The Appellate Division January, February, and March 2018 Leave Grants

The Appellate Division only granted two more cases from the first three months of 2018, both of which came from the Second Department. With the two new leave grants from the Second Department, it jumped into the departmental lead with 5 leave grants to 4 from the First Department and 2 from the Fourth Department. The 11 total Appellate Division leave grants through March 2018 is way behind the 26 the Appellate Division had granted through March 2017. An interesting downturn to watch to see if this is more aberration or trend.

If you missed the first two parts of my Appellate Division leave grants series, August, September, and October 2017’s grants can be found here, and November and December 2017’s grants here.

Here’s a quick look at the two new Appellate Division leave grants, both of which came in March 2018.

March Appellate Division Leave Grants

Andryeyeva v New York Health Care, Inc., 153 AD3d 1216 (2d Dept 2017)

Questions presented: Whether the plaintiffs’ renewed motion for class certification was properly granted, and whether the Appellate Division erred in finding that the premise upon which the employer based its payment practices with respect to nonresidential home health care attendants–that is, the Department of Labor’s interpretation of the Wage Order (12 NYCRR 142.2.1)–is neither rational nor reasonable.

Supreme Court, Kings County, granted plaintiffs’ renewed motion for class certification pursuant to CPLR article 9. The Appellate Division, Second Department affirmed.

Moreno v Future Care Health Services, Inc., 153 AD3d 1254 (2d Dept 2017)

Questions presented: Whether the defendant employer violated Labor Law article 19 by paying the plaintiff home health care attendants a flat rate for 24-hour shifts, resulting in a wage below minimum wage, and whether Supreme Court properly denied plaintiffs’ motion for class certification.

Supreme Court, Kings County, denied the plaintiffs’ motion for class certification pursuant to CPLR article 9. The Appellate Division, Second Department vacated the order, and granted plaintiffs’ motion for class certification pursuant to CPLR article 9.

The Appellate Division November and December 2017 Leave Grants

After 6 Appellate Division leave grants from the first few months of the 2017-18 term, November and December only saw the Appellate Division finding three new cases to send to the Court of Appeals, two from the First Department and one from the Second Department. That brings the total Appellate Division leave grants to 9, with 4 coming from the First Department, 3 from the Second Department, and 2 from the Fourth Department.

Here’s a quick look at the new cases for the Court of Appeals to decide.

November Appellate Division Leave Grants

Mery v Eginger, 149 AD3d 827 (2d Dept 2017)

Question presented: In a case where the plaintiff was struck in the eye by piece of wire ejected from lawn mower, whether the property owner was vicariously liable for negligence on part of independent contractor who was mowing the property owner’s lawn, and whether lawn mowing is an inherently dangerous activity.

Supreme Court, Dutchess County, granted the motion of defendant Society of Friends Church for summary judgment dismissing the complaint insofar as asserted against it. The Appellate Division, Second Department affirmed.

December Appellate Division Leave Grants

Matter of Lacee L. (Stephanie L.), 153 AD3d 1151 (1st Dept 2017)

Question presented: Whether the Americans With Disabilities Act applies in a Family Court article 10 proceeding in evaluating whether agency made reasonable efforts to achieve the permanency goal of returning the subject child to the parent, who suffers from a cognitive disability.

Family Court, Bronx County, determined that the petitioner agency made reasonable efforts to achieve the permanency goal of returning the subject child to respondent mother during the nine-month period following the child’s removal. The Appellate Division, First Department affirmed.

Matter of New York City Asbestos Litigation (South v Chevron), 153 AD3d 461 (1st Dept 2017)

Question presented: In a case where the plaintiff, who was exposed to asbestos while serving as merchant mariner, executed a release before receiving a mesothelioma diagnosis, whether a release executed by the plaintiff in a 1997 Jones Act (46 USC § 30104 et seq.) action was enforceable in subsequent Jones Act and negligence action brought by the plaintiff and his wife derivatively against defendant manufacturer of asbestos.

Supreme Court, New York County, denied the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against it. The Appellate Division, First Department affirmed.

