The Appellate Division April, May, and June 2018 Leave Grants

The Appellate Division rounded out the 2017-18 term with only two more leave grants. That makes only 13 Appellate Division leave grants for the entire 2017-18 term, which is well off the mark of 38 grants during the 2016-17 term.  So what explains the change?  Could it be that Chief Judge DiFiore quietly told the Appellate Division Justices to stop granting leave to appeal to the Court of Appeals because the Court wants to control its own docket? I certainly hope not (and I have thoughts on that that are best left for a different time). But such a huge drop off in Appellate Division leave grants must have some explanation.

In total for the 2017-18 term, the Appellate Division granted leave in 6 cases from the Second Department, 5 from the First Department, 2 from the Fourth Department, and none from the Third Department. That mostly follows the pattern from last year that most Appellate Division leave grants come from the downstate departments, while the upstate departments are more stingy in sending cases directly to the Court of Appeals.

Here’s a quick look at the two new Appellate Division leave grants from April, May, and June 2018.

April Appellate Division Leave Grants

Kuzmich v 50 Murray Street Acquisition LLC, 157 AD3d 556 (1st Dept 2018)

Question presented: Whether the tenants’ apartments in a building receiving Real Property Tax Law § 421-g tax benefits are subject to rent stabilization or should have been deregulated under the luxury vacancy control provisions of Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-504.2(a).

Supreme Court, New York County, among other things, denied the landlord’s motion for summary judgment, granted the tenants’ cross motion for partial summary judgment, declared that the tenants’ apartments are subject to rent stabilization, and ordered that a special referee be designated to hear and determine the amount of the rent overcharges and the amount of attorneys’ fees and costs incurred by the tenants in litigating this action. The Appellate Division, First Department reversed, granted the landlord’s motion for summary judgment to the extent of declaring that the tenants’ apartments were properly deregulated and are not subject to rent stabilization, denied the tenants’ cross motion, vacated the orders regarding the special referee, and remanded the matter for further proceedings.

159 MP Corp., et al. v Redbridge Bedford, LLC, 160 AD3d 176 (2d Dept 2018)

Question presented: In an action for a judgment declaring that two commercial leases are in full force and effect and that the plaintiffs are not in violation of their obligations under the leases, and seeking a Yellowstone injunction to prevent landlord from terminating leases or commencing summary proceeding for eviction, whether written leases negotiated at arm’s length by commercial tenants may include a waiver of the right to declarative relief that is enforceable at law, or whether such a waiver is void and unenforceable as a matter of public policy.

Supreme Court, Kings County, denied plaintiffs’ motion for a Yellowstone injunction and granted defendant’s cross motion for summary judgment dismissing the complaint. The Appellate Division, Second Department affirmed.


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