Court of Appeals April-May Session: Arguments of Interest for May 1, 2018

The Court of Appeals returns for the final week of the April-May Session with four cases (three arguments) on its argument docket today (the Court’s case summaries can be found here).  The Court will hear arguments on the following issues today: (1) can the State prove that a parent has maltreated her child by using the child to facilitate shoplifting; (2) whether the State may be the proximate cause of injuries sustained in a motor vehicle accident at an intersection where it failed to complete a traffic study or upgrade the traffic control or warning devices; and (3) whether a criminal defendant may be convicted of depraved indifference assault where it was clear that he committed the assault intentionally.

No. 66 Brown v State of New York
No. 67 Brown, as administratrix, v State of New York

You’ve stopped at intersections before where you just can’t see any oncoming cars, trucks, or motorcycles without creeping way too far into the intersection, right? I know I have. Those intersections are dangerous, and result in far too many serious accidents. One such accident is before the Court of Appeals today.

In 2003, the plaintiff, Linda Brown, and her husband were riding a motorcycle on State Route 350 in Wayne County (where I grew up), just east of Rochester. They were driving about 55 miles per hour, which was the speed limit there, when the pickup truck driven by Henry Friend pulled into the intersection. The motorcycle slammed into Friend’s truck, killing Brown’s husband and seriously injuring her.

In the subsequent personal injury action, Brown sued the State, alleging that the intersection was dangerous because of restricted sight lines, the 55 mph speed limit was excessive for that area, and there weren’t enough warning signs of the intersection on the road. Friend testified that he came to a full stop at the intersection, looked both ways, and never saw any oncoming vehicles before the accident.

The Court of Claims agreed with Brown that the intersection was dangerous, and held that the State had prior notice of the dangerous condition due to 17 prior accidents at that intersection between 1996 and 3002. The Court, however, dismissed Brown’s claims, holding that she failed to prove that the State’s failure to complete a safety study and take corrective action was the proximate cause of the accident.

The Appellate Division, Fourth Department reversed on a 3-2 vote, however, and reinstated Brown’s claims. The Court held that the proximate cause issue wasn’t whether the State’s failure to undertake a study was the proximate cause of the accident, but whether the State was aware of the dangerous condition and failed to remedy it, and then that the dangerous condition was the proximate cause.  Using that standard, the Fourth Department held that Brown had shown that the State was negligent, and remitted for a determination of proximate cause.

On remittal, the Court of Claims found the State 100% liable, and awarded about $7 million for Brown’s injuries and her husband’s death.  The Appellate Division, Fourth Department affirmed, and now the Court of Appeals will hear arguments on the proximate cause issue.

What’s interesting here is that the Court held a municipality liable for failure to complete a traffic study on very similar facts about a year and a half ago. Will the Court extend this decision and apply the same standard to the State?  We’ll see.

The Appellate Division, Fourth Department’s orders can be found here (December 2010 order) and here (November 2016 order).

Court of Appeals April-May Session: Arguments of Interest for April 26, 2018

The Court of Appeals wraps up the first week of the April-May Session with only two criminal cases on the argument docket. Each involves claims of actual innocence and when criminal defendants can bring those claims as a basis to vacate their convictions.  Particularly, the Court will hear arguments on the following issues: (1) whether a freestanding claim of actual innocence is cognizable basis to vacate a conviction under CPL 440.10(1)(h), and whether the waives that claim by pleading guilty to the charges, and (2) whether a criminal defendant’s claim that the People committed a Brady violation and that newly discovered evidence warranted vacatur of his conviction, and whether the Court’s rejection of those claims impliedly also rejected his claim of actual innocence.

No. 62    People v Natascha Tiger

When a severely disabled child was admitted to the hospital with what appeared to be scald burns, the defendant, a licensed practical nurse who had given the child a bath earlier that day, was charged with endangering the welfare of a physically disabled person, and pled guilty. Two years later, however, she moved to vacate her conviction based on a claim that she was actually innocent. Medical evidence, she said, showed that the child had an adverse reaction to medication, and wasn’t actually burned.

