The 2016-17 Appellate Division Leave Grants: October Through December

The Court of Appeals is largely a certiorari court, meaning that you generally need permission to take a case there. You would think that because permission must be granted before the Court of Appeals can hear a case, it is usually the Court that grants permission to determine the cases it wants to hear.  You would be wrong. The Court of Appeals granted leave to appeal in 27 cases during the 2016-17 term, but those are only a small proportion of the cases that the Court will hear starting this fall. There are a few proportion of cases that can be taken on an appeal as of right, and a handful of cases that come to the Court on a certified question from the Second Circuit.

The remaining cases come from leave grants by the Appellate Division. From September through December 2016, the Appellate Division granted leave to appeal to the Court of Appeals in 19 cases (5 grants in September and 14 from October through December previewed below), only 8 less than the Court of Appeals itself granted during the entire 2016-17 term.

October Grants 

Dormitory Authority of the State of New York v Samson Construction Co., 137 AD3d 433 (1st Dept 2016)

Question presented: Whether the Dormitory Authority may pursue a negligence claim against the architect of a building project in addition to a claim of breach of contract to recover for damages incurred as a result of site excavation for the building’s foundation, and whether the City of New York, who was not a party to the DASNY-architect contract may assert a claim as a third party beneficiary as the ultimate end user of the building.

Supreme Court, New York County, among other things, granted the part of the architect’s motion for summary judgment seeking dismissal of DASNY’s breach of contract claim, and denied the part of the motion seeking dismissal of the negligence claim. The Appellate Division, First Department modified to deny the motion as to the breach of contract claim, and otherwise affirmed.

Baumann v Long Island Power Authority, 141 AD3d 554 (2d Dept 2016)
Connolly v Long Island Power Authority, 141 AD3d 555 (2d Dept 2016)
Heeran v Long Island Power Authority, 141 AD3d 561 (2d Dept 2016)

Question presented: Whether utility providers are immune from negligence suits brought by property owners for damages caused by the storm surge of Hurricane Sandy under the doctrine of governmental function immunity.

Supreme Court, Queens County, denied the joint motion of defendants Long Island Power Authority, Long Island Lighting Company and National Grid Electric Services LLC pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them, and the Appellate Division, Second Department affirmed.

Forman v Henkin, 134 AD3d 529 (1st Dept 2015)

Question presented: Whether a personal injury plaintiff may be compelled to produce photographs privately posted on Facebook and provide authorizations for the disclosure of the plaintiff’s private Facebook messages.

Supreme Court, New York County, among other things, granted defendant’s motion to compel to the extent of directing plaintiff to produce all photographs of plaintiff privately posted on Facebook prior to the accident at issue that she intends to introduce at trial, all photographs of plaintiff privately posted on Facebook after the accident that do not show nudity or romantic encounters, and authorizations for defendant to obtain records from Facebook showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages. The Appellate Division, First Department modified to vacate those portions of the order directing the plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial, and authorizations related to plaintiff’s private Facebook messages, and otherwise affirmed.

November Grants

Matter of Brookford, LLC v New York State Division of Housing and Community Renewal, 142 AD3d 433 (1st Dept 2016)

Question presented: Whether the NYSDHCR properly apportioned income reported on a married couple’s joint tax return after the husband vacated a rent-controlled apartment and entered an assisted living facility because the wife was the only occupant of the apartment.

Supreme Court, New York County, in a proceeding pursuant to CPLR article 78, denied the petition seeking annulment of an 11/19/14 order of respondent New York State Department of Housing and Community Renewal (DHCR) which affirmed, as modified, a prior DHCR order denying petitioner’s application to deregulate a rent controlled apartment and dismissed the proceeding. The Appellate Division, First Department affirmed.

Matter of Castro v Schriro, 140 AD3d 644 (1st Dept 2016)

Question presented: Whether a probationary public employee’s pleadings sufficiently raised an issue as to bad faith or any other improper reason for his termination that would have warranted denial of a pre-answer motion to dismiss.

Supreme Court, New York County, denied the petition seeking to annul respondents’ determination terminating petitioner’s employment as a probationary correctional officer, and granted respondents’ cross motion to dismiss the proceeding.  The Appellate Division, First Department reversed, reinstated the petition and remanded the matter to Supreme Court for further proceedings.

December Grants

Keyspan Gas East Corporation v Munich Reinsurance American, Inc., 143 AD3d 86 (1st Dept 2016)

Question presented:  What is the proper allocation, under the relevant insurance policies, of risk of loss attributable to a continuous harm occurring, in part, during periods when liability insurance was unavailable in the marketplace, and whether the insurance policies at issue contain anti-stacking language requiring an all-sums allocation method.

