The 2016-17 Appellate Division Leave Grants: April, May, and June

With the August Election Session now upon us, and the September Session arguments starting up just after Labor Day, it’s a good time to wrap up my preview of the 2017-18 Court of Appeals term. This is the fourth part in the series on the cases in which the Appellate Division granted leave to appeal.

April Grants

Matter of Bolt v New York City Department of Education, 145 AD3d 450 (1st Dept 2016)

Question presented: Where teacher allegedly assisted students on a statewide exam, whether the arbitrator’s penalty of termination was excessive.

Supreme Court, New York County, granted the petition to vacate an arbitrator’s opinion and award terminating petitioner’s employment with respondent based on her misconduct, and denied respondent’s cross motion to dismiss the petition. The Appellate Division modified, by confirming the arbitrator’s determination that petitioner is guilty as charged in specifications 2 and 3(a), (b), (c) and (d), and remanded the matter to respondent for imposition of a lesser penalty, and as so modified, affirmed.

Stega v New York Downtown Hospital, 148 AD3d 21 (1st Dept 2017)

Question presented: Whether statements made by defendants to a Food and Drug Administration investigator during the course of an investigation into the hospital’s institutional review board are protected by an absolute privilege in an action for defamation.

Supreme Court, New York County, denied the motion of defendants New York Downtown Hospital and Stephen G. Friedman, M.D. to dismiss plaintiff’s defamation cause of action as asserted against them. The Appellate Division reversed and granted the motion to dismiss the complaint as against New York Downtown Hospital and Stephen G. Friedman, M.D.

U.S. Bank National Association v Greenpoint Mortgage Funding, Inc., 147 AD3d 79 (1st Dept 2016)

Question presented: Whether a breach notice is required before commencing a “put-back” action involving residential mortgage backed securities when the underlying contract claim is based on defendant’s independent discovery or knowledge of nonconforming mortgages, and the demand requirement is contained within accrual clause of loan sale agreement, and whether a late breach notice can relate back in time to the commencement of the underlying action in order to avoid dismissal.

Supreme Court, New York County, among other things, granted defendant’s motion to dismiss the breach of contract claim to the extent the claim is based upon cure demands made on defendant, and denied the motion to dismiss that claim to the extent it is based upon allegations of defendant’s independent discovery of breaches. The Appellate Division affirmed.

International Union of Painters & Allied Trades, District Council No. 4 v New York State Department of Labor, 147 AD3d 1542 (4th Dept 2017)

Question presented: Whether, under Labor Law § 220(3-e), apprentices who are registered individually under a bona fide apprenticeship may work and be paid as apprentices even if the work they are performing is not work in the same trade or occupation as their apprenticeship program.

Supreme Court, Erie County, declared that the New York State Department of Labor’s determination that the work in question is that of the ironworkers and not of the glaziers is not unreasonable or arbitrary or capricious, and granted defendants’ motion for summary judgment dismissing the complaint. The Appellate Division reversed, denied defendants’ motion, reinstated the complaint, granted plaintiffs’ cross motion for summary judgment, and granted judgment in favor of plaintiffs to the extent of declaring that (1) Labor Law §§ 220(3)(a), (b) and (3-e) apply to glazier apprentices enrolled in the DC4 Glazier Apprenticeship Program, and (2) glazing contractors may compensate apprentices registered and enrolled in the DC4 Glazier Apprenticeship Program in accordance with the applicable apprentice rates posted by defendant New York State Department of Labor on taxpayer financed projects.

May Grants

Matter of The Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan; Matter of Daisy Wright v Jewish Home Lifecare, Manhattan, 146 AD3d 576 (1st Dept 2017)

Question presented: Whether respondent Department of Health took the requisite “hard look” under the State Environmental Quality Review Act at the proposed project’s anticipated adverse environmental impacts, including noise and hazardous material impacts, and provided a “reasoned elaboration” of its basis for approving the project, including the remedial measures to be employed to mitigate adverse impacts.

Supreme Court, New York County, granted the petitions seeking to annul a Findings Statement issued by respondent New York State Department of Health (DOH), approving respondent Jewish Home Lifecare, Manhattan’s application to construct a 20- story nursing home facility in Manhattan, and remitted the matter to DOH for preparation of an amended Final Environmental Impact Statement to reconsider the findings on the issues of noise and hazardous materials. The Appellate Division reversed, denied the petitions, reinstated the Findings Statement, and dismissed the CPLR article 78 proceeding.