After County Court denied her application without a hearing, the Appellate Division, Second Department reversed. The Court held that, consistent with its prior precedent, the defendant could raise a claim of actual innocence as a basis to vacate her conviction.  the Court noted, however, that the Court of Appeals has not yet passed on that question. The Appellate Division also rejected the People’s argument that the defendant had waived her claim of actual innocence by pleading guilty to the charges, holding instead that it would offend due process for an actually innocent person to be convicted and barred from raising that claim on a post-conviction motion.

The Court of Appeals will now hear arguments and decide these open, and important, questions.

The Appellate Division, Second Department’s order can be found here.

Court of Appeals April-May Session: Arguments of Interest for April 25, 2018

The Court of Appeals will hear arguments in three cases on this rainy Wednesday, April 25, 2018, the second day of the April-May Session. On the docket today are two criminal appeals about the right to counsel and a civil case about taxing cigarettes sold on an Indian reservation, involving the following issues: (1) whether Tax Law § 471, which imposes a tax “on all cigarettes sold on an Indian reservation to non-members of the Indian nation or tribe and to non-Indians,” violates Indian Law § 6, which prohibits state taxation on an Indian reservation, and the federal Due Process Clause; (2) whether a criminal defendant’s right to counsel was violated when he was questioned by police officers on a homicide that was “factually interwoven” with a robbery charge for which he had an attorney; and (3) whether a criminal defendant’s right to counsel was violated when a police detective, while questioning the defendant on a homicide investigation, mentioned a pending drug charge for which the defendant had counsel.

No. 59     White v Schneiderman 

Eric White, a member of the Seneca Nation, owns a convenience store on the reservation and sells cigarettes. He brought this action against the New York Attorney General and the Department of Taxation and Finance to challenge the validity of Tax Law § 471, which requires him to charge state sales tax on cigarettes sold to non-members of the Tribe. That, he says, violates Indian Law § 6, which states, “No taxes shall be assessed, for any purpose whatever, upon any Indian reservation in this state, so long as the land of such reservation shall remain the property of the nation, tribe or band occupying the same.”  He also contends that the Tribe entered a treaty with the United States that exempts activities on the reservation from state taxation, and that imposing the tax violates the federal Commerce Clause and Due Process Clause.

Supreme Court, however, dismissed his declaratory judgment action, holding that Indian Law § 6 and the treaty only prohibit the taxation of real property, not goods like cigarettes.  The Appellate Division modified slightly, but agreed that only taxation of real property is prohibited.  White, the Court held, can be required to charge sales tax to non-Indians, and this minimal burden doesn’t violate the Constitution.

The Court of Appeals is now asked to decide.  Does the State have any right to require the collection of taxes on cigarettes on an Indian Reservation?  What about for other goods sold to non-Indians? We shall see.

The Appellate Division, Fourth Department order can be found here.

Court of Appeals April-May Session: Arguments of Interest for April 24, 2018

The Court of Appeals returns for the April-May Session (and so do I after a month off) on Tuesday, April 24, 2018. The Court has three cases on its argument docket (the Court’s case summaries can be found here), which involve the following issues: (1) whether accidental disability retirement benefits are a collateral source that must be offset from an award of future damages under CPLR 4545; (2) whether a New York choice of law provision in a nondisclosure agreement required application of both New York procedural and substantive law, such that the New York borrowing statute (CPLR 202) would require the plaintiff to satisfy two different statutes of limitations, New York’s and that of the forum state; and (3) whether the denial of a motion to quash in a criminal trial is appealable, and whether the Appellate Division properly granted the motion to quash based on the qualified protection for a journalist’s nonconfidential material.

No. 58      Matter of People v Conrado Juarez; Frances Robles

In a brutal case of the sexual abuse and murder of a 4 year old, the Court of Appeals will hear arguments on whether the denial of a motion to quash a subpoena in a criminal case is appealable. Should the Court decide that it is, a really interesting question of journalistic privilege lies beneath.

