The Appellate Division Summer Leave Grants

While the Court of Appeals takes most of the summer off, its docket still grows. That’s because the Appellate Division is still working away on decisions, and granting leave to appeal to the Court of Appeals in cases it thinks should be heard.  As was seen during the Court of Appeals’ 2016-17 term, the Appellate Division often grants leave to appeal more frequently than does the Court itself.  Here’s what the Appellate Division was up to over the summer.

July Appellate Division Leave Grants

AMBAC Assurance Corporation v Countrywide Home Loans, Inc., 150 AD3d 490 (1st Dept 2017)

Question presented: Under what circumstances may a court find that two entities have completed a de facto merger such that the successor entity may be held liable for fraud and breach of contract by the prior entity, and whether the Court properly found issues of fact precluded dismissal of claims that the asset sale transactions here were coordinated with the goal of combining BAC’s and Countrywide’s mortgage businesses while avoiding Countrywide’s liabilities so as to benefit Countrywide’s former shareholders at the expense of its creditors.

Supreme Court, New York County, granted in part and denied in part plaintiffs’ and the Countrywide defendants’ respective motions for summary judgment. The Appellate Division, First Department modified, finding issues of fact that required denial of summary judgment, and otherwise affirmed.

Gerrish v 56 Leonard LLC, 147 AD3d 511 (1st Dept 2017)

Question presented: Where plaintiff was fabricating steel rebars at an off-site temporary project facility in the Bronx for a construction project located in Manhattan, whether plaintiff was working in a construction area within the meaning of Labor Law § 241(6), and whether a question of fact exists as to involvement of defendants property owner and construction manager with off-site temporary construction facility.

Supreme Court, New York County, granted the motion of defendants 56 Leonard LLC and Lend Lease (US) Construction LMB, Inc. to dismiss plaintiff’s Labor Law § 241(6) claim against them. The Appellate Division, First Department reversed and denied the motion.

Sasson v TLG Acquisition LLC, 150 AD3d 459 (1st Dept 2017)

Question presented: Whether the Appellate Division properly applied the law of the case doctrine in electing not to re-examine its prior determination interpreting a disputed contract provision, whether defendants raised triable issues of fact precluding summary judgment, whether the trial court properly awarded attorneys’ fees pursuant to the terms of the parties’ transactional documents, and whether the trial court properly calculated interest due to plaintiffs.

Supreme Court, New York County, among other things, granted plaintiffs’ motion for summary judgment and directed the issue of attorneys’ fees to be heard by a referee. Supreme Court then, in a separate order, granted plaintiffs’ motion for summary judgment, severed plaintiffs’ claim for costs to be determined by a referee, and awarded judgment in favor of plaintiffs. The Appellate Division, First Deparmtment affirmed the judgment.

August Appellate Division Leave Grants

Nicke v Schwartzapfel Partners, P.C., 148 AD3d 1168 (2d Dept 2017)

Question presented: Whether Chapter 13 bankruptcy debtors had capacity to maintain a legal malpractice action against the law firm that represented the bankruptcy trustee in a personal injury action asserted on behalf of one of the plaintiffs, and whether collateral estoppel barred plaintiff from commencing legal malpractice action.

Supreme Court, Nassau County, granted those branches of defendants’ separate motions to dismiss the complaint insofar as asserted against each of them.  The Appellate Division, Second Department reversed and denied the motions.

The Court of Appeals September Session Leave Grants

The Court of Appeals’ September Session came to a close last week, with the Court issuing four new leave grants, two from the Fourth Department and one each from the First and Third Departments.  Here’s a quick look at those new cases:

Ferrara v Peaches Cafe LLC, 138 AD3d 1391 (4th Dept 2016)

Question presented: Whether a lien under Lien Law § 3 is valid only when the property owner directly authorizes the contractor to undertake the relevant improvements.

Appellate Division holding: Contrary to prior holdings of the other Appellate Division departments, the Fourth Department held that a lien may be enforced against the owner of a property even when the owner does not directly authorize the contractor to undertake the work, if the work is otherwise authorized under a lease of the premises between the owner and the tenant.

Matter of Pena v New York State Gaming Commission, 144 AD3d 1244 (3d Dept 2016)

Question presented: Whether veterinary billing records that were not certified by the vet constituted substantial evidence in the record that horses in the care of a trainer of harness racing horses were administered drugs within the prohibited time frames before races and that the trainer’s license was properly revoked.

Appellate Division holding: The Third Department held that the records were of questionable evidentiary weight because they did not explain on what date the drugs were administered, and the custodian of the records could only speculate based upon industry custom.  Thus, the Court held that the records did not constitute substantial evidence that the horses were administered drugs within prohibited the time frames before races, and the trainer’s license should not have been revoked.

Town of Aurora v Village of East Aurora, 149 AD3d 1506 (4th Dept 2017)

Question presented: Whether it was necessary for a village to pass a resolution pursuant to Village Law § 6-606 in order to assume control, care, and maintenance of a bridge, and thus which municipality is responsible for the costs of repair and maintenance of a bridge that the New York State Department of Transportation has identified as in need of repair.

Appellate Division holding: Under Village Law § 6-604, the Village of East Aurora, which planned, financed, and built the bridge, was exclusively responsible for its maintenance and repair because a resolution under section 6-606 was not required in order for the Village to assume control and responsibility for the bridge.

Capital One Taxi Medallion Finance v Corrigan, 147 AD3d 677 (1st Dept 2017)

Question presented: Whether counterclaims for breach of contract and negligent interference with collateral are defenses to the obligations under a loan agreement, such that the Appellate Division should not have granted the plaintiff’s motion for summary judgment in lieu of complaint.

