The Appellate Division Summer Leave Grants

While the Court of Appeals takes most of the summer off, its docket still grows. That’s because the Appellate Division is still working away on decisions, and granting leave to appeal to the Court of Appeals in cases it thinks should be heard.  As was seen during the Court of Appeals’ 2016-17 term, the Appellate Division often grants leave to appeal more frequently than does the Court itself.  Here’s what the Appellate Division was up to over the summer.

July Appellate Division Leave Grants

AMBAC Assurance Corporation v Countrywide Home Loans, Inc., 150 AD3d 490 (1st Dept 2017)

Question presented: Under what circumstances may a court find that two entities have completed a de facto merger such that the successor entity may be held liable for fraud and breach of contract by the prior entity, and whether the Court properly found issues of fact precluded dismissal of claims that the asset sale transactions here were coordinated with the goal of combining BAC’s and Countrywide’s mortgage businesses while avoiding Countrywide’s liabilities so as to benefit Countrywide’s former shareholders at the expense of its creditors.

Supreme Court, New York County, granted in part and denied in part plaintiffs’ and the Countrywide defendants’ respective motions for summary judgment. The Appellate Division, First Department modified, finding issues of fact that required denial of summary judgment, and otherwise affirmed.

Gerrish v 56 Leonard LLC, 147 AD3d 511 (1st Dept 2017)

Question presented: Where plaintiff was fabricating steel rebars at an off-site temporary project facility in the Bronx for a construction project located in Manhattan, whether plaintiff was working in a construction area within the meaning of Labor Law § 241(6), and whether a question of fact exists as to involvement of defendants property owner and construction manager with off-site temporary construction facility.

Supreme Court, New York County, granted the motion of defendants 56 Leonard LLC and Lend Lease (US) Construction LMB, Inc. to dismiss plaintiff’s Labor Law § 241(6) claim against them. The Appellate Division, First Department reversed and denied the motion.

Sasson v TLG Acquisition LLC, 150 AD3d 459 (1st Dept 2017)

Question presented: Whether the Appellate Division properly applied the law of the case doctrine in electing not to re-examine its prior determination interpreting a disputed contract provision, whether defendants raised triable issues of fact precluding summary judgment, whether the trial court properly awarded attorneys’ fees pursuant to the terms of the parties’ transactional documents, and whether the trial court properly calculated interest due to plaintiffs.

Supreme Court, New York County, among other things, granted plaintiffs’ motion for summary judgment and directed the issue of attorneys’ fees to be heard by a referee. Supreme Court then, in a separate order, granted plaintiffs’ motion for summary judgment, severed plaintiffs’ claim for costs to be determined by a referee, and awarded judgment in favor of plaintiffs. The Appellate Division, First Deparmtment affirmed the judgment.

August Appellate Division Leave Grants

Nicke v Schwartzapfel Partners, P.C., 148 AD3d 1168 (2d Dept 2017)

Question presented: Whether Chapter 13 bankruptcy debtors had capacity to maintain a legal malpractice action against the law firm that represented the bankruptcy trustee in a personal injury action asserted on behalf of one of the plaintiffs, and whether collateral estoppel barred plaintiff from commencing legal malpractice action.

Supreme Court, Nassau County, granted those branches of defendants’ separate motions to dismiss the complaint insofar as asserted against each of them.  The Appellate Division, Second Department reversed and denied the motions.

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