Court of Appeals Leave Grants: January 2021 Session to June 2021 Decision Days

The Court of Appeals is back in session for the start to the 2021-22 argument term. With two new Judges on the bench, it’s time to take a quick look at the cases in which the Court has granted leave to appeal, and will be hearing at the upcoming argument sessions.

From the January 2021 session to June Decision Days, the last before Judge Stein’s retirement from the bench, the Court of Appeals granted leave in 13 cases: 3 from the First Department, 7 from the Second Department, 2 from the Third Department, and just 1 from the Fourth Department. The cases involve a range of issues, including over the real property tax laws, insurance, workers’ compensation, benefits for disabled firefighters, and whether habeas corpus lies to free animals from captivity.

Together, with the leave grants from the September 2020 session through the December Decision Days, the Court granted leave to appeal in a total of 24 cases. The Second Department led the way with 8 leave grants, with the First Department in a close second with 7. The Third Department had 5 grants, and the Fourth Department was last with just 4. The 24 total leave grants during the 2020-21 term is up from the 16 grants the Court of Appeals issued during the 2019-20 term, back in line with the 25 total leave grants the Court issued during the 2018-19 term.

There’s a lot to look forward to. Let’s take a look at the newest cases headed to the Court of Appeals.

January Session

Columbia Memorial Hospital v Hinds, 188 AD3d 1337 (3d Dept 2020)

Issue presented: Is an employer 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?

Holding below: Supreme Court, Columbia County granted defendant’s motion to dismiss the complaint. The Appellate Division, Third Department affirmed.

February Session

Matter of Koegel, 184 AD3d 764 (2d Dept 2020)

Issue presented: Can an acknowledgement that accompanies a nuptial agreement which does not comply with Domestic Relation Law § 236(B)(3) be cured by extrinsic evidence?

Holding below: Surrogate’s Court, Westchester County held that extrinsic evidence from the notary who witnessed the signing of the acknowledgement could remedy the defect. The Appellate Division, Second Department affirmed.

Reis v J.B. Kaufman Realty Co., LLC, 181 AD3d 740 (2d Dept 2020)

Issue presented: Whether a letter agreement with a commercial lease renewal was an unenforceable agreement to agree

Holding below: Supreme Court, Queens County denied defendant summary judgment declaring that a commercial lease had expired, because a question of fact existed whether a letter agreement had extended the lease. The Appellate Division, Second Department reversed, and granted defendant summary judgment, holding that the letter agreement was an unenforceable agreement to agree.

March Session

Matter of Brookdale Physicians’ Dialysis Assoc., Inc. v Department of Fin. of the City of N.Y., 178 AD3d 443 (1st Dept 2019)

Issue presented: Does a building owned by a not-for-profit organization, but leased to a for-profit corporation, qualify for tax exempt status under Real Property Tax Law § 420-a?

Holding below: Supreme Court, New York County, annulled the NYC Department of Finance’s determination that denied the not-for-profit corporation’s application for an exemption from real property taxation, holding that the building was still entitled to the exemption. The Appellate Division, First Department affirmed.

Matter of Liuni v Gander Mtn., 188 AD3d 1403 (3d Dept 2020)

Issue presented: Must an award of workers’ compensation benefits for a schedule of loss of use 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 ruled that the claimant was entitled to a 5 percent schedule loss of use of his left arm. The Appellate Division, Third Department affirmed.

April/May Session

Matter of Dieffenbacher v Jackson, 189 AD3d 710 (1st Dept 2020)

Issue presented: Does the petitioner’s guilty plea in satisfaction of a 2018 indictment bar on statutory double jeopardy grounds his subsequent prosecution for similar alleged crimes arising out of the same investigation?

Holding below: The Appellate Division, First Department denied the petitioner’s CPLR article 78 petition seeking prohibition barring the subsequent prosecution and dismissed the proceeding.

Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 187 AD3d 745 (2d Dept 2020)

Issue presented: Are the procedures implemented by a public employer for terminating a public employee under Civil Service Law § 71 subject to mandatory negotiation under the Public Employees’ Fair Employment Act (known as the Taylor Law)?