Appellate Division holding: The counterclaims were not a defense to the underlying liability on the loan agreement, and thus the plaintiff was entitled to summary judgment in lieu of complaint.  Even if successful, the defendant’s counterclaims would merely mitigate its damages, but would not raise a question concerning whether it had an obligation to repay the loan.

The 2016-17 Appellate Division Leave Grants: April, May, and June

With the August Election Session now upon us, and the September Session arguments starting up just after Labor Day, it’s a good time to wrap up my preview of the 2017-18 Court of Appeals term. This is the fourth part in the series on the cases in which the Appellate Division granted leave to appeal.

April Grants

Matter of Bolt v New York City Department of Education, 145 AD3d 450 (1st Dept 2016)

Question presented: Where teacher allegedly assisted students on a statewide exam, whether the arbitrator’s penalty of termination was excessive.

Supreme Court, New York County, granted the petition to vacate an arbitrator’s opinion and award terminating petitioner’s employment with respondent based on her misconduct, and denied respondent’s cross motion to dismiss the petition. The Appellate Division modified, by confirming the arbitrator’s determination that petitioner is guilty as charged in specifications 2 and 3(a), (b), (c) and (d), and remanded the matter to respondent for imposition of a lesser penalty, and as so modified, affirmed.

Stega v New York Downtown Hospital, 148 AD3d 21 (1st Dept 2017)

Question presented: Whether statements made by defendants to a Food and Drug Administration investigator during the course of an investigation into the hospital’s institutional review board are protected by an absolute privilege in an action for defamation.

Supreme Court, New York County, denied the motion of defendants New York Downtown Hospital and Stephen G. Friedman, M.D. to dismiss plaintiff’s defamation cause of action as asserted against them. The Appellate Division reversed and granted the motion to dismiss the complaint as against New York Downtown Hospital and Stephen G. Friedman, M.D.

U.S. Bank National Association v Greenpoint Mortgage Funding, Inc., 147 AD3d 79 (1st Dept 2016)

Question presented: Whether a breach notice is required before commencing a “put-back” action involving residential mortgage backed securities when the underlying contract claim is based on defendant’s independent discovery or knowledge of nonconforming mortgages, and the demand requirement is contained within accrual clause of loan sale agreement, and whether a late breach notice can relate back in time to the commencement of the underlying action in order to avoid dismissal.

Supreme Court, New York County, among other things, granted defendant’s motion to dismiss the breach of contract claim to the extent the claim is based upon cure demands made on defendant, and denied the motion to dismiss that claim to the extent it is based upon allegations of defendant’s independent discovery of breaches. The Appellate Division affirmed.

International Union of Painters & Allied Trades, District Council No. 4 v New York State Department of Labor, 147 AD3d 1542 (4th Dept 2017)

Question presented: Whether, under Labor Law § 220(3-e), apprentices who are registered individually under a bona fide apprenticeship may work and be paid as apprentices even if the work they are performing is not work in the same trade or occupation as their apprenticeship program.

Supreme Court, Erie County, declared that the New York State Department of Labor’s determination that the work in question is that of the ironworkers and not of the glaziers is not unreasonable or arbitrary or capricious, and granted defendants’ motion for summary judgment dismissing the complaint. The Appellate Division reversed, denied defendants’ motion, reinstated the complaint, granted plaintiffs’ cross motion for summary judgment, and granted judgment in favor of plaintiffs to the extent of declaring that (1) Labor Law §§ 220(3)(a), (b) and (3-e) apply to glazier apprentices enrolled in the DC4 Glazier Apprenticeship Program, and (2) glazing contractors may compensate apprentices registered and enrolled in the DC4 Glazier Apprenticeship Program in accordance with the applicable apprentice rates posted by defendant New York State Department of Labor on taxpayer financed projects.

May Grants

Matter of The Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan; Matter of Daisy Wright v Jewish Home Lifecare, Manhattan, 146 AD3d 576 (1st Dept 2017)

Question presented: Whether respondent Department of Health took the requisite “hard look” under the State Environmental Quality Review Act at the proposed project’s anticipated adverse environmental impacts, including noise and hazardous material impacts, and provided a “reasoned elaboration” of its basis for approving the project, including the remedial measures to be employed to mitigate adverse impacts.

Supreme Court, New York County, granted the petitions seeking to annul a Findings Statement issued by respondent New York State Department of Health (DOH), approving respondent Jewish Home Lifecare, Manhattan’s application to construct a 20- story nursing home facility in Manhattan, and remitted the matter to DOH for preparation of an amended Final Environmental Impact Statement to reconsider the findings on the issues of noise and hazardous materials. The Appellate Division reversed, denied the petitions, reinstated the Findings Statement, and dismissed the CPLR article 78 proceeding.

Clement v Durban, 147 AD3d 39 (2nd Dept 2016)

Question presented: Whether the requirements of CPLR 8501(a) and 8503 that nonresident plaintiffs maintaining lawsuits in New York courts post security for the costs for which they would be liable if their lawsuits were unsuccessful violate the Privileges and Immunities Clause of the United States Constitution (US Const, art IV, § 2), or the Due Process and Equal Protection Clauses.

Supreme Court, Kings County, granted defendants’ motion pursuant to CPLR 8501(a) and 8503 to direct plaintiff to post security for costs in the amount of $500, and the Appellate Division affirmed.

Matter of Ruth Joanna O. O., 149 AD3d 32 (1st Dept 2017)

Question presented: Whether a preponderance of the evidence supports the finding that the mother’s untreated mental condition exposed the subject child to risk of imminent harm and that mother therefore neglected the child.

