The Appellate Division August, September, and October 2017 Leave Grants

The Court of Appeals docket is also filled with cases that the Appellate Division found interesting enough to grant leave on its own. It’s a unique aspect of New York’s appellate jurisdiction that allows the intermediate appellate courts to have a say in what cases the Court of Appeals hears. For a more in depth look at the process through which the Appellate Division grants leave to appeal, you can read about it here.

Here’s a quick look at the Appellate Division’s leave grants from the 2017-18 term.

August Appellate Division Leave Grants

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

Question presented: Whether plaintiffs, chapter 13 bankruptcy debtors, had capacity to maintain legal malpractice action against a 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 the plaintiff from commencing the 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, and then granted leave to appeal.

Schnapp v Miller’s Launch, Inc., 150 AD3d 32 (1st Dept 2017)

Question presented: In a case where the Plaintiff, a maritime surveyor, was injured while attempting to board a vessel by jumping from the bulkhead to the vessel’s deck, whether questions of fact exist as to whether defendant vessel owner violated the turnover duty and duty to intervene under the Longshore and Harbor Workers’ Compensation Act.

Supreme Court, New York County, granted the defendant’s motion for summary judgment dismissing the complaint. The Appellate Division, First Department reversed and denied the motion, and then granted leave to appeal.

Matter of New York Civ. Liberties Union v New York City Police Dept., 148 AD3d 642 (1st Dept 2017)

Question presented: Whether Civil Rights Law § 50-a exempts from disclosure written disciplinary decisions of the New York City Police Department, despite that the disciplinary trials are open to the public and redaction of identifying information is available, and whether respondents’ previous disclosure of other redacted records waives any objection to redacting the subject disciplinary decisions.

Supreme Court, New York County, adhering to orders of the same court (10/16/12, 7/29/14 and 10/2/14), granted, to a limited extent, the petition brought pursuant to CPLR article 78 seeking to compel respondents to disclose certain records pursuant to the Freedom of Information Law. The Appellate Division, First Department reversed, denied the petition, and dismissed the proceeding. The Court then granted leave to appeal.

September Appellate Division Leave Grants

Lobello v New York Central Mutual Fire Insurance Co., 152 AD3d 1206 (4th Dept 2017)

Question presented: Whether the two-year limitations period set forth in the homeowner’s insurance policy at issue ran from the date of burglary or from the date the insurer denied coverage for the loss

Supreme Court, Oswego County, among other things, granted in part defendant’s cross motion for summary judgment. The Appellate Division, Fourth Department modified by granting that part of plaintiff’s motion seeking to dismiss defendant’s affirmative defense of expiration of the two-year limitations period set forth in the policy, denying defendant’s cross motion in its entirety, and reinstating the complaint with respect to the loss of 9/29/09, and as so modified, affirmed.

Erie Insurance Exchange v J.M. Pereira & Sons, Inc., 151 AD3d 1879 (4th Dept 2017)

Question presented: Whether summary judgment was properly denied to plaintiff because the plaintiff failed to establish, as a matter of law, that a certain exception to Exclusion G in the subject business catastrophe liability policy does not apply.

Supreme Court, Monroe County, insofar as appealed from, denied plaintiff’s motion for summary judgment. The Appellate Division, Fourth Department affirmed.

October Appellate Division Leave Grants

Andrew Carothers, M.D., P.C. v Progressive Insurance Co., 150 AD3d 192 (2d Dept 2017)

Questions presented: What are the elements necessary to establish the defense of fraudulent incorporation recognized in State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]) where a payment was withheld by the insurance carrier for medical services provided by a professional corporation which has been “fraudulently incorporated” to allow nonphysicians to share in its ownership and control, and whether an adverse inference is available for nonparties’ invocation of Fifth Amendment privilege against self-incrimination.

Civil Court of the City of New York, Richmond County, upon a jury verdict, found in favor of defendant and against plaintiff, dismissing the complaint. The Appellate Term affirmed, and the Appellate Division, Second Department affirmed.

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