination of respondent Tax Appeals Tribunal denying petitioner’s request for certain refunds of sales and use tax imposed under Tax Law articles 28 and 29.

Matter of Jordan v New York City Housing Auth., 154 AD3d 618 (1st Dept 2017)

Questions presented: Whether Civil Service Law § 71 applies to labor class employees, whether the Department of Citywide Administrative Services is a necessary party to proceeding that challenged New York City Housing Authority’s denial of petitioner’s application for reinstatement, and whether respondent New York City Housing Authority should have been permitted an opportunity to answer the petition following the denial of its cross motion to dismiss.

Supreme Court, New York County, among other things, 1) granted the petition to the extent of remitting the proceeding to respondent New York City Housing Authority (NYCHA) for compliance with Civil Service Law § 71, 2) denied NYCHA’s cross motion to dismiss the petition as against it, and 3) denied NYCHA’s request to answer the petition; App. Div. affirmed.

Rosa v Delacruz, 158 AD3d 571 (1st Dept 2018)

Question presented: In a no fault automobile insurance case, whether the plaintiff raised an issue of fact as to whether his injuries were causally related to automobile accident.

Supreme Court, Bronx County granted defendants’ motions for summary judgment dismissing Rosa’s complaint based on his failure to demonstrate that he suffered a serious injury to his left shoulder within the meaning of Insurance Law § 5102 (d). The Appellate Division, First Department affirmed.

Collazo v Netherland Property Assets LLC, 155 AD3d 538 (1st Dept 2017)

Question presented: In a case where tenants claim that their landlord overcharged them rent by allegedly taking advantage of luxury decontrol provisions of the Rent Stabilization Law while simultaneously receiving tax incentives under the City of New York’s J-51 program, whether Supreme Court abused its discretion in determining that most of plaintiffs’ claims were within the specialized expertise of the New York State Division of Housing and Community Renewal and dismissing those claims under the primary jurisdiction doctrine.

Supreme Court, New York County granted defendants’ motion to dismiss the overcharge proceeding on the ground that the tenants’ claims should first be determined by the York State Division of Housing and Community Renewal. The Appellate Division, First Department affirmed.

June Decision Days Leave Grants

People ex rel. Allen v Yelich, 159 AD3d 1202 (3d Dept 2018)

Question presented: Where the appellant, who absconded from supervision in New York, was sentenced for an unrelated crime in New Jersey, and the New Jersey court ordered the sentence on New Jersey crime to run concurrently with undischarged portion of the New York sentence, but appellant was not returned to New York State custody to serve the concurrent sentence, whether respondent Department of Corrections and Community Supervision improperly calculated appellant’s maximum expiration date for period of post-release supervision.

Supreme Court, Franklin County denied the appellant’s petition for a writ of habeas corpus, and the Appellate Division, Third Department affirmed.

 

 

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The Court of Appeals January, February, and March 2018 Session Leave Grants

Next up as we head toward the start of the 2018-19 Court of Appeals term are the cases in which the Court granted leave to appeal from the January, February, and March 2018 sessions. I previously previewed the September session and October, November, and December session leave grants.

January Leave Grants

Arrowhead Capital Finance, Ltd. v Cheyne Specialty Finance Fund L.P., 154 AD3d 523 (1st Dept 2017)

Question presented: Whether failure of plaintiff’s counsel to maintain an in-state office at the time action was commenced, in violation of Judiciary Law § 470, renders the action a nullity and requires dismissal of the action without prejudice.

Supreme Court, New York County, dismissed the complaint with prejudice as against defendant Cheyne Specialty Finance Fund General Partner and without prejudice as against defendant Cheyne Specialty Finance Fund. The Appellate Division, First Department affirmed.

Matter of Mason H., 154 AD3d 1129 (3d Dept 2017)

Question presented: Whether the Broome County Department of Social Services failed to meet its burden of proof that the father abandoned the subject child, where its only witness addressed the father’s failure to communicate with the child, but not whether the father had any direct contact with the child.

Family Court, Broome County, granted DSS’s application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate the subject child to be abandoned by the father, and terminated the father’s parental rights. The Appellate Division, Third Department affirmed.