Family Court, Bronx County, determined that mother neglected the subject child, and the Appellate Division affirmed.

Matter of Lisa T. v King E. T., 147 AD3d 670 (1st Dept 2017)

Question presented: Whether Family Court erred in imposing an order of protection upon a finding that respondent willfully violated two temporary orders of protection, and whether the proof was sufficient to show a violation of the temporary orders of protection.

Family Court, Bronx County, among other things, found that respondent willfully violated two temporary orders of protection and thereafter, issued a one-year order of protection against respondent. The Appellate Division affirmed.

Matter of Beatty v City of New York, 148 AD3d 413 (1st Dept 2017)

Question presented: Where teacher submitted time sheets falsely stating that she had provided instruction to a disabled student over a two-month period, whether the arbitrator’s penalty of termination shocks the conscience.

Supreme Court, New York County, granted respondents’ cross motion to deny the petition seeking to vacate a penalty imposed in the arbitration award, and dismissed the proceeding brought pursuant to CPLR article 75. The Appellate Division reversed, granted the petition, and remanded the matter to respondent New York City Department of Education for imposition of a lesser penalty.

Scavetta v Wechsler, 149 AD3d 202 (1st Dept 2017)

Question presented: Whether a negligence claim may be asserted against a dog owner who attached the dog’s leash to unsecured bike rack, which was put into motion when the dog fled and which eventually struck plaintiff, causing injuries.

Supreme Court, New York County, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for summary judgment on the issue of liability.  The Appellate Division affirmed.

Matter of New York City Asbestos Litigation (Juni v A.O. Smith Water Products Company),  148 AD3d 233 (1st Dept 2017)

Question presented: Whether there was a sufficient “scientific expression” of plaintiff’s exposure to asbestos in toxic tort case brought by auto mechanic afflicted with mesothelioma after more than 25 years of working in two garages which serviced vehicles manufactured by defendant Ford Motor Company to support the jury’s verdict in plaintiff’s favor

Supreme Court, New York County, granted defendant’s motion to set aside the jury verdict in favor of plaintiff and set aside the verdict in its entirety. Supreme Court thereafter, awarded judgment in favor of defendant Ford Motor Company, and the Appellate Division affirmed.

Matter of New York City Asbestos Litigation (Brown v Bell & Gossett Company), 146 AD3d 461 (1st Dept 2017)

Question presented: Whether the evidence at trial established that defendant had the authority to control the activity that caused plaintiff’s injury, namely, the application of asbestos-containing materials.

Supreme Court, New York County, granted defendant Consolidated Edison’s posttrial motion to set aside the verdict against it and direct that judgment be entered in its favor dismissing the complaint against it and thereafter, upon renewal and reargument, adhered to the determination. The Appellate Division reversed, denied the posttrial motion, reinstated the verdict as against Consolidated Edison, and granted a new trial on damages for loss of consortium unless plaintiff stipulates to reduce the loss of consortium verdict to $360,000 and to entry of a judgment in accordance therewith.

June Grants

Only the Court of Appeals granted leave to appeal in June.  The Appellate Division did not issue any leave grants.

In total, for the 2016-17 term, the Appellate Division granted leave to appeal to the Court of Appeals in 38 cases.  Of the 38, 30 leave grants came from the First Department, 5 were from the Second Department, 2 from the Fourth Department, and just one from the Third Department.  To put that in perspective, the Court of Appeals itself granted leave in 27 cases last term.  So, the First Department out-granted the Court of Appeals on its own.  Moral of the story, if you really want leave to appeal from the Appellate Division, your best chance is in a commercial case in New York City.

The 2016-17 Appellate Division Leave Grants: January, February, and March

This is round three in my four part series previewing the cases that the Court of Appeals will hear during the 2017-18 term by leave of the Appellate Division. After 19 Appellate Division leave grants from September through December 2016, the grant pace slowed considerably during the first three months of 2017.

Only 7 cases made the cut for the Appellate Division Justices to decide that the Court of Appeals should hear them. Again the First Department led the way with 6 of the 7 leave grants, and the Third Department finally granted its first case of the 2016-17 term. Here’s a quick look at those cases.

January Grants

Cortlandt Street Recovery Corp. v Bonderman, 142 AD3d 833 (1st Dept 2016)

Question presented: Whether indenture trustee had standing to assert causes of action for breach of contract, fraudulent conveyance, unlawful corporate distribution, unjust enrichment, and based on an alter ego theory, and whether the complaint sufficiently stated a cause of action under a veil-piercing theory.

Supreme Court, New York County, granted defendants’ motions to dismiss the complaint in three separate actions for lack of standing. The Appellate Division modified the Supreme Court order by denying the motion to dismiss the complaint insofar as asserted by plaintiff Wilmington Trust Company, as indenture trustee, and, as so modified, affirmed.

February Grants

Matter of FMC Corp. v New York State Dept. of Envtl. Conservation, 143 AD3d 1128 (3d Dept 2016)

Question presented: Whether four-month statute of limitations began to run when respondent advised petitioner that administrative order on consent was closed or when respondent issued final statement of basis selecting a remedy to address environmental contamination, and whether NYSDEC’s selection of a remedial plan to address environmental contamination and decision to use the hazardous waste remedial fund to pay for the remediation was arbitrary and capricious.

Supreme Court, Albany County, granted NYSDEC’s motion to dismiss the CPLR article 78 petition. The Appellate Division reversed, denied the motion, granted the petition, and remitted the matter to Supreme Court, Albany County, for proceedings not inconsistent with the decision.

