Court of Appeals Leave Grants: September Session Through December Decision Days

For the first half of the New York Court of Appeals 2020-21 argument term, the Court granted leave to appeal in 11 cases. Unlike most years, however, this time the majority came from the upstate Appellate Division departments: 4 came from the First Department, only 1 from the Second Department, 3 from the Third Department, and 3 from the Fourth Department. In most recent years, the vast majority of leave grants have come from the First and Second Departments, with the Third and Fourth Departments lagging far behind. That will be something to watch as the Court considers leave motions in the second half of the term.

Here’s a quick look at the recent cases headed to the Court of Appeals:

September Session

Ace Securities Corp. v DB Structured Prods., Inc., 177 AD3d 493 (1st Dept 2019)

Issue presented: Is the trustee of a residential mortgage-backed securities trust is a “plaintiff” within the meaning of CPLR 205(a) when the prior action was commenced by the trust’s certificate holders?

Holding below: Supreme Court, New York County, granted defendant’s motion to dismiss the complaint, with prejudice, holding that the trustee of a residential mortgage-backed securities trust was not a “plaintiff” for purposes of the 6-month extension of time to commence a new action under CPLR 205(a) where the initial action was commenced by the trust’s certificate holders. The Appellate Division, First Department affirmed based on its prior holding in U.S. Bank N.A. v DLJ Mtge. Capital, Inc. (141 AD3d 431 [1st Dept 2016], affd 33 NY3d 84 [2019]).

Matter of Callen v New York City Loft Bd., 181 AD3d 39 (1st Dept 2020)

Issue presented: Does the New York City Loft Board have the authority to deny a tenant’s request to withdraw an application for the legal conversion of a loft from commercial use to residential use pursuant to the Loft Law (see Multiple Dwelling Law 7-C)?

Holding below: Supreme Court, New York County, granted the tenants’ petitions to annul New York City Loft Board’s determination, which had rejected a proposed settlement agreement between the building owner and residential tenants and remanded the matter for administrative resolution of the tenants’ application for Loft Law coverage. The Appellate Division, First Department modified, holding that the tenants had the right to withdraw their applications for conversion, but once they did, the Loft Board lacked authority to approve or enforce the settlement agreement.

Matter of Mental Hygiene Legal Serv. v Delaney, 176 AD3d 24 (3d Dept 2019)

Issue presented: Is mandamus available to challenge the placement of a developmentally disabled child in hospital emergency room while the child waited for a residential placement? Does the Medicaid Act’s requirement that medical assistance “shall be furnished with reasonable promptness to all eligible individuals” (42 USC § 1396a [a] [8]) give rise to a private right of action? Did the respondent’s failure to provide the child with certain services violate the Americans with Disabilities Act?

Holding below: Supreme Court, Clinton County, dismissed the petitioner’s application to, among other things, challenge the placement of the subject child at the respondent hospital and the services provided by the Office for People with Developmental Disabilities and the Department of Health. The Appellate Division, Third Department affirmed.

Matter of Endara-Caicedo v New York State Dept. of Motor Vehs., 180 AD3d 499 (1st Dept 2020)

Issue presented: Can the refusal of a motorist arrested for operating a motor vehicle while under the influence of alcohol or drugs to submit to a chemical test be used against the motorist in administrative license revocation hearings, even if the chemical test is offered, and the refusal occurs, more than two hours after the motorist’s arrest?

Holding below: Supreme Court, Bronx County, denied the petition to annul the DMV’s determination, which, after a hearing, revoked the petitioner’s license to drive for at least one year and imposed a $500 civil penalty. The Appellate Division, First Department affirmed.

Moore Charitable Found. v PJT Partners, Inc., 178 AD3d 433 (1st Dept 2019)

Issue presented: Does the complaint states a cause of action for negligent supervision?

Holding below: Supreme Court, New York County, granted the corporate defendants’ motion to dismiss the causes of action for fraud based on respondent superior and negligence, and denied the motion as to the cause of action for fraud based on apparent authority, and denied the plaintiff’s request to amend the complaint. The Appellate Division, First Department modified to dismiss the cause of action for fraud based on apparent authority, and otherwise affirmed.

Matter of Miller v Annucci, Appellate Division, Third Department order of Nov. 7, 2019

Issue presented: Did the Appellate Division properly dismissed the appeal as untimely?