February Leave Grants

Matter of Eighth Judicial District Asbestos Litigation (Terwilliger v Beazer East, Inc.), 150 AD3d 1617 (4th Dept 2017)

Question presented: In a purported products liability action where the decedent suffered injuries from exposure to asbestos and coke oven emissions while employed at the Bethlehem Steel plant, whether the coke oven batteries constructed at the Bethlehem Steel plant were “products” subject to products liability theories rather than structures resulting from performance of a contract for construction services.

Supreme Court, Erie County, denied the motion of defendant Honeywell International, Inc., successor in interest to the Wilputte Coke Oven Division of Allied Chemical Corporation (Honeywell), for summary judgment dismissing the complaint against it. The Appellate Division, Fourth Department reversed, granted defendant Honeywell’s motion for summary judgment and dismissed the complaint against it.

Matter of Madison County Industrial Development Agency v State of New York Authorities Budget Office, 151 AD3d 1532 (3d Dept 2017)

Question presented: Whether an industrial development agency had authority to form a local development corporation as a subsidiary under General Municipal Law § 858’s “necessary or convenient” clause.

Supreme Court, Albany County, dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents refusing to recognize petitioner Madison Grant Facilitation Corporation as a subsidiary of petitioner Madison County Industrial Development Agency and requiring petitioner Madison Grant Facilitation Corporation to file separate budget, annual and audit reports.  The Appellate Division, Third Department affirmed.

Matter of Widrick (Carpinelli), 155 AD3d 1564 (4th Dept 2017)

Question presented: Whether the Appellate Division properly concluded that only petitioner’s union, and not petitioner individually, had the right to demand arbitration of a grievance arising from a dispute involving petitioner’s employment.

Supreme Court, Lewis County, denied respondents’ motion to dismiss the petition and granted the petition to compel arbitration. The Appellate Division, Fourth Department reversed, granted the motion, and dismissed the petition.

March Leave Grants

Matter of Retail Energy Supply Assn. v Public Service Commn. of State of N.Y., 152 AD3d 1133 (3d Dept 2017)

Matter of National Energy Marketers Assn. v New York State Public Service Commn., 152 AD3d 1122 (3d Dept 2017)

Questions presented: In a challenge to “Order Resetting Retail Energy Markets and Establishing Further Process,” which imposed various requirements on new and renewal contracts between energy service companies and mass market customers, whether the New York State Public Service Commission has the authority to impose rate-making limitations on energy service companies and whether energy service companies have a property interest in continued access to utility systems, and thus are entitled to procedural due process.

Supreme Court, Albany County, among other things, partially granted petitioners’ application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent resetting retail energy markets and establishing further process. The Appellate Division, Third Department affirmed.

 

Matter of Clark v Villegas, 153 AD3d 437 (1st Dept 2017)

Questions presented: Whether the Appellate Division properly granted writ of prohibition to prohibit enforcement of a Supreme Court order that directed Department of Corrections and Community Supervision to credit respondent with 1,282 days of jail time and whether CPLR article 78 proceeding is proper vehicle to challenge jail time credit calculation.

The Appellate Division, First Department granted a CPLR article 78 petition to prohibit the enforcement of an order of Supreme Court, Bronx County, which ordered respondent New York State Department of Corrections and Community Supervision to credit respondent Dewayne Robinson with 1,282 days of jail time.

 

Up through March, the Court of Appeals had granted 17 cases in total: 3 from the First Department, 1 from the Second Department, 8 from the Third Department, and 5 from the Fourth Department. That’s an interesting trend toward more cases being granted from the upstate Departments, at least through the March 2018 session. We’ll see if it continues through the end of the 2017-18 Court of Appeals term.

 

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The Court of Appeals October, November, and December 2017 Session Leave Grants

With the start of the 2018-19 term right around the corner, it’s time to continue my quick look at the cases the Court of Appeals will be hearing during this upcoming term. First were the appeals as of right from the 2017-18 term. Then I previewed the appeals as of right on the SSM track that will be decided without oral argument.

Now I’m back to the cases in which the Court of Appeals granted leave to appeal. I previewed the September 2017 session leave grants a while ago, and up now are the grants from the October, November, and December 2017 sessions.

October Session Leave Grants

Niagara Mohawk Power Corp. v Allied Healthcare Products, Inc., 137 AD3d 1539 (3d Dept 2017)

Questions presented: Whether an affirmative covenant to provide free power to manufacturing facilities on property now owned by defendant Allied Healthcare Products is unenforceable as a burden in perpetuity, whether plaintiff and defendant Albany Engineering are equitably estopped from challenging covenant, and whether defendant Allied Healthcare Products abandoned the power covenant.

