The second half of the Court of Appeals’ 2019-2020 term was certainly eventful, with the pandemic looming largest of all. In mid-March, New York shut down in response to COVID-19 and the Court of Appeals shut down with it. Arguments that were scheduled for the spring argument terms were either held virtually, rescheduled, or submitted on the briefs. And the Court’s decisions to grant leave to appeal in new cases took a hit too. Here’s a quick look at the new cases in which the Court of Appeals granted leave, from the beginning of the January Session to the end of June Decision Days last month.
January Session
Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Company, Inc., 172 AD3d 405 (1st Dept 2019)
Issue presented: May a consumer state a cause of action under General Business Law § 349 where the only injury alleged to have resulted from the defendant’s allegedly deceptive business practices is the amount that the consumer paid for the product?
Holding below: Supreme Court, New York County, granted the defendant’s motion to dismiss the complaint because the increased price of a product is not a cognizable injury under section 349. The Appellate Division, First Department affirmed.
February Session
Ditech Financial, LLC v Naidu, 175 AD3d 1387 (2d Dept 2019)
Issue presented: Does a mortgage holder’s execution of a stipulation to discontinue a prior foreclosure action constitute an affirmative act to revoke the holder’s election to accelerate the mortgage, and thereby render a subsequent foreclosure action timely?
Holding below: Supreme Court, Queens County, denied the motion of defendant Naidu to dismiss the complaint insofar as asserted against him as time-barred and granted those branches of the plaintiff’s cross motion for summary judgment on the complaint insofar as asserted against defendant Naidu and for an order of reference. The Appellate Division, Second Department, however, reversed the orders, granted the motion of defendant Naidu to dismiss the complaint insofar as asserted against him as time-barred, and denied as academic those branches of plaintiff’s cross motion for summary judgment on the complaint as asserted against defendant Naidu and for an order of reference. The Second Department held that the stipulation to discontinue the prior foreclosure action did not affirmatively revoke the acceleration of the mortgage because it “was silent on the issue of the revocation of the election to accelerate, and did not otherwise indicate that the plaintiff would accept installment payments from the [defendant].”
Vargas v Deutsche Bank National Trust Company, 168 AD3d 630 (1st Dept 2019)
Issue presented: Did a letter from the mortgage holder’s predecessor-in-interest, which informed the plaintiff that the mortgage debt would be accelerated if he failed to cure his default, accelerate the loan balance and commence the statute of limitations for a foreclosure action, and whether the discontinuance of a prior foreclosure action a sufficient affirmative act to revoke the acceleration?
Holding below: Supreme Court, New York County, upon renewal, denied mortgage holder’s motion to dismiss the complaint and granted the plaintiff’s cross motion for summary judgment declaring plaintiff’s property free and clear of all liens and encumbrances by defendant. The Appellate Division, First Department affirmed, holding that the mortgage holder “was time-barred from commencing a foreclosure action against plaintiff’s mortgaged property because more than six years had passed from the date that the debt on the mortgage was accelerated.” The letter showed a clear intent to accelerate the debt if not satisfied within a time certain, and the plaintiff did not cure the default.
Jean-Paul v 67-30 Dartmouth St. Owners Corp., 174 AD3d 870 (2d Dept 2019)
Issue presented: Does the dismissal of a Chapter 7 bankruptcy proceeding restore a debtor-plaintiff’s capacity or standing to pursue a personal injury action that the debtor-plaintiff failed to list as an asset during the bankruptcy proceeding?
Holding below: Supreme Court, Queens County, among other things, granted that branch of defendant’s motion which was for summary judgment dismissing the complaint because the failure of the debtor deprived her of capacity to pursue the personal injury action. The Appellate Division, Second Department affirmed.
Nunez v Nunez, 175 AD3d 1160 (1st Dept 2019)
Issue presented: Did a triable issue of fact exist as to the fault of the defendant driver when the car he was driving was struck in the right rear tire, causing the accident?
Holding below: Supreme Court, New York County, denied the motion of defendants Danny Budden, Clark Road Transport, Inc. and Ryder Truck Rental Canada for summary judgment dismissing the complaint as against them. The Appellate Division, First Department reversed and granted the motion for summary judgment, holding that photographic evidence demonstrated that they could not have been at fault. One Justice dissented, and would have held that triable issues of fact existed as to the parties’ respective liabilities.