Clement v Durban, 147 AD3d 39 (2nd Dept 2016)

Question presented: Whether the requirements of CPLR 8501(a) and 8503 that nonresident plaintiffs maintaining lawsuits in New York courts post security for the costs for which they would be liable if their lawsuits were unsuccessful violate the Privileges and Immunities Clause of the United States Constitution (US Const, art IV, § 2), or the Due Process and Equal Protection Clauses.

Supreme Court, Kings County, granted defendants’ motion pursuant to CPLR 8501(a) and 8503 to direct plaintiff to post security for costs in the amount of $500, and the Appellate Division affirmed.

Matter of Ruth Joanna O. O., 149 AD3d 32 (1st Dept 2017)

Question presented: Whether a preponderance of the evidence supports the finding that the mother’s untreated mental condition exposed the subject child to risk of imminent harm and that mother therefore neglected the child.

Family Court, Bronx County, determined that mother neglected the subject child, and the Appellate Division affirmed.

Matter of Lisa T. v King E. T., 147 AD3d 670 (1st Dept 2017)

Question presented: Whether Family Court erred in imposing an order of protection upon a finding that respondent willfully violated two temporary orders of protection, and whether the proof was sufficient to show a violation of the temporary orders of protection.

Family Court, Bronx County, among other things, found that respondent willfully violated two temporary orders of protection and thereafter, issued a one-year order of protection against respondent. The Appellate Division affirmed.

Matter of Beatty v City of New York, 148 AD3d 413 (1st Dept 2017)

Question presented: Where teacher submitted time sheets falsely stating that she had provided instruction to a disabled student over a two-month period, whether the arbitrator’s penalty of termination shocks the conscience.

Supreme Court, New York County, granted respondents’ cross motion to deny the petition seeking to vacate a penalty imposed in the arbitration award, and dismissed the proceeding brought pursuant to CPLR article 75. The Appellate Division reversed, granted the petition, and remanded the matter to respondent New York City Department of Education for imposition of a lesser penalty.

Scavetta v Wechsler, 149 AD3d 202 (1st Dept 2017)

Question presented: Whether a negligence claim may be asserted against a dog owner who attached the dog’s leash to unsecured bike rack, which was put into motion when the dog fled and which eventually struck plaintiff, causing injuries.

Supreme Court, New York County, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for summary judgment on the issue of liability.  The Appellate Division affirmed.

Matter of New York City Asbestos Litigation (Juni v A.O. Smith Water Products Company),  148 AD3d 233 (1st Dept 2017)

Question presented: Whether there was a sufficient “scientific expression” of plaintiff’s exposure to asbestos in toxic tort case brought by auto mechanic afflicted with mesothelioma after more than 25 years of working in two garages which serviced vehicles manufactured by defendant Ford Motor Company to support the jury’s verdict in plaintiff’s favor

Supreme Court, New York County, granted defendant’s motion to set aside the jury verdict in favor of plaintiff and set aside the verdict in its entirety. Supreme Court thereafter, awarded judgment in favor of defendant Ford Motor Company, and the Appellate Division affirmed.

Matter of New York City Asbestos Litigation (Brown v Bell & Gossett Company), 146 AD3d 461 (1st Dept 2017)

Question presented: Whether the evidence at trial established that defendant had the authority to control the activity that caused plaintiff’s injury, namely, the application of asbestos-containing materials.

Supreme Court, New York County, granted defendant Consolidated Edison’s posttrial motion to set aside the verdict against it and direct that judgment be entered in its favor dismissing the complaint against it and thereafter, upon renewal and reargument, adhered to the determination. The Appellate Division reversed, denied the posttrial motion, reinstated the verdict as against Consolidated Edison, and granted a new trial on damages for loss of consortium unless plaintiff stipulates to reduce the loss of consortium verdict to $360,000 and to entry of a judgment in accordance therewith.

June Grants

Only the Court of Appeals granted leave to appeal in June.  The Appellate Division did not issue any leave grants.

In total, for the 2016-17 term, the Appellate Division granted leave to appeal to the Court of Appeals in 38 cases.  Of the 38, 30 leave grants came from the First Department, 5 were from the Second Department, 2 from the Fourth Department, and just one from the Third Department.  To put that in perspective, the Court of Appeals itself granted leave in 27 cases last term.  So, the First Department out-granted the Court of Appeals on its own.  Moral of the story, if you really want leave to appeal from the Appellate Division, your best chance is in a commercial case in New York City.