Supreme Court, Albany County, among other things, granted the motion of defendant Allied Healthcare Products for summary judgment dismissing, among other things, the second amended complaint against it. The Appellate Division, Third Department reversed, denied the motion of defendant Allied Healthcare Products for summary judgment, granted the motions of plaintiff and defendant Albany Engineering Corporation for summary judgment, and declared that the power covenant at issue is unenforceable. Supreme Court thereafter denied plaintiff’s motion to allow further proceedings to adjudicate the scope of its recoverable damages.

Matter of Eastbrooke Condominium v Ainsworth, 147 AD3d 1510 (4th Dept 2017)

Questions presented: Whether condominium unit owner’s authorization to condominium’s board of managers to act as an agent in proceeding challenging tax assessment for a particular tax year authorizes the board to act as unit owner’s agent for a different year, and whether respondents waived any deficiency in unit owners’ authorizations.

Supreme Court, Monroe County, granted the petitions under Real Property Tax Law article 7 to the extent of reducing the tax assessments for the challenged years, but limited the condominium unit owners entitled to tax refunds. The Appellate Division, Fourth Department affirmed.

November Session Leave Grants

Matter of T-Mobile Northeast, LLC v DeBellis, 143 AD3d 992 (2d Dept 2016)

Questions presented: Whether cellular telephone equipment housed on rooftops in petitioner’s service area are taxable real property under RPTL 102(12)(i) or RPTL 102(12)(b), and whether application of RPTL 102(12)(i) to certain components of petitioner’s cellular telephone equipment violates petitioner’s right to equal protection.

Supreme Court, Westchester County, denied the petition and dismissed the proceeding. The Appellate Division, Second Department affirmed.

December Session Leave Grants

Matter of DeVera v Elia, 152 AD3d 13 (3d Dept 2017)

Question presented: Whether a public school district can impose regulations on a charter school to obtain state funding for pre-kindergarten programming under Education Law § 73 as a partner in the school district’s consolidated application to the New York State Department of Education.

Supreme Court, Albany County, dismissed petitioners’ application in a CPLR article 78 proceeding, to review a determination of respondent Commissioner of Education partially dismissing petitioners’ challenge to certain conditions imposed upon their receipt of certain state funds. The Appellate Division, Third Department reversed, granted the petition, annulled that part of the determination upholding certain conditions imposed upon petitioners’ receipt of certain state funds, and remitted the matter to respondent Commissioner of Education for further proceedings not inconsistent with the decision.

Matter of Mancini v Office of Children and Family Services, 151 AD3d 1494 (3d Dept 2017)

Question presented: Whether compensation benefits awarded for impairment of wage-earning capacity pursuant to Workers’ Compensation Law § 15(3)(v) are subject to the durational limitations of Workers’ Compensation Law § 15(3)(w).

The Appellate Division, Third Department affirmed the decision of the New York State Workers’ Compensation Board, which ruled, among other things, that claimant was entitled to workers’ compensation benefits pursuant to Workers’ Compensation Law § 15(3)(v).

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The Sua Sponte Merits Track: How the Court of Appeals Decides Appeals Without Oral Argument

Not every appeal that the Court of Appeals decides is rendered after full briefing and oral argument. While most are, there is another way. A quicker and cheaper way (for parties who care about those kinds of things).

After an appeal is filed with the Court of Appeals, whether taken as of right or after a grant of leave, the Clerk’s Office examines the preliminary appeal statement to decide if the case is a candidate for review on the sua sponte merits (SSM) track pursuant to section 500.11 of the Court’s rules. Here’s what the Clerk’s Office looks for:

Is there some limiting factor that would constrain the Court’s review? For example, the Court is bound to accept affirmed findings of fact, and thus has a limited review role in those kinds of cases. Has the issue in a case that was granted been recently decided by the Court, so there wouldn’t be much more to do than apply the new law? Do the parties want a more streamlined appeal process? These are all things the Clerk’s Office will ask (or a Judge or the parties could identify the cases as a good candidate for SSM review independently).

If a case is chosen for the SSM track, the parties still get to prepare letters briefs, albeit shorter ones (7,000 word limit). But there is no argument. Once the papers are filed, the cases gets submitted to the full Court and decided as soon as the Court reaches a majority.