March Session
J.P. Morgan Securities, Inc. v Vigilant Insurance Company, 166 AD3d 1 (1st Dept 2018)
Issue presented: Was the disgorgement payment made to the Securities and Exchange Commission an insurable loss?
Holding below: Supreme Court, New York County, awarded plaintiff judgment against certain defendants. The Appellate Division, First Department reversed, denied plaintiffs’ motion for summary judgment, granted defendants’ motion for summary judgment declaring that plaintiffs are not entitled to coverage for the disgorgement payment, and so declared.
Matter of Verneau v Consolidated Edison Co. of New York, Inc., 174 AD3d 1022 (3d Dept 2019)
Issue presented: Did liability for a workers’ compensation death claim transfer to the Special Fund for Reopened Cases under Workers’ Compensation Law 25-a?
Holding below: The Appellate Division, Third Department reversed a decision of the Workers’ Compensation Board, held that “the imposition of liability on the Special Fund in this case is not precluded by the . . . statutory amendment [to section 25-a], given that liability was transferred to the Special Fund in December 2011, well before the January 1, 2014 closure date,” and remitted to the Board for further proceedings. The Third Department held that the Court of Appeals’ decision in American Economy Ins. Co. v State of New York (30 NY3d 136 [2017]) was not inconsistent, because “the Court did not specifically state or otherwise suggest that Workers’ Compensation Law § 25-a (1-a) applied to foreclose the Special Fund from continuing to be liable for consequential death claims arising where a decedent had an established workers’ compensation claim for which the Special Fund was already liable prior to January 1, 2014.”
Matter of Rexford v Gould Erectors & Riggers, Inc., 174 AD3d 1026 (3d Dept 2019)
Issue presented: Did liability for a workers’ compensation death claim transfer to the Special Fund for Reopened Cases under Workers’ Compensation Law 25-a?
Holding below: The Appellate Division, Third Department reversed a decision of the Workers’ Compensation Board, held that “the Special Fund is liable for claimant’s consequential death claim inasmuch as liability had been transferred to it in 1997, well before the January 1, 2014 closure date set forth in Workers’ Compensation Law § 25-a (1-a),” and remitted to the Board for further proceedings.
Sassi v Mobile Life Support Services, Inc., 176 AD3d 886 (2d Dept 2019)
Issue presented: Did the plaintiff sufficiently state a claim for employment discrimination under the New York State Human Rights Law?
Holding below: Supreme Court, Duchess County, granted the defendant’s motion to dismiss the complaint. The Appellate Division, Second Department affirmed.
Matter of Zielinski v Venettozzi, 177 AD3d 1047 (3d Dept 2019)
Issue presented: Whether substantial evidence supports the determination finding petitioner guilty of violating a prison disciplinary rule.
Holding below: The Appellate Division, Third Department, upon transfer, confirmed the determination finding the petitioner guilty of violating a prison disciplinary rule and dismissed the petition.
June Decision Days
Ninivaggi v County of Nassau, 177 AD3d 981 (2d Dept 2019)
Issue presented: Does the assumption of the risk doctrine preclude liability against a school district for an injury to an infant plaintiff playing on an irregular playing field?
Holding below: Supreme Court, Nassau County granted the motion of the defendant Merrick Union Free School District for summary judgment dismissing the complaint insofar as asserted against it based on the infant plaintiff’s assumption of the risk. The Appellate Division, Second Department affirmed.
And that’s it. Through the first four months of the 2019-2020 Court of Appeals term, the Court granted only 5 cases: 2 from the Second Department, 2 from the Third Department, and 1 from the First Department. Now, after the close of the term, the total is up to 16: 6 from the Second Department, 5 from the First Department, 5 from the Third Department, and none from the Fourth Department.
Only 16 leave grants in an entire year. That’s an incredibly low grant rate. But, unfortunately, it’s not out of the norm in recent years. Another new term starts in a few weeks, and as they say, there’s always next year!
New York Appeals 