For 22 years, the police were unable to identify the 4-year-old murder victim who was found in a picnic cooler in Manhattan in 1991. When she was eventually identified in 2013, the police questioned her cousin, Conrado Juarez, as the suspect. He confessed after hours of interrogation, and was charged with murder. Two days later, Frances Robles, a reporter with the New York Times, interviewed him at Rikers Island, but Juarez changed his story. Instead of participating in the murder, this time he said he only helped his sister dispose of the victim’s body after she fell down the stairs.

Juarez moved to suppress his confession as involuntary, and in response the police subpoenaed Robles to testify at the suppression hearing and for her notes. Robles moved to quash the subpoena based on New York’s Shield Law, Civil Rights Law § 79-h(c), which generally protects from disclosure the information reporters gather while investigating stories.

Supreme Court denied the motions to quash the subpoenas, balancing the interests in favor of the People’s access to all evidence that could go to show that Juarez’s statements were voluntary.  The Appellate Division, First Department reversed, and granted Robles’s motions to quash, holding

the People have a videotaped confession by the defendant that has been found admissible at trial and that includes statements consistent with other evidence in the case. Under the circumstances, and in keeping with ‘the consistent tradition in this State of providing the broadest possible protection to “the sensitive role of gathering and disseminating news of public events”‘…, we find that the People have not made a ‘clear and specific showing’ that the disclosure sought from Robles (her testimony and interview notes) is ‘critical or necessary’ to the People’s proof of a material issue so as to overcome the qualified protection for the journalist’s nonconfidential material (Civil Rights Law § 79-h[c]).

On appeal, however, the People now argued that the Court lacks jurisdiction to hear the case because a trial court order denying a nonparty’s motion to quash a subpoena in a criminal case isn’t appealable. The People’s argument is based on the Court of Appeals’ decision about one year ago in the Facebook search warrants case, where the Court held that denial of a motion to quash in a criminal case isn’t appealable, and the Court lacks jurisdiction to consider the underlying merits question.

Unless the Court decides to reconsider its prior precedent from only a year ago, which is highly doubtful, or decides that search warrants are somehow different from subpoenas in criminal cases, this case is going to end up just like the Facebook case, dismissed for lack of jurisdiction and remanded for the Appellate Division to do the same. That’s really unfortunate, but it seems to me unavoidable.

The Appellate Division, First Department’s order can be found here.

Sharply Divided Court of Appeals Rejects Per Se Rule that a Gap in Treatment Longer than 2 1/2-Year Statute of Limitations Should Bar Application of Continuous Treatment Doctrine

Imagine you hurt your shoulder and it’s just not getting better. You go to the doctor after trying rehab and he says it’s time for surgery. You schedule the date, head in to the hospital, and the doctor fixes your shoulder, or at least he says he did. He tells you to follow up with him over the next year to watch how you recover from the surgery, and you do. He continues to treat you and then, at the end of the year, he says to follow up “as needed.” After 19 months go by, your shoulder starts to hurt again. You go back to the doctor, and he does a second surgery. You see him twice more over the next 20 months when your shoulder hurts.

More than 2 1/2 years pass, and your shoulder still hasn’t gotten better. Although you’re not very happy with the doctor, you don’t have much choice but to go back to him again. But he isn’t doing shoulder surgeries anymore, so he refers you to his partner. Another surgery is needed.

You’ve had it with these guys. It’s been seven years with chronic shoulder pain. Nothing that the doctor has recommended has helped. Not the rehab, the surgeries, or post-op exercises. Fed up, you leave the doctor’s practice and find a new doctor. And a few years later you sue the doctor for malpractice.

That’s what happened to the plaintiff in Lohnas v Luzi (No. 7). It was a bad situation, and brought to the Court of Appeals the issue whether the doctor continuously treated the plaintiff when there was a break in the visits for a longer time than the 2 1/2-year statute of limitations. If it was continuous treatment, Lohnas’ suit could proceed. If not, she sued too late and the case would have to be dismissed.

