How The Appellate Division Grants Leave to the Court of Appeals: The 2016-17 Term Appellate Division Grants

There are multiple ways to take a case to the Court of Appeals. You can seek leave to appeal from the Court directly, which the Court grants fairly infrequently (I previewed the 2016-17 Court of Appeals term leave grants here: Part 1 – September through January Sessions, Part 2 – February and March Sessions, Part 3 – April and May Sessions, and Part 4 – June Session and Decision Days). Or you can take two bites at the apple, and seek leave to appeal from the Appellate Division first.

Here’s the thing, though. If you’re the one asking the Appellate Division to grant you leave to appeal to the Court of Appeals, that means you lost.  And it means that you would be asking the same judges that disagreed with you to give you another chance to have the Court of Appeals overrule what they just said. Sounds like a losing proposition, and it usually is.  Convincing a court to change its mind on anything is difficult, but sometimes it happens, and the Appellate Division decides to grant leave to appeal to have the Court of Appeals review its decision.

The way that happens is the Appellate Division will grant leave to appeal  pursuant to CPLR 5602(b). What’s unique about that is that the Appellate Division can grant leave in cases that the Court of Appeals would otherwise be unable to hear. The Court of Appeals’ jurisdiction allows it to grant review only in cases that are final, meaning that the entire case is over. If there are a few claims still pending in the lower courts, or some issues still left to resolve, when the Court of Appeals is asked to grant leave to appeal, the Court is bound to dismiss the motion because the Appellate Division order isn’t yet final.  It is only when there is nothing left to do in the lower courts that the Court of Appeals can grant leave. (There are some limited exceptions to that general rule of the Court’s jurisdiction, but I’ll leave those for another day.)

The Appellate Division, in contrast, isn’t constrained to grant leave only in cases that have become final. It can also grant leave to appeal to the Court of Appeals on a certified question before the whole case is over. Say there’s a new issue that hasn’t been addressed by the Court of Appeals, but would govern how the case will proceed in the trial court, the Appellate Division can ask the Court of Appeals to review that question even though the case is still pending. When the certified question procedure first began, the Appellate Division often certified a particular question to the Court of Appeals, which constrained the Court’s review only to that question. That practice has largely been abandoned, however. Now, the Appellate Division certifies the same question in every case: “Was the order of this Court properly made?” That certified question gives the Court of Appeals jurisdiction to consider the whole case, not just the one issue specified by the Appellate Division.

Although there’s an argument to be made that the Court of Appeals should be allowed to control its own docket, Judges much smarter than me laud the Appellate Division’s use of its authority to grant leave to the Court of Appeals. Because the Appellate Division sees a far greater number of cases, it is able to see the developing trends in New York law and judge when an issue is ripe for the Court of Appeals to address.  Here’s a rundown of the cases from the 2016-17 term that the Appellate Division thought should be reviewed by the Court of Appeals.

September

Desrosiers v Perry Ellis Menswear, LLC, 139 AD3d 473 (1st Dept 2016)

Question presented: Whether putative class members were entitled to notice of discontinuance of the action under CPLR 908 despite the fact that the time for the individual plaintiff to move for class certification had expired under CPLR 902

Supreme Court, New York County, denied plaintiff’s cross motion to notify the putative class of the discontinuance of the action, pursuant to CPLR 908. The Appellate Division, First Department reversed and remanded to Supreme Court, New York County, to fashion an appropriate notification to the putative class under CPLR 908.

Lohnas v Luzi, 140 AD3d 1717 (4th Dept 2016)

Question presented: Whether an issue of fact existed regarding application of the continuous treatment doctrine, and whether the equitable estoppel doctrine applied to toll the statute of limitations

Supreme Court, Erie County, granted defendants’ motion for leave to reargue and, upon reargument, denied defendants’ motion for partial summary judgment. The Appellate Division, Fourth Department modified by granting the motion for partial summary judgment in part and dismissing the complaint to the extent that the complaint, as amplified by the bill of particulars, asserts that defendants are equitably estopped from asserting as a defense the statute of limitations for medical malpractice and, as so modified, affirmed.

Franklin v Gareyua, 136 AD3d 464 (1st Dept 2016)

Question presented: Whether the plaintiff motorist failed to raise a triable issue of fact on the cause of his alleged injury

Supreme Court, Bronx County, granted defendants’ motion for summary judgment dismissing plaintiff’s claim that he suffered a serious injury to his left shoulder within the meaning of Insurance Law § 5102(d), and the Appellate Division, First Department affirmed.

Mapfre Insurance Co. of N.Y. v Manoo, 140 AD3d 468 (1st Dept 2016)

Question presented: Whether the plaintiff insurer established entitlement to summary judgment based on the insured’s failure to appear at an examination under oath, notwithstanding that the insurer scheduled the examination before receiving the provider’s claim for benefits, and whether the court properly interpreted the Insurance Department regulations.

Supreme Court, New York County, among other things, granted defendant’s motion to reargue and, upon reargument, denied plaintiff’s motion for summary judgment. The Appellate Division, First Department reversed, granted plaintiff’s motion for summary judgment, and declared that the plaintiff is not obligated to pay defendant for the claim at issue.

Somereve v Plaza Construction Corp., 136 AD3d 537 (1st Dept 2016)

Question presented: Whether Labor Law § 240(1) applies where the plaintiff was using a prime mover to hoist a load and the prime mover pitched forward, causing the plaintiff to be ejected off the back of the machine, and whether issues of fact existed on comparative negligence and sole proximate cause precluding the grant of summary judgment.

Supreme Court, New York County, granted plaintiff’s motion for partial summary judgment on the Labor Law § 240(1) cause of action, and the Appellate Division, First Department affirmed.

This is the first post of my multi-part review of the cases where the Appellate Division granted leave to appeal to the Court of Appeals for the 2017-18 term. Through just the first month, you can start to see a trend develop.  The First Department really likes to grant leave to the Court of Appeals.

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