Court of Appeals Leave Grants for September-December Decision Days 2019

Happy New Year! It’s now 2020 and the Court of Appeals is back in session. It’s time to check in on the cases in which the Court of Appeals has granted leave to appeal from the beginning of the 2019-2020 term.

September 2019 Session

Daniels v New York City Transit Authority, 171 AD3d 601 (1st Dept 2019)

Issue: Whether the trial court abused its discretion by allowing expert witness testimony on non-mandatory “industry standards” and by admitting evidence of data concerning accidents at other subway stations.

Appellate Division Holding: The First Department held that the trial court properly allowed the expert testimony regarding gap standards promulgated by the American Public Transit Association and the Public Transportation Safety Board because they were generally accepted in the industry. The Court also affirmed the trial court’s decision to admit the data concerning accidents at other subway stations.

Matter of Juarez v New York State Office of Victim Services, 169 AD3d 52 (3d Dept 2019)

Issue: Whether New York State Office of Victim Services exceeded its authority under Executive Law article 22 to adopt regulations for the approval of crime victims’ counsel fee requests by amending its regulations to provide that such awards may be considered only for fees incurred in successful administrative reconsideration reviews and judicial review (9 NYCRR 525.9 [a],[c]).

Appellate Division Holding: The Third Department annulled the amended regulations as in excess of authority, and remitted the matter to the Office of Victim Services for reconsideration of the fee requests.

November 2019 Session

Matter of Estate of Youngjohn v Berry Plastics Corp., 169 AD3d 1237 (3d Dept 2019)

Issue: Whether 2009 amendments to the Workers’ Compensation Law authorizing full payment of Schedule Loss Use (SLU) awards in one lump sum at the request of the injured employee altered the rule that where an injured employee dies without leaving a surviving spouse, child under 18 years old, or dependent, only that portion of claimant’s SLU award that had accrued at the time of death is payable to the claimant’s estate, along with reasonable funeral expenses.

Appellate Division Holding: The Third Department held that the 2009 amendments did not alter the longstanding rule that the claimant may only recover that portion of the SLU award that had accrued at the time of his death, and thus modified the Workers Compensation Board’s award that had limited the claimant’s recovery only to reasonable funeral expenses.

December 2019 Decision Days

Aybar v Aybar, 169 AD3d 137 (2d Dept 2019)

Issue: Whether, following the United States Supreme Court decision in Daimler AG v Bauman (571 US 117 [2014]), a foreign corporation may still be deemed to have consented to the general jurisdiction of New York courts by virtue of having registered to do business in New York and appointed a local agent for the service of process.

Appellate Division Holding: The Second Department held that a foreign corporation cannot be deemed to have consented to general jurisdiction by mere presence in New York.

Noteworthy: #AppellateTwitter’s Sean Marotta is counsel of record to one of the parties in Aybar. Looking forward to the briefs in the Court of Appeals!

Cole v Cole, 172 AD3d 680 (2d Dept 2019)

Issue: Whether the trial court properly awarded physical custody of the children of the marriage to the plaintiff and whether the Appellate Division properly directed the parties to contribute pro rata to the children’s future unreimbursed health care expenses.

Appellate Division Holding: The Second Department held that the trial court’s custody award was supported by the record, but that it should have required the parties to contribute pro rata to the children’s future unreimbursed health care expenses under Domestic Relations Law § 240 [1-b] [c] [5].

 

Through the first four months of the term, the Court has maintained its sleepy grant rate, granting only 5 cases, 2 from the Second Department, 2 from the Third Department, and 1 from the First Department. The pace should pick up in the Spring, especially as we head toward the end of the term and Decision Days in June.

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