Holding below: Supreme Court, Albany County, dismissed the complaint/petition. The Appellate Division, Third Department dismissed the appeal as untimely taken.

October Session

Matter of Johnson v City of New York, 180 AD3d 1134 (3d Dept 2020)

Issue presented: Must an award of workers’ compensation benefits for a schedule of loss of use (SLU) attributable to an injury to one part of a qualifying limb be offset by a prior award for an injury involving a different part of the same qualifying limb?

Holding below: The Workers’ Compensation Board, among other things, ruled that the claimant sustained a 30% schedule loss of use of his left leg and a 0% schedule loss of use of his right leg as a result of a February 2006 accident. The Appellate Division, Third Department affirmed.

Konkur v Utica Academy of Science Charter Sch., 181 AD3d 1271 (4th Dept 2020)

Issue presented: Does Labor Law § 198-b, which prohibits wage kick-backs, provides for a private right of action?

Holding below: After Supreme Court, Oneida County, among other things, denied in part High Way Education, Inc.’s motion to dismiss the complaint against it, the Appellate Division, Fourth Department reversed and dismissed the complaint against High Way Education, Inc. in its entirety because “the legislature did not intend to create a private right of action for violations of Labor Law § 198-b.”

November Session

Hunters for Deer, Inc. v Town of Smithtown, 186 AD3d 682 (2d Dept 2020)

Issue presented: Does Environmental Conservation Law § 11-0931(4)(a)(2), which provides for minimum setback limits for the discharge of a bow and arrow, preempt local municipal codes regulating the same issue?

Holding below: Supreme Court, Suffolk County, denied that branch of the plaintiffs’ motion which sought summary judgment declaring that chapter 160 of the Code of the Town of Smithtown is invalid as applied to the discharge setback of a bow and arrow, and granted that branch of the defendant’s cross motion which was for summary judgment dismissing that part of the complaint. The Appellate Division, Second Department reversed, holding that the local code was preempted, and remitted the matter to Supreme Court for the entry of a judgment declaring that chapter 160 of the Code of the Town of Smithtown is invalid as applied to the discharge setback of a bow and arrow.

Schoch v Lake Champlain OB-GYN, P.C., 184 AD3d 338 (3d Dept 2020)

Issue presented: Was the defendant employer was entitled to receive cash consideration resulting from the demutualization of an insurance fund where the employer purchased the insurance policy and paid all the premiums but where the employee is named as the sole insured on the policy, and is the employee unjustly enriched by the receipt of the cash consideration?

Supreme Court, Saratoga County, issued a declaration in the employer’s favor. The Appellate Division, Third Department reversed, denied the employer’s cross motion for summary judgment, granted the employee’s motion for summary judgment, and declared that the employee is solely entitled to the $74,747.03 cash consideration from Medical Liability Mutual Insurance Company’s demutualization, plus interest for the time the proceeds were in escrow, because the employee was the named insured on the policy.

Bonczar v American Multi-Cinema, Inc., 185 AD3d 1423 (4th Dept 2020), bringing up for review 158 AD3d 1114 (4th Dept 2018)

Issue presented: Is a worker who fails to check the position of a ladder or its locking mechanism before climbing it to perform elevated work the sole proximate cause of his injuries under Labor Law § 240 (1)?

Holding below: After Supreme Court granted the worker partial summary judgment on liability for his Labor Law § 240 (1) claim, the Appellate Division, Fourth Department, with two Justices dissenting, reversed and denied partial summary judgment, holding that the worker did not satisfy his initial burden because he “did not know why the ladder wobbled or shifted, and he acknowledged that he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so.” Following a trial verdict in the defendant’s favor, the Fourth Department affirmed the judgment of dismissal.

December Decision Days

Matter of Kotsones, 185 AD3d 1473 (4th Dept July 17, 2020)

Issue presented: Does a beneficiary’s position of trust with a decedent require an inference of undue influence in disposition of assets in a will?

Holding below: Supreme Court denied the application to admit to probate the December 5, 2012 will of the deceased and invalidated various transactions. The Appellate Division, Fourth Department reversed, granted the application to admit the will to probate, and held that a mere position of trust with the decedent was not enough to trigger an inference of undue influence.

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