In a sharply divided 4-3 decision, the Court of Appeals held that questions of fact exist precluding summary judgment on whether the continuous treatment doctrine tolled the statute of limitations for Lohnas’ claim for medical malpractice against Dr. Luzi. The continuous treatment doctrine, the Court noted, ensures that a patient need not break off a relationship with a doctor and sue for malpractice immediately, but can continue to receive treatment for the original condition and then sue up to 2 1/2 years after the doctor’s care has finished. The treatment must indeed be continuous, however, and must be related to the same condition for which the doctor committed the malpractice.

The majority rejected a per se rule that would have held the continuous treatment doctrine inapplicable as a matter of law where there is a gap in treatment for more than the 2 1/2-year statute of limitations. All doctor-patient relationships are not created equal, the Court reasoned, and whether the continuous treatment toll applies depends on the unique facts of each case. Here, there was enough evidence that Lohnas and Dr. Luzi intended a continuous course of treatment for Lohnas’ shoulder injury to send the case to trial. Dr. Luzi was the only doctor she saw for the injury, and she went back to him repeatedly because she still felt pain. The 30-month gap in visits and direction to return on an as-needed basis didn’t make out a defense as a matter of law, the majority held, so the jury should be allowed to decide.

Judge Wilson, writing for the dissent, took the majority to task for confusing a chronic condition with continuous treatment. Comparing this case to the Court’s decision in Massie v Crawford (78 NY2d 516 [1991]), where the Court held that the continuous treatment doctrine couldn’t be invoked for routine regular doctor appointments, Judge Wilson explained that Lohnas’ routine follow ups for the chronic shoulder condition and the gap in treatment of more than 2 1/2 years meant the continuous treatment doctrine couldn’t apply. Indeed, he noted, Dr. Luzi tried different treatments. The alleged malpractice was improperly installing the humeral head in her shoulder during the first surgery that then wore down her rotator cuff. The second surgery was to fix the rotator cuff issue. And then Lohnas only came back after she was pushed into a wall and hurt her shoulder again.

None of these facts, Judge Wilson explained, implicated the policy concerns underlying the continuous treatment doctrine. Lohnas could have easily left the practice, as she later did, and filed suit. She wasn’t getting any treatment at all between the second surgery and the consult for the third, a period of more than 2 1/2 years.

Public policy animated our creation of the continuous treatment doctrine: a doctor engaged in continuous treatment of a patient should not have her efforts chilled by the filing of a lawsuit, nor should the patient undergoing such treatment be required to suffer the burden of suing the physician while still in her care. Where, as here, the treatment is not continuous, no such policy concerns warrant an exception to the limitations period. Indeed, when continuous treatment is absent, public policy, as embodied in the legislature’s selection of a limitations period, cuts the other way: a plaintiff whose surgery and follow- up appointments have been completed, who has been discharged from the hospital, returns to normal life activities, and still suffers “terrible” pain, is on notice that something may be wrong, and is required to take steps to determine whether she has a claim – including by consulting a different doctor if necessary – and file it within the prescribed period (Dissenting Opn, at 5-6).

The majority’s rule, Judge Wilson reasoned, allows what should be prohibited: manipulation of the statute of limitations by returning to a doctor regularly for routine check ups on a chronic condition.

With the 4-3 split Court, only one thing is really clear. No one really knows what is continuous treatment and what isn’t.

The Court of Appeals’ opinion can be found here.

Zarda is Out: En Banc Second Circuit Holds Sexual Orientation Discrimination is Protected by Title VII

This is the decision that so many have been waiting for. In a historic ruling in Zarda v Altitude Express, the Second Circuit today overruled its’ prior precedent in Simonton v. Runyon, and held that sexual orientation discrimination is discrimination because of sex that finds protection under Title VII.

The comprehensive opinion the majority of the Second Circuit held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination” (Opn, at 20-21). Looking to the text of Title VII, the majority concluded that Title VII’s protection against discrimination “because of . . . sex” extends to sexual orientation because “sex is necessarily a factor in sexual orientation” (Opn, at 21). Leading with the Black’s Law Dictionary definition of sexual orientation—”[a] person’s predisposition or inclination toward sexual activity or behavior with other males or females”—the Court noted that a person’s sexual orientation can’t be identified unless that person’s sex is known as well as the sex of those to whom the person is attracted. As the majority put it,

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

Taking apart the argument that firing an employee for his or her sexual orientation is not firing them because of their gender, the majority held that “this semantic sleight of hand is not a defense; it is a distraction” (Opn, at 23-24). The failure to reference the employee’s gender doesn’t change the fact that “firing a man because he is attracted to men is a decision motivated, at least in part, by sex” (Opn, at 24). Merely using different terminology to achieve the same discriminatory result, the majority held, doesn’t fly under Title VII.