As I noted quickly at the beginning, the SSM track can really save the parties and the Court lots of time and money during what could otherwise be a lengthy appeal process. So in that way, it’s an attractive option.

On the other hand, clients often like to see what they’re paying for: oral argument of their appeal. That, they may believe, is their day in court, and that may often be hard to give up.

Now that we’ve covered the process, here’s a look at the SSM track as of right appeals from the 2017-18 term.

The 2017-18 Term SSM Appeals as of Right

Keller-Goldman v Goldman, 149 AD3d 422 (1st Dept 2017)

Question presented: Whether the father’s credit against child support obligations, while he is paying for a particular child’s room and board at an educational institution, is subject to a cap.

Supreme Court, New York County, adhered to its earlier order (8/19/15) which granted plaintiff’s motion to the extent of interpreting the parties’ Stipulation of Settlement and Agreement as providing a cap on defendant’s credit against his child support obligations. The Appellate Division, First Department affirmed.

Brooks v April, 154 AD3d 564 (1st Dept 2017)

Question presented: Whether in a malpractice action, upon submission of affirmations of experts on defendants’ motion for summary judgment, defendants established their entitlement to judgment as a matter of law and plaintiffs failed to raise a triable issue of fact as to defendant physician’s alleged negligence in diagnosing plaintiff’s brain trauma.

Supreme Court, New York County, among other things, denied defendants’ motion for summary judgment dismissing the complaint in its entirety. The Appellate Division, First Department reversed and granted defendants’ motion for summary judgment.

Matter of Spence v New York State Department of Agriculture and Markets, 154 AD3d 1234 (3d Dept 2017)

Question presented: May employee policies regarding public employees’ outside activities forbid the employees from campaigning for and holding elected office?

Supreme Court, Albany County, in a combined CPLR article 78 proceeding and action for declaratory judgment challenging disapproval of dairy product specialists’ requests to campaign for and serve as county legislators, among other things, granted respondents’ motion for summary judgment dismissing the petition and complaint. The Appellate Division, Third Department modified by declaring that the outside activities policy of respondent Department of Agriculture and Markets has not been shown to be unconstitutional, and as so modified, affirmed.

Mid-Hudson Valley Federal Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218 (3d Dept 2017)

Question presented: What is the extent of particularization required in a complaint alleging legal malpractice, breach of contract and fraud, in the face of defendants’ CPLR 3211(a)(7) pre-answer motion to dismiss the complaint?

Supreme Court, Ulster County, granted defendants’ motion pursuant to CPLR 3025(a) and 3211(a) to dismiss the complaint to the extent of dismissing the breach of contract cause of action, but denied the motion with regard to the legal malpractice and fraud causes of action. The Appellate Division, Third Department modified by reversing so much of the order as denied defendant’s motion to dismiss the legal malpractice and fraud causes of action, granted the motion to that extent and dismissed those causes of action, and, as so modified, affirmed.

Matter of Wohlfeil v Sharel Ventures, LLC, 155 AD3d 1264 (3d Dept 2017)

Question presented: Whether substantial evidence supports the Workers’ Compensation Board’s determination that claimant sustained a permanent partial disability and a 75% loss of wage-earning capacity where medical testimony indicated that, as a result of her lumbar back injury, she is unable to perform even sedentary work as defined in the 2012 New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity.

The Appellate Division, Third Department reversed a 10/29/15 decision of the Workers’ Compensation Board which ruled that claimant sustained a permanent partial disablity and a 75% loss of wage-earning capacity, and remitted the matter to the Board for further proceedings not inconsistent with the decision.

Bradley v HWA 1290 III LLC, 157 AD3d 627 (1st Dept 2018)

Question presented: In a personal injury action where a mechanic was electrocuted while working in elevator machine room of building owned by defendants, whether plaintiffs raised issues of fact as to whether decedent died as a result of the defendants’ negligence.

Supreme Court, New York County, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the Labor Law § 200 and common law negligence claims. The Appellate Division, First Department reversed and granted defendants’ motion.

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How to Take an Appeal as of Right to the Court of Appeals: The 2017-2018 Normal Course Appeals as of Right

It’s not often that you find a case that has the direct right to go to the Court of Appeals. Unlike the Appellate Division to which almost everyone has the right to appeal without permission, the Court of Appeals is a court of extremely limited jurisdiction. Precious few instances exist that give a party the right to go directly to the Court of Appeals without first seeking leave to appeal, either from the Appellate Division or the Court itself.  But, each term, a few cases find the rare jurisdictional hook to take an appeal as of right to the Court of Appeals.  Here’s how they do it.