Herman v Herman, 144 AD3d 433 (1st Dept 2016)

Question presented: Whether the trial court properly precluded defendant from participating in an inquest into plaintiffs’ damages where defendant failed to comply with court orders directing the disclosure of certain documents.

Supreme Court, New York County, granted plaintiffs’ motion to preclude defendant J. Maurice Herman from participating in an inquest to assess plaintiffs’ damages against him, and denied defendant’s cross motion to preclude plaintiffs from offering certain evidence at the inquest, and the Appellate Division affirmed.

Guidance Enhanced Green Terrain, LLC, v Bank of America Merrill Lynch, 146 AD3d 431 (1st Dept 2017)

Question presented: Whether plaintiff assignor had a contractual right to compel defendant assignee to reassign bankruptcy claims to a third party as a condition of settlement, and whether plaintiff stated a claim that defendant assignee breached the covenant of good faith and fair dealing in withholding its consent to the proposed settlement.

Supreme Court, New York County, granted defendants’ motion to dismiss the first cause of action for breach and repudiation of contract. The Appellate Division reversed and denied the motion.

Valente v Lend Lease (US) Construction LMB, Inc., 143 AD3d 625 (1st Dept 2016)

Question presented: Whether defendants raised an issue of fact as to whether plaintiff was the sole proximate cause of the accident where he slipped and fell on grease on planks used as makeshift ramp to descend from top of building to a scaffold because he chose to use the planks instead of using or constructing a proper ramp.

Supreme Court, New York County, among other things, granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240(1) claim, and the Appellate Division affirmed.

March Grants

Shanksa USA Building, Inc. v Atlantic Yards B2 Owner, LLC, 146 AD3d 1 (1st Dept 2016)

Question presented: Whether the Appellate Division erred in its interpretation of Lien Law § 5 as it applied to the security provided for contractor payment in maintenance contract for construction of high-rise residential tower in the Atlantic Yards project, and whether the Appellate Division erred in finding that plaintiff failed to plead a veil-piercing claim and in declining to disqualify one of defendants’ law firms based on a conflict of interest.

Supreme Court, New York County, among other things, granted the motion of defendants Atlantic Yards and Forest City Ratner Companies to dismiss a claim that defendants breached the parties’ agreement by failing to post a bond required under Lien Law § 5, and by providing inadequate factory and inadequate labor. Supreme Court denied the motion insofar as against the first cause of action alleging breach of contract due to design defects and improperly changing the scope of work. and as to the third cause of action seeking to pierce the corporate veil. Supreme Court also denied plaintiff’s motion to disqualify the law firm of Troutman Sanders LLP as defendants’ attorneys.

The Appellate Division modified the Supreme Court order to reinstate the failure to provide adequate factor and labor claim and to dismiss the veil piercing cause of action, and otherwise affirmed.

People of the State of New York v Credit Suisse Securities (USA), LLC, 145 AD3d 533 (1st Dept 2016)

Question presented: Whether an action brought by the Attorney General under the Martin Act and Executive Law § 63(12) for alleged investor fraud is subject to the three-year statute of limitations under CPLR 214 or the six-year statute of limitations under CPLR 213.

Supreme Court, New York County, denied the motion of defendants Credit Suisse Securities (USA), LLC, et al. to dismiss the complaint pursuant to CPLR 3211(a)(5), and the Appellate Division affirmed.

The 2016-17 Appellate Division Leave Grants: October Through December

The Court of Appeals is largely a certiorari court, meaning that you generally need permission to take a case there. You would think that because permission must be granted before the Court of Appeals can hear a case, it is usually the Court that grants permission to determine the cases it wants to hear.  You would be wrong. The Court of Appeals granted leave to appeal in 27 cases during the 2016-17 term, but those are only a small proportion of the cases that the Court will hear starting this fall. There are a few proportion of cases that can be taken on an appeal as of right, and a handful of cases that come to the Court on a certified question from the Second Circuit.

The remaining cases come from leave grants by the Appellate Division. From September through December 2016, the Appellate Division granted leave to appeal to the Court of Appeals in 19 cases (5 grants in September and 14 from October through December previewed below), only 8 less than the Court of Appeals itself granted during the entire 2016-17 term.

October Grants 

Dormitory Authority of the State of New York v Samson Construction Co., 137 AD3d 433 (1st Dept 2016)

Question presented: Whether the Dormitory Authority may pursue a negligence claim against the architect of a building project in addition to a claim of breach of contract to recover for damages incurred as a result of site excavation for the building’s foundation, and whether the City of New York, who was not a party to the DASNY-architect contract may assert a claim as a third party beneficiary as the ultimate end user of the building.

Supreme Court, New York County, among other things, granted the part of the architect’s motion for summary judgment seeking dismissal of DASNY’s breach of contract claim, and denied the part of the motion seeking dismissal of the negligence claim. The Appellate Division, First Department modified to deny the motion as to the breach of contract claim, and otherwise affirmed.

Baumann v Long Island Power Authority, 141 AD3d 554 (2d Dept 2016)
Connolly v Long Island Power Authority, 141 AD3d 555 (2d Dept 2016)
Heeran v Long Island Power Authority, 141 AD3d 561 (2d Dept 2016)

Question presented: Whether utility providers are immune from negligence suits brought by property owners for damages caused by the storm surge of Hurricane Sandy under the doctrine of governmental function immunity.

Supreme Court, Queens County, denied the joint motion of defendants Long Island Power Authority, Long Island Lighting Company and National Grid Electric Services LLC pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them, and the Appellate Division, Second Department affirmed.