The Court also held that Congress’ failure to protect expressly sexual orientation under Title VII doesn’t undermine the conclusion that the broad language that Congress did use was intended to protect not only the “principal evil,” but also “comparable evils” (Opn, at 27).  Thus, the majority reasoned, the protections afforded to employees against discrimination because of their “sex” was not meant to be exclusive, and necessarily includes protection for sexual orientation too.

This conclusion, the Court held, is also supported by the Supreme Court’s “comparative test” for when an employment practice constitutes sex discrimination. Using the en banc Seventh Circuit’s decision in Hively v Ivy Tech Community College as a salient example, the majority explained if a female employee who is attracted to females is denied a promotion when a male employee also attracted to females is given the promotion, the denial of the promotion (all other things being equal, of course) is because of the female employee’s sex. Thus, it is clear, the majority held, that sexual orientation discrimination is just a subset of sex discrimination and is protected under Title VII.

Having addressed the proper application of the comparative test, we conclude that the law is clear: To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently “but for” his or her sex. In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.

The gender stereotyping theory provided yet another basis to conclude that sexual orientation discrimination is discrimination because of sex, the majority held. When an employer discriminates because it believes that a man cannot, or should not, be attracted to men, but doesn’t discriminate when women are similarly attracted to men, the employer acts on the basis of the employee’s gender. That is clearly protected by Title VII. Thus, the Court explained, the prior framework under Simonton trying to distinguish when a discrimination claim is impermissibly based on sex stereotyping or when it is (formerly) permissible sexual orientation discrimination no longer worked.  The lower courts struggled with the distinction, the majority held, and no basis remained to keep it.

It is also unlawful associational discrimination for an employer to discriminate based on an employee’s romantic association with a partner of the same sex, the majority held.  Harkening back to the Supreme Court’s decision in Loving v Virginia, the majority explained that “policies that distinguish according to protected characteristics cannot be saved by equal application” (Opn, at 54) and so whether an employer adversely treats both men and women for same sex association is no defense to a claim of discrimination under Title VII. Indeed, discrimination based on sexual orientation, the majority held, “is no less repugnant to Title VII than anti-miscegenation policies” (Opn, at 59).

The Second Circuit has now joined the Seventh Circuit in Hively, holding that sexual orientation discrimination is protected under Title VII. This is a huge decision, and one that has been long awaited by LGBT rights advocates. But, it is certainly not the end.  The Eleventh Circuit has declined to agree. And Zarda may well be poised to head up to the Supreme Court, where it faces an uncertain reception. This decision of the en banc Second Circuit, though, to overrule its prior precedent and recognize that no one should be discriminated against on the basis of their sexual orientation or any other protected characteristic is a monumental one.

The Second Circuit’s en banc opinion can be found here.

Court of Appeals: Indenture Trustee Can Bring Third Party Actions to Recover for Fraudulent Redemption of Assets Rendering Debtor Insolvent

Financial fraud is complex. The schemes cooked up by fraudsters are intricate, and the financial maneuvers used are often difficult to follow. The fraud alleged in Cortlandt Street Recovery Corp. v Bonderman (No. 14) is no different.

Breaking it down to the extent I can, a number of private equity investors were interested in acquiring a profitable and debt-free telecom company in Greece, and set up a group of shell companies in Luxembourg to make the buy. The group, called Hellas Group, borrowed heavily (about €1.6 billion) to buy the Greek company, and had very little equity to repay the loans. In another round of borrowing in 2006, Hellas Finance (a subsidiary of Hellas Group) borrowed €200 million in exchange for payment-in-kind notes, which were governed by the indenture that is the focus of this case.