Combing through the Court of Appeals’ new filings list shows that many, many appeals as of right are taken to the Court, but most are dismissed on the Court’s own motion. That is, once a notice of appeal is filed with the County Clerk where there case originated and a preliminary appeal statement is filed with the Court of Appeals, the Court Clerk’s office begins a jurisdictional inquiry to determine if the Court has jurisdiction to hear the appeal.

The first thing the Clerk’s Office looks for is whether the appeal was timely taken. Was the notice of appeal served within 30 days of service of the Appellate Division order with notice of its entry? (Ok, ok, so it’s really between 30 to 35 days depending on how the order was served). The notice of appeal was timely?  Great, let’s move on to the next step.

Second, the Clerk’s Office has to decide whether the Appellate Division order from which the appeal is taken finally determines the entire proceeding. Unless the case is truly over—meaning that there is no claim, counterclaim, cross claim, or anything else other than ministerial entry of judgment left for the courts below to do—the Court can’t hear the case. Say, for example, the plaintiff won on summary judgment at the Appellate Division, but no final award of damages has been entered.  That’s nonfinal, and the Court of Appeals can’t hear an appeal from a nonfinal order.  But, assume your case passes that hurdle to, and the Appellate Division order finally resolves the entire case.

Third, the Clerk’s Office dives into the Court’s jurisdiction. CPLR 5601 provides two main jurisdictional grounds for an appeal as of right to the Court of Appeals: (1) a double dissent at the Appellate Division on a question of law, and (2) the Appellate Division order decided a substantial constitutional question that was directly involved.

Often when the Clerk’s office gets this far, it will send out a letter inquiry to the parties, inviting them to explain the jurisdictional basis for the appeal as of right. This gives the parties a chance to weigh in and argue why the Court has jurisdiction to keep the appeal, rather than dismiss it for lack of jurisdiction. But, believe me, the response to the Court is not an easy one to write.  The Court’s jurisdiction is complex, and you need to know what resources can help you get the right answer. That’s when you turn to the person who knew the Court’s jurisdiction most intimately, Arthur Karger, and his treatise, The Powers of the New York Court of Appeals.

Let’s start with the double dissent at the Appellate Division under CPLR 5601(a). There are two requirements: (1) the double dissent has to be on a question of law, and (2) it has to be in the appellant’s favor. The second requirement usually isn’t that hard to satisfy. Dissenting justices usually would find in favor of the losing side who want to appeal. But, the first requirement is, at times, more elusive. For example, say you have two dissenters at the Appellate Division who disagree with how the majority weighed the evidence after trial. You have two dissenters, but no question of law because the weight of the evidence is an issue of discretion, not law. Same for if the dissent is based on an unpreserved issue. While the Appellate Division has interests of justice jurisdiction, the Court of Appeals does not. And if the majority and dissent agree on the applicable legal standard, but differ on the facts, that’s not a question of law either. So while many attorneys may jump at the sight of a dual dissent at the Appellate Division, it’s always important to take a closer look to make sure that its on a question of law before filing a notice of appeal as of right.

Next, if the Appellate Division order decides a directly involved, substantial constitutional question, CPLR 5601(b)(1) will also provide a jurisdictional basis to appeal as of right to the Court of Appeals. Although the requirements are easy to state (the constitutional question must be (1) directly involved and (2) substantial) , their application is much more difficult. For a constitutional question to be directly involved, it first must have been preserved both at the trial court and at the Appellate Division. A constitutional issue raised only at the Appellate Division, and reached as a matter of the Appellate Division’s interests of justice jurisdiction, is not enough. The constitutional question must also have been necessarily decided by the Appellate Division .  So, if the Appellate Division decided the case on a number of independent grounds, including nonconstitutional ones, the constitutional question is not directly involved for purposes of an appeal as of right.

Finally, what does it mean that the constitutional question is substantial?  Well, that’s a case-by-case decision by the Court. The question doesn’t need to be a winner, but it also can’t already have been decided against the appellant’s position. Otherwise, the Court generally looks at a number of things to determine substantiality, including “the nature of the constitutional interest at stake, the novelty of the constitutional claim, whether the argument raised may have merit, and whether a basis has been established for distinguishing a state constitutional claim (if asserted) from a federal constitutional claim” (The New York Court of Appeals Civil Jurisdiction and Practice Outline, at 4). Sounds easy, right? I didn’t think so.