The Appellate Division August, September, and October 2017 Leave Grants

The Court of Appeals docket is also filled with cases that the Appellate Division found interesting enough to grant leave on its own. It’s a unique aspect of New York’s appellate jurisdiction that allows the intermediate appellate courts to have a say in what cases the Court of Appeals hears. For a more in depth look at the process through which the Appellate Division grants leave to appeal, you can read about it here.

Here’s a quick look at the Appellate Division’s leave grants from the 2017-18 term.

August Appellate Division Leave Grants

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

Question presented: Whether plaintiffs, chapter 13 bankruptcy debtors, had capacity to maintain legal malpractice action against a 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 the plaintiff from commencing the 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, and then granted leave to appeal.

Schnapp v Miller’s Launch, Inc., 150 AD3d 32 (1st Dept 2017)

Question presented: In a case where the Plaintiff, a maritime surveyor, was injured while attempting to board a vessel by jumping from the bulkhead to the vessel’s deck, whether questions of fact exist as to whether defendant vessel owner violated the turnover duty and duty to intervene under the Longshore and Harbor Workers’ Compensation Act.

Supreme Court, New York County, granted the defendant’s motion for summary judgment dismissing the complaint. The Appellate Division, First Department reversed and denied the motion, and then granted leave to appeal.

Matter of New York Civ. Liberties Union v New York City Police Dept., 148 AD3d 642 (1st Dept 2017)

Question presented: Whether Civil Rights Law § 50-a exempts from disclosure written disciplinary decisions of the New York City Police Department, despite that the disciplinary trials are open to the public and redaction of identifying information is available, and whether respondents’ previous disclosure of other redacted records waives any objection to redacting the subject disciplinary decisions.

Supreme Court, New York County, adhering to orders of the same court (10/16/12, 7/29/14 and 10/2/14), granted, to a limited extent, the petition brought pursuant to CPLR article 78 seeking to compel respondents to disclose certain records pursuant to the Freedom of Information Law. The Appellate Division, First Department reversed, denied the petition, and dismissed the proceeding. The Court then granted leave to appeal.

September Appellate Division Leave Grants

Lobello v New York Central Mutual Fire Insurance Co., 152 AD3d 1206 (4th Dept 2017)

Question presented: Whether the two-year limitations period set forth in the homeowner’s insurance policy at issue ran from the date of burglary or from the date the insurer denied coverage for the loss

Supreme Court, Oswego County, among other things, granted in part defendant’s cross motion for summary judgment. The Appellate Division, Fourth Department modified by granting that part of plaintiff’s motion seeking to dismiss defendant’s affirmative defense of expiration of the two-year limitations period set forth in the policy, denying defendant’s cross motion in its entirety, and reinstating the complaint with respect to the loss of 9/29/09, and as so modified, affirmed.

Erie Insurance Exchange v J.M. Pereira & Sons, Inc., 151 AD3d 1879 (4th Dept 2017)

Question presented: Whether summary judgment was properly denied to plaintiff because the plaintiff failed to establish, as a matter of law, that a certain exception to Exclusion G in the subject business catastrophe liability policy does not apply.

Supreme Court, Monroe County, insofar as appealed from, denied plaintiff’s motion for summary judgment. The Appellate Division, Fourth Department affirmed.

October Appellate Division Leave Grants

Andrew Carothers, M.D., P.C. v Progressive Insurance Co., 150 AD3d 192 (2d Dept 2017)

Questions presented: What are the elements necessary to establish the defense of fraudulent incorporation recognized in State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]) where a payment was withheld by the insurance carrier for medical services provided by a professional corporation which has been “fraudulently incorporated” to allow nonphysicians to share in its ownership and control, and whether an adverse inference is available for nonparties’ invocation of Fifth Amendment privilege against self-incrimination.

Civil Court of the City of New York, Richmond County, upon a jury verdict, found in favor of defendant and against plaintiff, dismissing the complaint. The Appellate Term affirmed, and the Appellate Division, Second Department affirmed.

