The Court of Appeals January, February, and March 2018 Session Leave Grants

Next up as we head toward the start of the 2018-19 Court of Appeals term are the cases in which the Court granted leave to appeal from the January, February, and March 2018 sessions. I previously previewed the September session and October, November, and December session leave grants.

January Leave Grants

Arrowhead Capital Finance, Ltd. v Cheyne Specialty Finance Fund L.P., 154 AD3d 523 (1st Dept 2017)

Question presented: Whether failure of plaintiff’s counsel to maintain an in-state office at the time action was commenced, in violation of Judiciary Law § 470, renders the action a nullity and requires dismissal of the action without prejudice.

Supreme Court, New York County, dismissed the complaint with prejudice as against defendant Cheyne Specialty Finance Fund General Partner and without prejudice as against defendant Cheyne Specialty Finance Fund. The Appellate Division, First Department affirmed.

Matter of Mason H., 154 AD3d 1129 (3d Dept 2017)

Question presented: Whether the Broome County Department of Social Services failed to meet its burden of proof that the father abandoned the subject child, where its only witness addressed the father’s failure to communicate with the child, but not whether the father had any direct contact with the child.

Family Court, Broome County, granted DSS’s application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate the subject child to be abandoned by the father, and terminated the father’s parental rights. The Appellate Division, Third Department affirmed.

February Leave Grants

Matter of Eighth Judicial District Asbestos Litigation (Terwilliger v Beazer East, Inc.), 150 AD3d 1617 (4th Dept 2017)

Question presented: In a purported products liability action where the decedent suffered injuries from exposure to asbestos and coke oven emissions while employed at the Bethlehem Steel plant, whether the coke oven batteries constructed at the Bethlehem Steel plant were “products” subject to products liability theories rather than structures resulting from performance of a contract for construction services.

Supreme Court, Erie County, denied the motion of defendant Honeywell International, Inc., successor in interest to the Wilputte Coke Oven Division of Allied Chemical Corporation (Honeywell), for summary judgment dismissing the complaint against it. The Appellate Division, Fourth Department reversed, granted defendant Honeywell’s motion for summary judgment and dismissed the complaint against it.

Matter of Madison County Industrial Development Agency v State of New York Authorities Budget Office, 151 AD3d 1532 (3d Dept 2017)

Question presented: Whether an industrial development agency had authority to form a local development corporation as a subsidiary under General Municipal Law § 858’s “necessary or convenient” clause.

Supreme Court, Albany County, dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents refusing to recognize petitioner Madison Grant Facilitation Corporation as a subsidiary of petitioner Madison County Industrial Development Agency and requiring petitioner Madison Grant Facilitation Corporation to file separate budget, annual and audit reports.  The Appellate Division, Third Department affirmed.

Matter of Widrick (Carpinelli), 155 AD3d 1564 (4th Dept 2017)

Question presented: Whether the Appellate Division properly concluded that only petitioner’s union, and not petitioner individually, had the right to demand arbitration of a grievance arising from a dispute involving petitioner’s employment.

Supreme Court, Lewis County, denied respondents’ motion to dismiss the petition and granted the petition to compel arbitration. The Appellate Division, Fourth Department reversed, granted the motion, and dismissed the petition.

March Leave Grants

Matter of Retail Energy Supply Assn. v Public Service Commn. of State of N.Y., 152 AD3d 1133 (3d Dept 2017)

Matter of National Energy Marketers Assn. v New York State Public Service Commn., 152 AD3d 1122 (3d Dept 2017)

Questions presented: In a challenge to “Order Resetting Retail Energy Markets and Establishing Further Process,” which imposed various requirements on new and renewal contracts between energy service companies and mass market customers, whether the New York State Public Service Commission has the authority to impose rate-making limitations on energy service companies and whether energy service companies have a property interest in continued access to utility systems, and thus are entitled to procedural due process.

Supreme Court, Albany County, among other things, partially granted petitioners’ application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent resetting retail energy markets and establishing further process. The Appellate Division, Third Department affirmed.

 

Matter of Clark v Villegas, 153 AD3d 437 (1st Dept 2017)

Questions presented: Whether the Appellate Division properly granted writ of prohibition to prohibit enforcement of a Supreme Court order that directed Department of Corrections and Community Supervision to credit respondent with 1,282 days of jail time and whether CPLR article 78 proceeding is proper vehicle to challenge jail time credit calculation.

The Appellate Division, First Department granted a CPLR article 78 petition to prohibit the enforcement of an order of Supreme Court, Bronx County, which ordered respondent New York State Department of Corrections and Community Supervision to credit respondent Dewayne Robinson with 1,282 days of jail time.

 

Up through March, the Court of Appeals had granted 17 cases in total: 3 from the First Department, 1 from the Second Department, 8 from the Third Department, and 5 from the Fourth Department. That’s an interesting trend toward more cases being granted from the upstate Departments, at least through the March 2018 session. We’ll see if it continues through the end of the 2017-18 Court of Appeals term.

 

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