The 2016-17 Court of Appeals Term Leave Grants: June Session and Decision Days

For the first 9 sessions of the 2016-17 Court of Appeals term, the Court only granted leave to appeal in 17 civil cases—7 from the First Department, 6 from the Second Department, 3 from the Third Department, and 1 from the Fourth Department.  The June Session and Decision Days slightly increased that lethargic grant pace, with 10 grants in these cases.

June Session and Decision Days

Williams v City of New York, 142 AD3d 901 (1st Dept 2016)

Question presented: Whether the penalty of termination is so disproportionate as to shock the conscience for an eighth-grade physical education teacher who initiated conversations with at least two of his female students asking them if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them.

U.S. Bank National Association v DLJ Mortgage Capital, Inc., 141 AD3d 431 (1st Dept 2016) (two consolidated cases)

Question presented: Whether dismissal without prejudice was proper remedy where residential mortgage backed securities trustee failed a condition precedent to give notice of a breach of the representations and warranties before seeking to enforce a repurchase obligation, and whether the trustee that was substituted as the plaintiff in the action for the Federal Housing Finance Agency, which lacked standing, could recommence such a dismissed suit pursuant to CPLR 205(a).

Waite v Town of Champion, 148 AD3d 1634 (4th Dept 2017)

Question presented: What are the grounds upon which electors may challenge the dissolution of a municipal service district after approval at a referendum.

2138737 Ontario, Inc. v Samsung C&T Corporation, 144 AD3d 122 (1st Dept 2016)

Question presented: Whether a broadly drawn contractual choice-of-law provision, that provides for the agreement to be “governed by, construed and enforced” in accordance with New York law, precludes the application of New York’s borrowing statute (CPLR 202).

Matter of Gonzalez v Annucci, 149 AD3d 256 (3d Dept 2017)

Question presented: Whether an exception to the mootness doctrine applied to allow the Court to review challenge to sex offender’s placement in a treatment facility at the end of his maximum prison term because he was unable to secure Sexual Assault Reform Act-compliant housing after he had been released to such housing, and what is the scope of DOCCS’ duty to assist inmates who are on community supervision in securing “employment, educational or vocational training, and housing” under Correction Law § 201(5).

People v Quinn Britton, 148 AD3d 1064 (2d Dept 2017)

Question presented: Whether a sex offender may be assessed points in his Sex Offender Registration Act assessment for conduct underlying sexual assault crimes of which he was acquitted at trial.

People v Frederick Diaz, 150 AD3d 60 (1st Dept 2017)

Question presented: Whether requiring defendant to register as a sex offender in New York, based on a conviction of a crime that did not have any sexual component but which required registration in Virginia under a broader statute that covers both sex crimes and crimes against minors, violates the defendant’s substantive due process rights under the Federal and New York Constitutions.

Matter of Kowal v DiNapoli, 145 AD3d 1152 (3d Dept 2016)

Question presented: Whether a court officer who suffered from post traumatic stress disorder after using deadly force against an assailant while on duty at a courthouse was injured in an “accident” within the meaning of Retirement and Social Security Law § 605–a to entitle him to accidental disability retirement benefits.

Lau v Margaret E. Pescatore Parking, Inc., 145 AD3d 567 (1st Dept 2016)
Lau v Margaret E. Pescatore Parking, Inc., 105 AD3d 594 (1st Dept 2013)

Question presented: Whether the trial court providently exercised its discretion to strike the note of issue and direct plaintiff to appear for a further deposition in the case because his counsel had unduly objected to questioning, and whether defendant was entitled to summary judgment on issue of notice of alleged dangerous condition.

So, in total, the Court of Appeals itself granted leave to appeal in 27 cases, with almost half of those coming from the First Department, and 7 from the Second Department.  The Third and Fourth Departments combined for 7 leave grants (5 from the Third and 2 from the Fourth).  The 27 leave grants is the start of a slight increase from last year (the Court’s Annual Report which runs from January through December reported 17 civil leave grants, 3 of which occurred during the 2016-17 term).  But still, the Court’s caseload is way down from where it was only a few years ago.

Next up on the preview of cases that the Court of Appeals will be hearing during the 2017-18 term is a look at the cases in which the Appellate Division granted leave to appeal on a certified question to the Court of Appeals.