The Court of Appeals April-May and June 2018 Session and Decision Days Leave Grants

At the end of the term, it’s not abnormal to see the Court of Appeals tend to grant more cases to fill up its argument docket for the fall. During the 2016-2017 term, the Court granted 15 of its 27 total leave grants during the April-May and June sessions, including June Decision Days. More than half from the last three months of the term. This year is similar, with 8 leave grants out of 25 total coming during the April-May and June sessions, plus decision days.

What’s most notable about all of the leave grants this year, however, is the Court’s trend toward granting leave in cases from the Third and Fourth Departments.  Last year, only 7 of the Court’s 27 leave grants came from the upstate Departments. This year, in contrast, 15 cases were granted from the Third and Fourth Departments, compared to 10 from the First and Second. One year is far too small of a sample size to be meaningful, but it will be interesting to watch the grants for the 2018-19 term to see if the Court tends to favor granting leave to cases in the upstate Departments and leaving the First and Second Departments to grant leave on their own.

Here’s a quick rundown of the 8 leave grants from the April-May and June Sessions, and June Decision Days.

April-May Session Leave Grants

Fasolas v Bobcat of N.Y., Inc., 150 AD3d 147 (2d Dept 2017)

Question presented: Whether an exception to strict products liability as set forth in Scarangella v Thomas Built Buses (93 NY2d 655 [1999]) is applicable where the allegedly defectively designed product was sold without optional safety equipment to a rental company that planned to rent the product to the general public.

Supreme Court, Queens County, denied defendants’ motions pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint as to them, and pursuant to CPLR 4404(a) to set aside so much of the jury verdict on the issue of liability finding each of the two defendant Bobcat entities 25% at fault in the happening of the accident and defendant Port Jefferson Rental Center d/b/a Taylor Rental Center 50% at fault in the happening of the accident, and for judgment as a matter of law or, in the alternative, to set aside that portion of the jury verdict on the issue of liability in the interest of justice and for a new trial or, in the alternative, to set aside, as excessive, the jury verdict on the issue of damages awarding plaintiff the principal sum of $1,000,000 for conscious pain and suffering (4/18/13 order); and thereafter, entered a judgment in favor of plaintiff and against defendants upon the jury verdict on the issue of liability and damages, and upon the 4/8/13 order (4/22/13 order). The Appellate Division, Second Department affirmed and dismissed the appeal and cross appeal from the order denying the parties’ CPLR 4401 and 4404 motions after trial.

Matter of Larchmont Pancake House v Board of Assessors, 153 AD3d 521 (2d Dept 2017)

Questions presented: Whether, in a proceeding pursuant to Real Property Tax Law article 7 brought by a petitioner who did not own the subject property, to review real property tax assessments, the petitioner is an aggrieved party within the meaning of the Real Property Tax Law, and whether the petitioner failed to satisfy condition precedent set forth in RPTL 524(3) because grievance was not filed by property owner, thereby depriving court of subject matter jurisdiction to review assessments.

Supreme Court, Westchester County, denied the motions of the Assessor of the Town of Mamaroneck and the Board of Assessment Review to dismiss the petitions in four related proceedings pursuant to Real Property Tax Law article 7 to review real property tax assessments for the tax years 2010-2013. The Appellate Division, Second Department reversed and granted the motions to dismiss the petition in each proceeding.

Viselli v The Riverbay Corp., 155 AD3d 439 (1st Dept 2017)

Questions presented: In a case where a firefighter slipped and fell on a wet substance on painted concrete stairs, and was injured, whether Supreme Court properly granted summary judgment dismissing plaintiffs’ claim alleging a violation of General Municipal Law § 205-a, and whether defendant’s submission of a certificate of occupancy indicating that the building was in compliance with all applicable statutes, codes and ordinances shifted the burden to plaintiff to raise triable issues on that claim.\

Supreme Court, Bronx County, granted defendant’s motion for summary judgment dismissing the complaint. The Appellate Division, First Department affirmed.