Forman v Henkin, 134 AD3d 529 (1st Dept 2015)

Question presented: Whether a personal injury plaintiff may be compelled to produce photographs privately posted on Facebook and provide authorizations for the disclosure of the plaintiff’s private Facebook messages.

Supreme Court, New York County, among other things, granted defendant’s motion to compel to the extent of directing plaintiff to produce all photographs of plaintiff privately posted on Facebook prior to the accident at issue that she intends to introduce at trial, all photographs of plaintiff privately posted on Facebook after the accident that do not show nudity or romantic encounters, and authorizations for defendant to obtain records from Facebook showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages. The Appellate Division, First Department modified to vacate those portions of the order directing the plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial, and authorizations related to plaintiff’s private Facebook messages, and otherwise affirmed.

November Grants

Matter of Brookford, LLC v New York State Division of Housing and Community Renewal, 142 AD3d 433 (1st Dept 2016)

Question presented: Whether the NYSDHCR properly apportioned income reported on a married couple’s joint tax return after the husband vacated a rent-controlled apartment and entered an assisted living facility because the wife was the only occupant of the apartment.

Supreme Court, New York County, in a proceeding pursuant to CPLR article 78, denied the petition seeking annulment of an 11/19/14 order of respondent New York State Department of Housing and Community Renewal (DHCR) which affirmed, as modified, a prior DHCR order denying petitioner’s application to deregulate a rent controlled apartment and dismissed the proceeding. The Appellate Division, First Department affirmed.

Matter of Castro v Schriro, 140 AD3d 644 (1st Dept 2016)

Question presented: Whether a probationary public employee’s pleadings sufficiently raised an issue as to bad faith or any other improper reason for his termination that would have warranted denial of a pre-answer motion to dismiss.

Supreme Court, New York County, denied the petition seeking to annul respondents’ determination terminating petitioner’s employment as a probationary correctional officer, and granted respondents’ cross motion to dismiss the proceeding.  The Appellate Division, First Department reversed, reinstated the petition and remanded the matter to Supreme Court for further proceedings.

December Grants

Keyspan Gas East Corporation v Munich Reinsurance American, Inc., 143 AD3d 86 (1st Dept 2016)

Question presented:  What is the proper allocation, under the relevant insurance policies, of risk of loss attributable to a continuous harm occurring, in part, during periods when liability insurance was unavailable in the marketplace, and whether the insurance policies at issue contain anti-stacking language requiring an all-sums allocation method.

Supreme Court, New York County, among other things, denied defendant Century Indemnity Company’s motion for partial summary judgment declaring that it is not responsible for any part of the costs of cleanup for periods of time where insurance was unavailable before 1953 and after 1986.  The Appellate Division reversed, granted defendant’s motion for partial summary judgment, and declared that defendant Century Indemnity Company is not responsible for any part of the costs of cleanup for periods of time where insurance was unavailable before 1953 and after 1986.

Rodriguez v City of New York, 142 AD3d 778 (1st Dept 2016)

Question presented: Whether the plaintiff was required to establish the absence of comparative negligence in order to obtain summary judgment on the issue of liability.

Supreme Court, New York County, held that a plaintiff must make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability. The Appellate Division, First Department affirmed.

Vasquez v National Securities Corporation, 139 AD3d 503 (1st Dept 2016)

Question presented: Whether the notice provision of CPLR 908 applies to an action pleaded as a class action but dismissed prior to class certification.

Supreme Court, New York County, granted plaintiff’s motion to give notice of the impending dismissal of the complaint to putative class members pursuant to CPLR 908, and the Appellate Division, First Department affirmed.

Morgan Stanley Mortgage Loan Trust 2006-13ARX v Morgan Stanley Mortgage Capital Holdings LLC, 143 AD3d 1 (1st Dept 2016)

Question presented: Whether the defendant’s alleged breach of a contractual obligation to notify the trustee of a residential mortgage-backed securities trust of defective loans gives rise to damages not governed by the “sole remedies” restrictions in the parties’ agreements, and whether allegations of gross negligence affect the enforceability of contract provisions limiting a party’s liability.

Supreme Court, New York County, among other things, granted defendant’s motion to dismiss the first and second causes of action to the extent they seek damages inconsistent with the terms of the repurchase protocols and the fifth cause of action; App. Div. reversed and denied defendant’s motion.

Gilbane Building Co./TDX Construction Corp. v St. Paul Fire and Marine Insurance Company, 143 AD3d 146 (1st Dept 2016)

Question presented: Whether the additional insured clause in a commercial general liability insurance policy for a building construction project covers only those that have a written contract directly with the named insured.

Supreme Court, New York County, denied defendant Liberty Insurance Underwriters’ motion for summary judgment declaring that plaintiff Gilbane Building Co./TDX Construction Corp., a Joint Venture, is not an additional insured under the policy issued by Liberty to nonparty Samson Construction Company, and declared that plaintiff is an additional insured under the policy. The Appellate Division, First Department reversed, granted defendant Liberty Insurance Underwriters’ motion, and vacated the declaration.

Pesante v Vertical Industrial Development Corp., 142 AD3d 656 (2d Dept 2016)

Question presented: Whether the owner and managing agent of a parking lot may be held vicariously liable for injuries caused when the plaintiff was struck by a remote controlled car in the parking lot, where the lot was patrolled by an independent contractor to ensure a safe environment for visitors, and whether the owner had constructive notice of the allegedly dangerous condition.

Supreme Court, Kings County, among other things, granted that branch of the motion of defendants Vertical Industrial Development Corp. and Rentar Development Corp. which was for summary judgment dismissing the complaint insofar as asserted against them. The Appellate Division, Second Department reversed and denied that branch of the motion of defendants Vertical Industrial and Rentar Development which was for summary judgment dismissing the complaint insofar as asserted against them.