What’s an indenture? An indenture is a legal agreement that vests title of securities, like the payment-in-kind notes here, in a single trustee who is given certain specified powers to act on behalf of all of the noteholders. It’s usually tough to get all noteholders who may have different interests to act collectively, so the appointment of the indenture trustee to act on their collective behalf helps to solve that problem. Generally included in the bundle of rights given to the indenture trustee, which are limited to what’s in the agreement, is the right to bring suit to recover the principal, interest, costs, and fees in the event that the investment tanks and the debtor defaults.

In Cortlandt Street Recovery Corp., at the same time that Hellas Finance issued the payment-in-kind notes, Hellas the parent redeemed €973.7 million in convertible preferred equity certificates, and paid the cash to the private equity investors. For a more in depth look at the Hellas investments, read this Economist piece. When the global financial crisis hit, Hellas Finance defaulted on the payment-in-kind notes, as did another Hellas subsidiary that had guaranteed the notes.

The  indenture trustee, on behalf of all of the noteholders, brought an action to recover the €200 million and interest from Hellas, a number of the Hellas subsidiaries, and the private equity investors, alleging that the convertible preferred equity certificate redemptions were fraudulently intended to render Hellas Finance, the primary debtor, insolvent. Even though the private equity investors weren’t parties to the payment-in-kind notes, the indenture trustee alleged claims against them for breach of contract, fraudulent conveyances, unlawful corporate distribution, and unjust enrichment, and sought to pierce the corporate veil on an alter ego theory.

The private equity investors moved to dismiss, and Supreme Court granted the motion. The Court held that the indenture that specified the indenture trustee’s powers and rights did not allow it to sue for recovery for the alleged fraud. The Court also dismissed the alter ego claims.

The Appellate Division, First Department modified the order on appeal, and reinstated the indenture trustee’s claims against the private equity investors. The Court held, the indenture governing recovery for default under the payment-in-kind notes “confers standing on the trustee to pursue . . . the fraudulent conveyance and other . . . claims, which seek recovery solely of the amounts due under the notes, for the benefit of all noteholders on a pro rata basis, as a remedy for an alleged injury suffered ratably by all noteholders by reason of their status as note holders” (Cortlandt St. Recovery Corp. v Hellas Telecommunications, S.à.r.l., 142 AD3d 833, 833-834 [1st Dept 2016]). The Appellate Division also reinstated the alter ego theory claims, and then granted leave to the Court of Appeals.

Because the right of the indenture trustee to bring suit is defined by the indenture agreement, the Court of Appeals began its analysis with normal principles of contract law. A contract means what its unambiguous words say. The contract’s language has to be read in context of the obligations. And a court can’t read any language of an agreement to be meaningless. In this case, the indenture agreement provided:

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

That’s pretty clear, the Court held.  “[A]ny available remedy” means any remedy at law or in equity. “The plain meaning of section 6.03, then, is to authorize a trustee to pursue any lawful means of enforcing the noteholders’ rights, against any individual or entity, based on any viable theory of recovery in order to secure repayment upon the event of a default on the debt to noteholders” (Opn, at 10).

In the context of this case, that means that the indenture trustee isn’t just limited to asserting claims against Hellas Finance, as the debtor, or the Hellas subsidiary, as the guarantor. It can go after the private equity investors too, as long as the recovery it is seeking is for the principal, interest, and related costs of the payment-in-kind notes on behalf of all of the noteholders.

The Court, in dicta, also noted that its plain meaning interpretation of the indenture was consistent with the interpretation of the virtually identical language of the Revised Model Simplified Indenture, and the related commentary by the American Bar Association. The model indenture, the Court noted, appears to have been the form for the indenture in this case, and so the parties surely would have expected the two to have been given the same construction.

The Court was careful to caution, however, that this interpretation of the indenture only holds for post-agreement fraud, like the one alleged here. For fraudulent inducement claims based on pre-indenture misrepresentations, the interpretation is different. In that kind of case, the “any available remedy” language does not give the indenture trustee any right to bring claims for violations of the federal or state securities laws, primarily because the individual noteholders likely will be in different positions, which could create conflicts for the trustee, and can bring their own claims.