June Session Leave Grants

Matter of Wegmans Food Markets, Inc. v. Tax Appeals Tribunal of State of N.Y., 155 AD3d 1352 (3d Dept 2017)

Questions presented: Whether an ambiguous tax exclusion should be construed in favor of the taxpayer or the government, whether the Appellate Division correctly concluded that the information services provided to appellant by a nonparty were excluded from sales tax liability under Tax Law § 105 (c)(1), and whether the Appellate Division properly made factual determinations not addressed by the Tax Appeals Tribunal.

The Appellate Division, Third Department annulled the determination of respondent Tax Appeals Tribunal denying petitioner’s request for certain refunds of sales and use tax imposed under Tax Law articles 28 and 29.

Matter of Jordan v New York City Housing Auth., 154 AD3d 618 (1st Dept 2017)

Questions presented: Whether Civil Service Law § 71 applies to labor class employees, whether the Department of Citywide Administrative Services is a necessary party to proceeding that challenged New York City Housing Authority’s denial of petitioner’s application for reinstatement, and whether respondent New York City Housing Authority should have been permitted an opportunity to answer the petition following the denial of its cross motion to dismiss.

Supreme Court, New York County, among other things, 1) granted the petition to the extent of remitting the proceeding to respondent New York City Housing Authority (NYCHA) for compliance with Civil Service Law § 71, 2) denied NYCHA’s cross motion to dismiss the petition as against it, and 3) denied NYCHA’s request to answer the petition; App. Div. affirmed.

Rosa v Delacruz, 158 AD3d 571 (1st Dept 2018)

Question presented: In a no fault automobile insurance case, whether the plaintiff raised an issue of fact as to whether his injuries were causally related to automobile accident.

Supreme Court, Bronx County granted defendants’ motions for summary judgment dismissing Rosa’s complaint based on his failure to demonstrate that he suffered a serious injury to his left shoulder within the meaning of Insurance Law § 5102 (d). The Appellate Division, First Department affirmed.

Collazo v Netherland Property Assets LLC, 155 AD3d 538 (1st Dept 2017)

Question presented: In a case where tenants claim that their landlord overcharged them rent by allegedly taking advantage of luxury decontrol provisions of the Rent Stabilization Law while simultaneously receiving tax incentives under the City of New York’s J-51 program, whether Supreme Court abused its discretion in determining that most of plaintiffs’ claims were within the specialized expertise of the New York State Division of Housing and Community Renewal and dismissing those claims under the primary jurisdiction doctrine.

Supreme Court, New York County granted defendants’ motion to dismiss the overcharge proceeding on the ground that the tenants’ claims should first be determined by the York State Division of Housing and Community Renewal. The Appellate Division, First Department affirmed.

June Decision Days Leave Grants

People ex rel. Allen v Yelich, 159 AD3d 1202 (3d Dept 2018)

Question presented: Where the appellant, who absconded from supervision in New York, was sentenced for an unrelated crime in New Jersey, and the New Jersey court ordered the sentence on New Jersey crime to run concurrently with undischarged portion of the New York sentence, but appellant was not returned to New York State custody to serve the concurrent sentence, whether respondent Department of Corrections and Community Supervision improperly calculated appellant’s maximum expiration date for period of post-release supervision.

Supreme Court, Franklin County denied the appellant’s petition for a writ of habeas corpus, and the Appellate Division, Third Department affirmed.

 

 

The Court of Appeals January, February, and March 2018 Session Leave Grants

Next up as we head toward the start of the 2018-19 Court of Appeals term are the cases in which the Court granted leave to appeal from the January, February, and March 2018 sessions. I previously previewed the September session and October, November, and December session leave grants.

January Leave Grants

Arrowhead Capital Finance, Ltd. v Cheyne Specialty Finance Fund L.P., 154 AD3d 523 (1st Dept 2017)

Question presented: Whether failure of plaintiff’s counsel to maintain an in-state office at the time action was commenced, in violation of Judiciary Law § 470, renders the action a nullity and requires dismissal of the action without prejudice.

Supreme Court, New York County, dismissed the complaint with prejudice as against defendant Cheyne Specialty Finance Fund General Partner and without prejudice as against defendant Cheyne Specialty Finance Fund. The Appellate Division, First Department affirmed.