Deutsche Bank National Trust Company v Flagstar Capital Markets Corporation, 143 AD3d 15 (1st Dept 2016)

Question presented: Whether the statute of limitations bars a breach of contract action brought more than six years after the seller made allegedly false representations and warranties regarding the loans underlying residential mortgage-backed securities, and whether the purchaser was entitled to enforcement of a contract provision specifying a set of conditions that would delay a cause of action’s accrual.

Supreme Court, New York County, among other things, granted defendant Quicken Loans Inc.’s motion to dismiss the breach of contract claim as time-barred, and the Appellate Division, First Department affirmed.

From September through December 2016, the First Department granted leave to appeal to the Court of Appeals in 14 cases out of the 19 Appellate Division total leave grants. The Second Department granted leave in 4 cases (3 of which were companion cases), and the Fourth Department granted leave in 1 case.  Next up, the Appellate Division leave grants from January, February, and March.

How The Appellate Division Grants Leave to the Court of Appeals: The 2016-17 Term Appellate Division Grants

There are multiple ways to take a case to the Court of Appeals. You can seek leave to appeal from the Court directly, which the Court grants fairly infrequently (I previewed the 2016-17 Court of Appeals term leave grants here: Part 1 – September through January Sessions, Part 2 – February and March Sessions, Part 3 – April and May Sessions, and Part 4 – June Session and Decision Days). Or you can take two bites at the apple, and seek leave to appeal from the Appellate Division first.

Here’s the thing, though. If you’re the one asking the Appellate Division to grant you leave to appeal to the Court of Appeals, that means you lost.  And it means that you would be asking the same judges that disagreed with you to give you another chance to have the Court of Appeals overrule what they just said. Sounds like a losing proposition, and it usually is.  Convincing a court to change its mind on anything is difficult, but sometimes it happens, and the Appellate Division decides to grant leave to appeal to have the Court of Appeals review its decision.

The way that happens is the Appellate Division will grant leave to appeal  pursuant to CPLR 5602(b). What’s unique about that is that the Appellate Division can grant leave in cases that the Court of Appeals would otherwise be unable to hear. The Court of Appeals’ jurisdiction allows it to grant review only in cases that are final, meaning that the entire case is over. If there are a few claims still pending in the lower courts, or some issues still left to resolve, when the Court of Appeals is asked to grant leave to appeal, the Court is bound to dismiss the motion because the Appellate Division order isn’t yet final.  It is only when there is nothing left to do in the lower courts that the Court of Appeals can grant leave. (There are some limited exceptions to that general rule of the Court’s jurisdiction, but I’ll leave those for another day.)

The Appellate Division, in contrast, isn’t constrained to grant leave only in cases that have become final. It can also grant leave to appeal to the Court of Appeals on a certified question before the whole case is over. Say there’s a new issue that hasn’t been addressed by the Court of Appeals, but would govern how the case will proceed in the trial court, the Appellate Division can ask the Court of Appeals to review that question even though the case is still pending. When the certified question procedure first began, the Appellate Division often certified a particular question to the Court of Appeals, which constrained the Court’s review only to that question. That practice has largely been abandoned, however. Now, the Appellate Division certifies the same question in every case: “Was the order of this Court properly made?” That certified question gives the Court of Appeals jurisdiction to consider the whole case, not just the one issue specified by the Appellate Division.

Although there’s an argument to be made that the Court of Appeals should be allowed to control its own docket, Judges much smarter than me laud the Appellate Division’s use of its authority to grant leave to the Court of Appeals. Because the Appellate Division sees a far greater number of cases, it is able to see the developing trends in New York law and judge when an issue is ripe for the Court of Appeals to address.  Here’s a rundown of the cases from the 2016-17 term that the Appellate Division thought should be reviewed by the Court of Appeals.

September

Desrosiers v Perry Ellis Menswear, LLC, 139 AD3d 473 (1st Dept 2016)

Question presented: Whether putative class members were entitled to notice of discontinuance of the action under CPLR 908 despite the fact that the time for the individual plaintiff to move for class certification had expired under CPLR 902

Supreme Court, New York County, denied plaintiff’s cross motion to notify the putative class of the discontinuance of the action, pursuant to CPLR 908. The Appellate Division, First Department reversed and remanded to Supreme Court, New York County, to fashion an appropriate notification to the putative class under CPLR 908.

Lohnas v Luzi, 140 AD3d 1717 (4th Dept 2016)

Question presented: Whether an issue of fact existed regarding application of the continuous treatment doctrine, and whether the equitable estoppel doctrine applied to toll the statute of limitations

Supreme Court, Erie County, granted defendants’ motion for leave to reargue and, upon reargument, denied defendants’ motion for partial summary judgment. The Appellate Division, Fourth Department modified by granting the motion for partial summary judgment in part and dismissing the complaint to the extent that the complaint, as amplified by the bill of particulars, asserts that defendants are equitably estopped from asserting as a defense the statute of limitations for medical malpractice and, as so modified, affirmed.

Franklin v Gareyua, 136 AD3d 464 (1st Dept 2016)

Question presented: Whether the plaintiff motorist failed to raise a triable issue of fact on the cause of his alleged injury

Supreme Court, Bronx County, granted defendants’ motion for summary judgment dismissing plaintiff’s claim that he suffered a serious injury to his left shoulder within the meaning of Insurance Law § 5102(d), and the Appellate Division, First Department affirmed.