Those are the two main bases for filing an appeal as of right to the Court of Appeals.  Others do exist, but are much too complicated for a quick discussion here. Now let’s take a look at the appeals as of right taken to the Court of Appeals during the 2017-2018 term that will be heard after full briefing an oral argument.

Normal Course Appeals as of Right

Matter of James Q., 154 AD3d 58 (3d Dept 2017)

Question presented: Whether the Appellate Division erred in determining that the confidentiality provisions of the Mental Hygiene Law do not require the sealing of documents filed in a CPL 330.20 (9) civil commitment retention program, but that redaction of the records is required.

Supreme Court, Franklin County denied respondent James Q.’s motion to seal the record of the civil commitment retention proceeding.  The Appellate Division, Third Department modified by requiring the records to be redacted, but affirmed the Supreme Court order insofar as it denied the sealing request, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law

Matter of Save America’s Clocks, Inc. v City of New York, 157 AD3d 133 (1st Dept 2017)

Question presented: Whether the determination of New York City Landmarks Preservation Committee approving a Certificate of Appropriateness allowing owner of property to convert a landmark-designated clock tower into a private residence, and to convert the clock from a mechanical to an electrical system of operation, was arbitrary and capricious, and whether New York City’s Landmarks Preservation and Historic Districts Law (Administrative Code of City of NY § 25-301 et seq.) permits the LPC to require the property owner to allow continuing public access to interior landmark and if that constitutes an unconstitutional taking.

Supreme Court, New York County, granted the CPLR article 78 petition to annul the Certificate of Appropriateness issued by the LPC, which had authorized work on certain features of the designated interior landmark. The Appellate Division, First Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law

Matter of Mental Hygiene Legal Serv. v Daniels, 158 AD3d 82 (1st Dept 2017)

Question presented: Whether petitioner Mental Hygiene Legal Services has standing to bring article 78 proceeding seeking a writ of mandamus to compel respondent, acting director of Bronx Psychiatric Center, to provide copies of a patient’s complete clinical record in advance of a retention hearing pursuant to Mental Hygiene Law § 9.31(a), and whether the agency, in failing to provide Mental Hygiene Legal Service with a copy of the patient’s complete clinical record, violated its statutory obligation under Mental Hygiene Law § 9.31(b).

Supreme Court, Bronx County, denied the agency’s cross motion to dismiss the proceeding, and granted the petition to the extent of declaring that the agency’s failure to provide Mental Hygiene Legal Services with a complete copy of the patient’s so-called medical chart in any proceeding pursuant to Mental Hygiene Law § 9.31(a) violates its statutory obligations, and ordered the agency, in any action brought pursuant to Mental Hygiene Law § 9.31(a), to provide Mental Hygiene Legal Services with a complete copy of such medical chart prior to any hearing. The Appellate Division, First Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law

Williams v Beemiller, Inc., 159 AD3d 148 (4th Dept 2018)

Question presented: Whether the exercise of personal jurisdiction over the defendant, an out-of-state dealer of firearms who sold a gun in Ohio that was transported to New York and used in a shooting that injured the plaintiff, under New York’s long-arm statute (see CPLR 302[a][3]) comports with federal due process, and whether jurisdiction over the defendant can be obtained under an agency or alter ego theory.

Supreme Court, Erie County, denied the motion of defendant Brown, the out-of-state firearms dealer, for summary judgment dismissing the first amended complaint against him. The Appellate Division, Fourth Department reversed, granted the motion, and dismissed the first amended complaint against Brown.

Jurisdictional predicate: Substantial constitutional question directly involved.

Vanyo v Buffalo Police Benevolent Assn., Inc., 159 AD3d 1448 (4th Dept 2018)

Question presented: In an action by a former police officer alleging improper termination following an arbitration that was conducted pursuant to collective bargaining agreement, whether Supreme Court properly dismissed the first and second causes of action alleged in the amended complaint as time-barred, whether relation-back doctrine of CPL 203(f) applies to the first and second causes of action, whether Supreme Court exceeded its authority in sua sponte dismissing original complaint with prejudice pursuant to CPLR 306-b, and whether defendants waived any objection based upon lack of service of the original complaint.