Supreme Court, New York County, among other things, denied defendant Century Indemnity Company’s motion for partial summary judgment declaring that it is not responsible for any part of the costs of cleanup for periods of time where insurance was unavailable before 1953 and after 1986.  The Appellate Division reversed, granted defendant’s motion for partial summary judgment, and declared that defendant Century Indemnity Company is not responsible for any part of the costs of cleanup for periods of time where insurance was unavailable before 1953 and after 1986.

Rodriguez v City of New York, 142 AD3d 778 (1st Dept 2016)

Question presented: Whether the plaintiff was required to establish the absence of comparative negligence in order to obtain summary judgment on the issue of liability.

Supreme Court, New York County, held that a plaintiff must make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability. The Appellate Division, First Department affirmed.

Vasquez v National Securities Corporation, 139 AD3d 503 (1st Dept 2016)

Question presented: Whether the notice provision of CPLR 908 applies to an action pleaded as a class action but dismissed prior to class certification.

Supreme Court, New York County, granted plaintiff’s motion to give notice of the impending dismissal of the complaint to putative class members pursuant to CPLR 908, and the Appellate Division, First Department affirmed.

Morgan Stanley Mortgage Loan Trust 2006-13ARX v Morgan Stanley Mortgage Capital Holdings LLC, 143 AD3d 1 (1st Dept 2016)

Question presented: Whether the defendant’s alleged breach of a contractual obligation to notify the trustee of a residential mortgage-backed securities trust of defective loans gives rise to damages not governed by the “sole remedies” restrictions in the parties’ agreements, and whether allegations of gross negligence affect the enforceability of contract provisions limiting a party’s liability.

Supreme Court, New York County, among other things, granted defendant’s motion to dismiss the first and second causes of action to the extent they seek damages inconsistent with the terms of the repurchase protocols and the fifth cause of action; App. Div. reversed and denied defendant’s motion.

Gilbane Building Co./TDX Construction Corp. v St. Paul Fire and Marine Insurance Company, 143 AD3d 146 (1st Dept 2016)

Question presented: Whether the additional insured clause in a commercial general liability insurance policy for a building construction project covers only those that have a written contract directly with the named insured.

Supreme Court, New York County, denied defendant Liberty Insurance Underwriters’ motion for summary judgment declaring that plaintiff Gilbane Building Co./TDX Construction Corp., a Joint Venture, is not an additional insured under the policy issued by Liberty to nonparty Samson Construction Company, and declared that plaintiff is an additional insured under the policy. The Appellate Division, First Department reversed, granted defendant Liberty Insurance Underwriters’ motion, and vacated the declaration.

Pesante v Vertical Industrial Development Corp., 142 AD3d 656 (2d Dept 2016)

Question presented: Whether the owner and managing agent of a parking lot may be held vicariously liable for injuries caused when the plaintiff was struck by a remote controlled car in the parking lot, where the lot was patrolled by an independent contractor to ensure a safe environment for visitors, and whether the owner had constructive notice of the allegedly dangerous condition.

Supreme Court, Kings County, among other things, granted that branch of the motion of defendants Vertical Industrial Development Corp. and Rentar Development Corp. which was for summary judgment dismissing the complaint insofar as asserted against them. The Appellate Division, Second Department reversed and denied that branch of the motion of defendants Vertical Industrial and Rentar Development which was for summary judgment dismissing the complaint insofar as asserted against them.

Deutsche Bank National Trust Company v Flagstar Capital Markets Corporation, 143 AD3d 15 (1st Dept 2016)

Question presented: Whether the statute of limitations bars a breach of contract action brought more than six years after the seller made allegedly false representations and warranties regarding the loans underlying residential mortgage-backed securities, and whether the purchaser was entitled to enforcement of a contract provision specifying a set of conditions that would delay a cause of action’s accrual.

Supreme Court, New York County, among other things, granted defendant Quicken Loans Inc.’s motion to dismiss the breach of contract claim as time-barred, and the Appellate Division, First Department affirmed.

From September through December 2016, the First Department granted leave to appeal to the Court of Appeals in 14 cases out of the 19 Appellate Division total leave grants. The Second Department granted leave in 4 cases (3 of which were companion cases), and the Fourth Department granted leave in 1 case.  Next up, the Appellate Division leave grants from January, February, and March.

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