Mapfre Insurance Co. of N.Y. v Manoo, 140 AD3d 468 (1st Dept 2016)

Question presented: Whether the plaintiff insurer established entitlement to summary judgment based on the insured’s failure to appear at an examination under oath, notwithstanding that the insurer scheduled the examination before receiving the provider’s claim for benefits, and whether the court properly interpreted the Insurance Department regulations.

Supreme Court, New York County, among other things, granted defendant’s motion to reargue and, upon reargument, denied plaintiff’s motion for summary judgment. The Appellate Division, First Department reversed, granted plaintiff’s motion for summary judgment, and declared that the plaintiff is not obligated to pay defendant for the claim at issue.

Somereve v Plaza Construction Corp., 136 AD3d 537 (1st Dept 2016)

Question presented: Whether Labor Law § 240(1) applies where the plaintiff was using a prime mover to hoist a load and the prime mover pitched forward, causing the plaintiff to be ejected off the back of the machine, and whether issues of fact existed on comparative negligence and sole proximate cause precluding the grant of summary judgment.

Supreme Court, New York County, granted plaintiff’s motion for partial summary judgment on the Labor Law § 240(1) cause of action, and the Appellate Division, First Department affirmed.

This is the first post of my multi-part review of the cases where the Appellate Division granted leave to appeal to the Court of Appeals for the 2017-18 term. Through just the first month, you can start to see a trend develop.  The First Department really likes to grant leave to the Court of Appeals.

The 2016-17 Court of Appeals Term Leave Grants: June Session and Decision Days

For the first 9 sessions of the 2016-17 Court of Appeals term, the Court only granted leave to appeal in 17 civil cases—7 from the First Department, 6 from the Second Department, 3 from the Third Department, and 1 from the Fourth Department.  The June Session and Decision Days slightly increased that lethargic grant pace, with 10 grants in these cases.

June Session and Decision Days

Williams v City of New York, 142 AD3d 901 (1st Dept 2016)

Question presented: Whether the penalty of termination is so disproportionate as to shock the conscience for an eighth-grade physical education teacher who initiated conversations with at least two of his female students asking them if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them.

U.S. Bank National Association v DLJ Mortgage Capital, Inc., 141 AD3d 431 (1st Dept 2016) (two consolidated cases)

Question presented: Whether dismissal without prejudice was proper remedy where residential mortgage backed securities trustee failed a condition precedent to give notice of a breach of the representations and warranties before seeking to enforce a repurchase obligation, and whether the trustee that was substituted as the plaintiff in the action for the Federal Housing Finance Agency, which lacked standing, could recommence such a dismissed suit pursuant to CPLR 205(a).

Waite v Town of Champion, 148 AD3d 1634 (4th Dept 2017)

Question presented: What are the grounds upon which electors may challenge the dissolution of a municipal service district after approval at a referendum.

2138737 Ontario, Inc. v Samsung C&T Corporation, 144 AD3d 122 (1st Dept 2016)

Question presented: Whether a broadly drawn contractual choice-of-law provision, that provides for the agreement to be “governed by, construed and enforced” in accordance with New York law, precludes the application of New York’s borrowing statute (CPLR 202).

Matter of Gonzalez v Annucci, 149 AD3d 256 (3d Dept 2017)

Question presented: Whether an exception to the mootness doctrine applied to allow the Court to review challenge to sex offender’s placement in a treatment facility at the end of his maximum prison term because he was unable to secure Sexual Assault Reform Act-compliant housing after he had been released to such housing, and what is the scope of DOCCS’ duty to assist inmates who are on community supervision in securing “employment, educational or vocational training, and housing” under Correction Law § 201(5).

People v Quinn Britton, 148 AD3d 1064 (2d Dept 2017)

Question presented: Whether a sex offender may be assessed points in his Sex Offender Registration Act assessment for conduct underlying sexual assault crimes of which he was acquitted at trial.

People v Frederick Diaz, 150 AD3d 60 (1st Dept 2017)

Question presented: Whether requiring defendant to register as a sex offender in New York, based on a conviction of a crime that did not have any sexual component but which required registration in Virginia under a broader statute that covers both sex crimes and crimes against minors, violates the defendant’s substantive due process rights under the Federal and New York Constitutions.

Matter of Kowal v DiNapoli, 145 AD3d 1152 (3d Dept 2016)

Question presented: Whether a court officer who suffered from post traumatic stress disorder after using deadly force against an assailant while on duty at a courthouse was injured in an “accident” within the meaning of Retirement and Social Security Law § 605–a to entitle him to accidental disability retirement benefits.

Lau v Margaret E. Pescatore Parking, Inc., 145 AD3d 567 (1st Dept 2016)
Lau v Margaret E. Pescatore Parking, Inc., 105 AD3d 594 (1st Dept 2013)

Question presented: Whether the trial court providently exercised its discretion to strike the note of issue and direct plaintiff to appear for a further deposition in the case because his counsel had unduly objected to questioning, and whether defendant was entitled to summary judgment on issue of notice of alleged dangerous condition.

So, in total, the Court of Appeals itself granted leave to appeal in 27 cases, with almost half of those coming from the First Department, and 7 from the Second Department.  The Third and Fourth Departments combined for 7 leave grants (5 from the Third and 2 from the Fourth).  The 27 leave grants is the start of a slight increase from last year (the Court’s Annual Report which runs from January through December reported 17 civil leave grants, 3 of which occurred during the 2016-17 term).  But still, the Court’s caseload is way down from where it was only a few years ago.

Next up on the preview of cases that the Court of Appeals will be hearing during the 2017-18 term is a look at the cases in which the Appellate Division granted leave to appeal on a certified question to the Court of Appeals.

