The 2016-17 Court of Appeals Term Leave Grants – September through January Sessions

With the Court of Appeals taking its summer recess, having decided all argued cases from this term (the Court’s practice of releasing decisions during the session after they are argued is still impressive), I went back through the Court’s decision lists from the 2016-17 term to see what cases the Court will be hearing and deciding starting this fall.

There are multiple ways to take a case to the Court.  Parties can take an appeal to the Court as of right under CPLR 5601 if they can establish a jurisdictional hook, that is, a substantial constitutional question that is directly involved and decisive of the case or a dual dissent on a question of law in the parties’ favor, among others.  Finding that hook, however, is fairly rare.  Most parties have to seek permission to appeal to the Court of Appeals, whether from the Appellate Division or from the Court itself.  The Court generally only grants 5 or 6 percent of all of the civil leave motions, but last year the Court’s grant rate was less than 2 percent (17 grants out of 910 motions).

This term, the Court granted leave to appeal in 26 cases, most of which came at the end of the term.  Between the September Session and the January Session, the Court only granted 4 cases. There were 5 grants in February, 3 in March, 4 in April, and the rest in June.  Let’s take a quick look at those cases.  This is Part 1 of a 4 post series.

September Session Grants

Matter of Terranova v Lehr Construction Co., 139 AD3d 1309 (3d Dept 2016)

Question presented: Whether under Matter of Kelly v State Ins. Fund (60 NY2d 131 [1983]), a workers compensation carrier is entitled to reimbursement of an equitable share of litigation expenses avoided by a third party recovery where the claimant obtains a schedule loss of use award paying present value of the future benefits.

November Session Grants

Matter of Abdur-Rashid v New York City Police Department; Matter of Hashmi v New York City Police Department, 140 AD3d 419 (1st Dept 2016)

Question presented: Whether a state or municipal agency may refuse to confirm or deny the existence of records requested pursuant to the Freedom of Information Law if it can show that confirmation or denial would cause harm cognizable under a FOIL exception.

Paramount Pictures Corporation v Allianz Risk Transfer AG, 141 AD3d 464 (1st Dept 2016)

Question presented: Whether the later assertion in a state court action of a compulsory counterclaim under Rule 13(a) of the Federal Rules of Civil Procedure that was not pled in a prior federal action between the same parties is barred under the doctrine of res judicata

January Session Grants

Congel v Malfitano, 141 AD3d 64 (2d Dept 2016)

Question presented: Whether, in determining the value of a partnership interest for purposes of Partnership Law § 69(2)(c)(II)—to buy out the interest of a partner who has wrongfully caused the dissolution of the partnership to allow the partnership to continue—a minority discount may be applied to reflect the lack of control a minority partner has in the operations of the partnership.

Next up: the February and March Session grants.

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