Matter of Mason H., 154 AD3d 1129 (3d Dept 2017)

Question presented: Whether the Broome County Department of Social Services failed to meet its burden of proof that the father abandoned the subject child, where its only witness addressed the father’s failure to communicate with the child, but not whether the father had any direct contact with the child.

Family Court, Broome County, granted DSS’s application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate the subject child to be abandoned by the father, and terminated the father’s parental rights. The Appellate Division, Third Department affirmed.

February Leave Grants

Matter of Eighth Judicial District Asbestos Litigation (Terwilliger v Beazer East, Inc.), 150 AD3d 1617 (4th Dept 2017)

Question presented: In a purported products liability action where the decedent suffered injuries from exposure to asbestos and coke oven emissions while employed at the Bethlehem Steel plant, whether the coke oven batteries constructed at the Bethlehem Steel plant were “products” subject to products liability theories rather than structures resulting from performance of a contract for construction services.

Supreme Court, Erie County, denied the motion of defendant Honeywell International, Inc., successor in interest to the Wilputte Coke Oven Division of Allied Chemical Corporation (Honeywell), for summary judgment dismissing the complaint against it. The Appellate Division, Fourth Department reversed, granted defendant Honeywell’s motion for summary judgment and dismissed the complaint against it.

Matter of Madison County Industrial Development Agency v State of New York Authorities Budget Office, 151 AD3d 1532 (3d Dept 2017)

Question presented: Whether an industrial development agency had authority to form a local development corporation as a subsidiary under General Municipal Law § 858’s “necessary or convenient” clause.

Supreme Court, Albany County, dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents refusing to recognize petitioner Madison Grant Facilitation Corporation as a subsidiary of petitioner Madison County Industrial Development Agency and requiring petitioner Madison Grant Facilitation Corporation to file separate budget, annual and audit reports.  The Appellate Division, Third Department affirmed.

Matter of Widrick (Carpinelli), 155 AD3d 1564 (4th Dept 2017)

Question presented: Whether the Appellate Division properly concluded that only petitioner’s union, and not petitioner individually, had the right to demand arbitration of a grievance arising from a dispute involving petitioner’s employment.

Supreme Court, Lewis County, denied respondents’ motion to dismiss the petition and granted the petition to compel arbitration. The Appellate Division, Fourth Department reversed, granted the motion, and dismissed the petition.

March Leave Grants

Matter of Retail Energy Supply Assn. v Public Service Commn. of State of N.Y., 152 AD3d 1133 (3d Dept 2017)

Matter of National Energy Marketers Assn. v New York State Public Service Commn., 152 AD3d 1122 (3d Dept 2017)

Questions presented: In a challenge to “Order Resetting Retail Energy Markets and Establishing Further Process,” which imposed various requirements on new and renewal contracts between energy service companies and mass market customers, whether the New York State Public Service Commission has the authority to impose rate-making limitations on energy service companies and whether energy service companies have a property interest in continued access to utility systems, and thus are entitled to procedural due process.

Supreme Court, Albany County, among other things, partially granted petitioners’ application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent resetting retail energy markets and establishing further process. The Appellate Division, Third Department affirmed.

 

Matter of Clark v Villegas, 153 AD3d 437 (1st Dept 2017)

Questions presented: Whether the Appellate Division properly granted writ of prohibition to prohibit enforcement of a Supreme Court order that directed Department of Corrections and Community Supervision to credit respondent with 1,282 days of jail time and whether CPLR article 78 proceeding is proper vehicle to challenge jail time credit calculation.

The Appellate Division, First Department granted a CPLR article 78 petition to prohibit the enforcement of an order of Supreme Court, Bronx County, which ordered respondent New York State Department of Corrections and Community Supervision to credit respondent Dewayne Robinson with 1,282 days of jail time.

 

Up through March, the Court of Appeals had granted 17 cases in total: 3 from the First Department, 1 from the Second Department, 8 from the Third Department, and 5 from the Fourth Department. That’s an interesting trend toward more cases being granted from the upstate Departments, at least through the March 2018 session. We’ll see if it continues through the end of the 2017-18 Court of Appeals term.