The Court of Appeals 2016-17 Term Leave Grants: April and May Sessions

The first seven sessions of the 2016-17 Court of Appeals term yielded 12 new cases granted by the Court (see Part 1 and Part 2 of my preview).  The April and May Sessions kept up the slow grant pace, with 4 grants in April and 1 in May.   Here’s a brief rundown of those cases.

April Session Grants

Matter of People of State of New York v Juarez, 143 AD3d 589 (1st Dept 2016)

Question presented: Whether the People can subpoena a reporter who interviewed a murder defendant while in jail to testify and produce her notes from the interview and overcome the qualified protection for a journalist’s nonconfidential material under Civil Rights Law § 79–h(c).

Mahoney v Brockbank, 142 AD3d 200 (2d Dept 2016)

Question presented: Whether, pursuant to CPLR 5002, prejudgment interest on the award should be computed from the date of the jury verdict on the issue of damages, or instead, from the date of the stipulation on the issue of liability.

Burns v Goyal, 145 AD3d 952 (2d Dept 2016)

Question presented: Whether doctors established entitlement to summary judgment where the patient was advised to stop a prescription for Plavix that had been prescribed by the defendant cardiologist in order to have a kidney biopsy, and the patient then died of a heart attack after going off the medication.

Matter of Lemma v Nassau County Police Officer Indemnification Board, 147 AD3d 760 (2d Dept 2017)

Question presented: Whether a Nassau County police officer would be entitled to defense and indemnification from civil liability pursuant to General Municipal Law § 50-l only where the Indemnification Board “determines that the officer acted both within the scope of his or her employment and in the proper discharge of his or her duties.”

May Session Grants

Matter of Sica v DiNapoli, 141 AD3d 799 (3d Dept 2016)

Question presented: Whether the Appellate Division correctly held that the record did not contain substantial evidence to support the Comptroller’s determination that petitioner firefighter’s injuries from being exposed to colorless and odorless gases while responding to an emergency at a supermarket were not the result of an “accident” within the meaning of Retirement and Social Security Law § 363.

Through the end of the May Session, the Court is up to 17 grants out of the 27 total for the 2016-17 term.  That leaves the last 10 cases that the Court granted this term for the June Session and Decision Days.  It will be a jam-packed final post of this 4 part series.  Then I plan to comb through the Clerk’s Office’s New Filings List to find the cases that the Appellate Division granted during the last term, as I continue the preview for the upcoming 2017-18 term of the Court of Appeals.

The 2016-17 Court of Appeals Term Leave Grants – February and March Sessions

After a slow start to the 2016-17 term, where the Court of Appeals granted only 4 cases from the September, October, November, December, and January sessions, the pace began to pick up in February and March.  Between those two months, the Court of Appeals granted 8 motions for leave to appeal.  Here’s a quick overview of those cases.

February Session Grants

Brown v State of New York, 144 AD3d 1535 (4th Dept 2016)

Question presented: Whether a fair interpretation of the evidence supported the trial court’s apportionment of 100% liability to the State for a dangerous condition in the roadway that caused an accident, and 0% to a driver who failed to yield the right of way in violation of the Vehicle and Traffic Law.

Garcia v New York City Department of Health & Mental Hygiene, 144 AD3d 59 (1st Dept 2016)

Question presented:  Whether the New York City Board of Health exceeded its authority by adopting regulations mandating the influenza vaccine for children attending certain child care, pre-kindergarten, and kindergarten programs.

Matter of Marine Holdings, LLC v New York City Commission on Human Rights, 137 AD3d 1284 (2d Dept 2016)

Question presented: What standard of proof applies when, in a discrimination enforcement proceeding, the accused landlord comes forward with prima facie evidence that it would be structurally infeasible to provide a reasonable accommodation of a tenant’s disability and the burden of proof shifts back to the Commission, and whether the Appellate Division properly held that substantial evidence did no exist in the record to rebut the landlord’s showing.

Gravano v Take-Two Interactive Software, Inc. and Lohan v Take-Two Interactive Software, Inc., 142 AD3d 776 (1st Dept 2016)

Question presented: Whether video game depictions of celebrities can constitute a misappropriation of their likenesses in violation of Civil Rights Law § 51’s right to privacy.

I summarized these cases and the First Department’s holding when they were granted, which can be found here.

March Session Grants

Parietti v Wal-Mart Stores, Inc., 140 AD3d 1039 (2d Dept 2016)

Question presented: What is sufficient to constitute constructive notice of a hazardous condition in a retail store, and whether the Appellate Division properly granted summary judgment to Wal-Mart where the store “established that the alleged wet condition did not exist for a sufficient length of time prior to the accident such that its employees were able to discover and remedy it.”

Matter of Anonymous, an Intermediate Care Facility v Molik, 141 AD3d 162 (3d Dept 2016)

Question presented: Whether under Social Services Law § 493(3)(a), the only circumstance under which the Justice Center for the Protection of People with Special Needs could substantiate a report of neglect against a facility or provider agency is where an incident of neglect has occurred but the subject cannot be identified.

Altman v 285 West Fourth LLC, 127 AD3d 654 (1st Dept 2015)

Question presented: Whether a tenant in what should be a rent-regulated apartment under the NYC Rent Stabilization Code can agree to pay a rent that exceeds the maximum rent allowable under the RSC and waive the protections afforded under the statute by agreeing not to bring a proceeding for a rent overcharge.

That was part 2 of my 4-part series looking ahead to the cases for which the Court of Appeals has granted leave to appeal.  Next up, the April and May Session leave grants.

 

 

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