Supreme Court, Erie County, granted the motions of defendants to dismiss the complaint and amended complaint against them. The Appellate Division, Fourth Department affirmed, with two Justices dissenting in part.

Jurisdictional predicate: Dual dissent on a question of law.

Matter of Kosmider v Whitney, 160 AD3d 1151 (3d Dept 2018)

Question presented: Whether electronic images of ballots cast in an election are accessible under the Freedom of Information Law (Public Officers Law art 6 [FOIL]), or whether they are exempt from disclosure.

Supreme Court, Erie County, among other things, granted the petitioner’s CPLR article 78 application to annul a determination of respondent Chairperson of the Essex County Board of Supervisors denying petitioner’s FOIL request for the electronic images of ballots. The Appellate Division, Fourth Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law.

Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 161 AD3d 169 (3d Dept 2018)

Question presented: In a CPLR article 78 proceeding challenging the Department of Environmental Conservation’s approval of Essex Chain Lakes Complex Unit Management Plan, whether certain causes of action were ripe for judicial review, whether a rational basis exists for the determination of the DEC that the Wild, Scenic and Recreational Rivers System Act permits establishment of snowmobile trail on a road that is located in a wild river area, and whether Supreme Court properly dismissed the fourth cause of action on the basis that respondents are not bound by guidance document for the siting, construction, and maintenance of snowmobile trails that was adopted by the DEC in 2009.

Supreme Court, Albany County, dismissed the petitioners’ application, in a CPLR article 78 proceeding, to review a determination of the approving a plan permitting the construction of a new snowmobile corridor. The Appellate Division, Third Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law.

Those are the appeals as of right taken to the Court of Appeals that will be heard next term in the normal course, with full briefing and argument. Next up in my summer series: the appeals as of right that the Court has decided to hear and decide on the sua sponte merits track. Stay tuned!

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The Appellate Division Expands E-Filing to New Categories of Appeals

The Appellate Division announced that it is expanding its e-filing system to include appeals in more cases.  As I discussed when the new Appellate Division e-filing system came online in March, it was a limited roll out, with the kinds of cases that are subject to mandatory e-filing limited in each of the Departments.  Here’s where the system started on March 1st:

The roll out has gone so well that the Second, Third, and Fourth Departments have recently decided to include more types of appeals that have to be e-filed.

Second Department

On July 2, 2018, the Second Department expanded its mandatory appellate e-filing to include all matters originating and electronically filed in Supreme and Surrogate’s Courts in Suffolk County.  To be subject to the mandatory e-filing, the notice of appeal has to be either dated on or after July 2nd, or if it’s dated before July 2nd, the appeal has to be perfected after August 15th. For appeals perfected before July 2nd, e-filing is not available.

So now, the Second Department’s e-filing system includes most appeals coming out of Westchester and Suffolk Counties.

Third Department

The Third Department has had the greatest expansion of the three. The Court decided that as of April 1st, appeals in civil actions commenced by summons and complaint in Supreme Court for the Fourth and Sixth Judicial Districts would be subject to e-filing.  The Court also included all matters that were e-filed in the trial court where the notice of appeal is filed after April 1st, and allowed all parties to consent to the appeal being e-filed as well, even if it wasn’t e-filed below.

On July 1st, the Court expanded the e-filing program to include all appeals in civil proceedings commenced by petition in Supreme Court, and transferred proceedings, where the notice of appeal is filed after July 1st.  That includes a huge swath of CPLR Article 78 proceedings against municipalities and state agencies, as well as many other special proceedings that weren’t previously included. The Court also included cases from  County Court, the Court of Claims, and Surrogate’s Court where the notice of appeal is filed after July 1st.

In all practical effect, the Third Department now requires appellate e-filing in pretty much every case.

Fourth Department

The Fourth Department expanded its mandatory e-filing program to include all appeals filed on or after July 1st in Surrogate’s Court cases.  It’s also launching voluntary e-filing for all cases that were e-filed at Supreme Court. That’s also a big expansion from the previous program that only allowed e-filing in Commercial Division appeals.

It’s a great sign to see the Appellate Division expand the categories of e-filed cases so soon after first rolling out the system in March.  The e-filing process remains the same, but now attorneys get a choice to e-file in most appeals.  Given the convenience that option offers, I would hope to see many attorneys take advantage.

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