 

The Court of Appeals October, November, and December 2017 Session Leave Grants

With the start of the 2018-19 term right around the corner, it’s time to continue my quick look at the cases the Court of Appeals will be hearing during this upcoming term. First were the appeals as of right from the 2017-18 term. Then I previewed the appeals as of right on the SSM track that will be decided without oral argument.

Now I’m back to the cases in which the Court of Appeals granted leave to appeal. I previewed the September 2017 session leave grants a while ago, and up now are the grants from the October, November, and December 2017 sessions.

October Session Leave Grants

Niagara Mohawk Power Corp. v Allied Healthcare Products, Inc., 137 AD3d 1539 (3d Dept 2017)

Questions presented: Whether an affirmative covenant to provide free power to manufacturing facilities on property now owned by defendant Allied Healthcare Products is unenforceable as a burden in perpetuity, whether plaintiff and defendant Albany Engineering are equitably estopped from challenging covenant, and whether defendant Allied Healthcare Products abandoned the power covenant.

Supreme Court, Albany County, among other things, granted the motion of defendant Allied Healthcare Products for summary judgment dismissing, among other things, the second amended complaint against it. The Appellate Division, Third Department reversed, denied the motion of defendant Allied Healthcare Products for summary judgment, granted the motions of plaintiff and defendant Albany Engineering Corporation for summary judgment, and declared that the power covenant at issue is unenforceable. Supreme Court thereafter denied plaintiff’s motion to allow further proceedings to adjudicate the scope of its recoverable damages.

Matter of Eastbrooke Condominium v Ainsworth, 147 AD3d 1510 (4th Dept 2017)

Questions presented: Whether condominium unit owner’s authorization to condominium’s board of managers to act as an agent in proceeding challenging tax assessment for a particular tax year authorizes the board to act as unit owner’s agent for a different year, and whether respondents waived any deficiency in unit owners’ authorizations.

Supreme Court, Monroe County, granted the petitions under Real Property Tax Law article 7 to the extent of reducing the tax assessments for the challenged years, but limited the condominium unit owners entitled to tax refunds. The Appellate Division, Fourth Department affirmed.

November Session Leave Grants

Matter of T-Mobile Northeast, LLC v DeBellis, 143 AD3d 992 (2d Dept 2016)

Questions presented: Whether cellular telephone equipment housed on rooftops in petitioner’s service area are taxable real property under RPTL 102(12)(i) or RPTL 102(12)(b), and whether application of RPTL 102(12)(i) to certain components of petitioner’s cellular telephone equipment violates petitioner’s right to equal protection.

Supreme Court, Westchester County, denied the petition and dismissed the proceeding. The Appellate Division, Second Department affirmed.

December Session Leave Grants

Matter of DeVera v Elia, 152 AD3d 13 (3d Dept 2017)

Question presented: Whether a public school district can impose regulations on a charter school to obtain state funding for pre-kindergarten programming under Education Law § 73 as a partner in the school district’s consolidated application to the New York State Department of Education.

Supreme Court, Albany County, dismissed petitioners’ application in a CPLR article 78 proceeding, to review a determination of respondent Commissioner of Education partially dismissing petitioners’ challenge to certain conditions imposed upon their receipt of certain state funds. The Appellate Division, Third Department reversed, granted the petition, annulled that part of the determination upholding certain conditions imposed upon petitioners’ receipt of certain state funds, and remitted the matter to respondent Commissioner of Education for further proceedings not inconsistent with the decision.

Matter of Mancini v Office of Children and Family Services, 151 AD3d 1494 (3d Dept 2017)

Question presented: Whether compensation benefits awarded for impairment of wage-earning capacity pursuant to Workers’ Compensation Law § 15(3)(v) are subject to the durational limitations of Workers’ Compensation Law § 15(3)(w).

The Appellate Division, Third Department affirmed the decision of the New York State Workers’ Compensation Board, which ruled, among other things, that claimant was entitled to workers’ compensation benefits pursuant to Workers’ Compensation Law § 15(3)(v).

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.

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