Holding below: Supreme Court, Nassau County upheld a determination of the New York State Public Employment Relations Board that held the procedures for terminating an employee under Civil Service Law § 71 were a mandatory subject of bargaining. The Appellate Division, Second Department reversed, holding instead that the Legislature and Department of Civil Service had already specified the procedures for termination of an employee under section 71. The parties thus were bound by those procedures, and they were not a proper subject of collective bargaining.

Matter of Nonhuman Rights Project, Inc. v Breheny, 189 AD3d 583 (1st Dept 2020)

Issue presented: Does the common-law writ of habeas corpus lies on behalf of an elephant, or any other animal?

Holding below: Supreme Court, Bronx County, granted respondent’s motion to dismiss the petition for a writ of habeas corpus. The Appellate Division, First Department affirmed, holding that the writ of habeas corpus did not lie.

Note: This leave grant follows through on Judge Eugene Fahey’s concurrence in the denial of leave to appeal from a prior appeal presenting the same issue. Read more about Judge Fahey’s separate writing in that case, which is the only time the Court of Appeals has issued a separate opinion addressing a motion before the Court, here.

Matter of Borelli v City of Yonkers, 187 AD3d 897 (2d Dept 2020)

Issue presented: Are retired disabled firefighters and fire officers entitled to compensation for night differential, check-in pay, and holiday pay under General Municipal Law § 207-a(2)?

Holding below: Supreme Court, Westchester County, upheld the City’s determination to exclude from the supplemental benefits paid to the disabled firefighters pursuant to General Municipal Law § 207-a(2) certain compensation paid to active firefighters for night differential, check-in pay, and holiday pay. The Appellate Division, Section Department affirmed.

Matter of Alvarez v Annucci, 186 AD3d 704 (2d Dept 2020)

Issues presented: Does the residency restriction of the Sexual Assault Reform Act (SARA) apply to sex offenders on postrelease supervision who have completed their prison sentence? Did the correctional facility where petitioner was incarcerated after his release to postrelease supervision meet the statutory requirements for Residential Treatment Facilities with regard to sex offenders or to petitioner individually?

Holding below: Supreme Court, Queens County, in a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel respondent, among other things, to release petitioner from Queensboro Correction Facility, granted respondent’s motion to dismiss the petition, and dismissed the proceeding; App. Div. affirmed.

June Decision Days

Matter of DCH Auto v Town of Mamaroneck, 178 AD3d 823 (2d Dept 2019)

Issue presented: Did the petitioner, a lessee of premises on which it paid real estate taxes, fail to satisfy a condition precedent to the commencement of an RPTL article 7 proceeding to challenge a tax assessment when it filed administrative complaints under RPTL 524 in its own name rather than in the owner’s name and it was not identified in the complaints as an agent of the owner?

Holding below: Supreme Court, Westchester County, dismissed the consolidated proceeding insofar as it sought review of certain real estate tax assessments of a certain parcel of real property, for lack of standing. The Appellate Division, Second Department affirmed.

Matter of Laland v Bookhart, 183 AD3d 565 (2d Dept 2020)

Issue presented: Does the Interstate Compact on the Placement of Children apply to out-of-state, noncustodial parents, where the out-of-state authority would not consent to placing child with the father?

Holding below: Family Court, Suffolk County, dismissed father’s petitions for custody of the subject child. The Appellate Division, Second Department affirmed, holding that because the North Carolina DSS determined that the father’s home was not a suitable placement for the child, that determination was binding in New York.

Matter of Irelynn S. (Maurice S.), 188 AD3d 1744 (4th Dept 2020)

Issue presented: Does a father’s failure to appear at the dispositional hearing in a termination of parents rights case constitute a default where his attorney is present but elects not to participate in the father’s absence?

Holding below: Family Court, Onondaga County, among other things, terminated father’s parental rights with respect to the child when he failed to appear for the hearing and his attorney declined to participate in his absence. The Appellate Division, Fourth Department dismissed the father’s appeal.

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