Like the Appellate Division, the Court of Appeals too agreed that the indenture trustee had validly stated alter ego theories against the private equity investors. Whether the trustee can make out that case, however, is a different question for a different day.

The case will now proceed back in the trial court, with the indenture trustee trying to show that this all was just a massive fraud to line the private equity investors’ pockets, and the investors arguing that these were legitimate recapitalization efforts that just didn’t end up working out. I’ll leave it to the financial investment experts to guess how that’s going to come out.

The Court of Appeals’ opinion can be found here.


Plurality of Court of Appeals Holds Party Barred from Asserting a Federal Compulsory Counterclaim in a Subsequent State Court Suit

A case about movie investments is the latest that has closely divided the Court of Appeals. Actually, the issue before the Court had absolutely nothing to do with the movie or the lost investment. Instead, it’s the kind of issue that sparks interest in the community of appellate lawyers who look at how the courts work—whether res judicata principles bar assertion of a federal compulsory counterclaim in a later state court action when it wasn’t brought in an earlier federal suit on similar facts. Fascinating, I know.

In Paramount Pictures Corporation v Allianz Risk Transfer AG (No. 16), Allianz invested in a Paramount film, but agreed to waive any claims against Paramount and not to sue if the investment went south. The investment tanked, and Allianz sued Paramount in federal court anyway, notwithstanding the waiver of claims and bar to lawsuits. Paramount defended the litigation based on the waiver provision, but never raised the covenant not to sue as an affirmative defense or pleaded Allianz’s breach of it as a counterclaim in the federal suit.

After the federal court predictably dismissed the case because of the waiver provision, Paramount brought this breach of contract suit in state court based Allianz’s breach of the covenant not to sue. Allianz moved to dismiss, arguing that res judicata barred Paramount’s breach of contract claim because it was a mandatory counterclaim that was never asserted in the federal suit and was barred by Rule 13(a) of the Federal Rules of Civil Procedure.

Rule 13(a) requires any party to a suit to assert any mandatory counterclaims that it has in that litigation or else they will later be barred from doing so. That rule has never before applied to New York litigation. Instead, New York is a permissive counterclaim jurisdiction, where a defendant to a New York litigation has no obligation to assert any counterclaims, but can wait to assert its own claims in a separate later action.

Recognizing that New York hasn’t subscribed to Rule 13(a)’s mandatory counterclaim rule, Supreme Court denied the motion to dismiss, citing New York’s permissive counterclaims rule under CPLR 3011. To adopt the federal rule, the Court held, would conflict with New York’s rule.

The Appellate Division, First Department, however, reversed and dismissed the suit. The Court held that Rule 13(a) should be applied in state court litigation, and Paramount’s breach of contract claim was thus barred by res judicata for failure to assert it as a mandatory counterclaim in the federal suit.

A plurality of the Court of Appeals affirmed, in a closely split decision. Three judges joined the plurality opinion (Judges Garcia, Stein, and Fahey), two concurred in the judgment only but for different reasons (Judge Rivera and Chief Judge DiFiore), and one dissented (Judge Wilson). What really split the Court was whether it should even be deciding whether to apply federal res judicata precedent to decide whether Paramount’s breach of contract claim should be barred in state litigation.

Judge Garcia, writing for the plurality, began with the principle that the US Supreme Court has the last word on the preclusive effect of federal judgments. And because federal judgments flow from federal courts exercising different types of jurisdiction—generally either federal question or diversity—the federal rules of preclusion are different for each. For a federal judgment based on federal question jurisdiction alone, the Supreme Court has held, federal res judicata principles apply. For diversity jurisdiction cases, state preclusion rules apply.

But what about so-called mixed jurisdiction cases, where both federal question claims and diversity claims are determined in a case? As Judge Garcia pointed out, “[t]he Supreme Court has not squarely addressed the applicable federally prescribed rule of decision – the uniform federal rules or state preclusion law – in a case where, as here, the judgment in the parties’ federal action encompassed both federal- and state-law claims” (Plurality Opn, at 6). Whether the Court of Appeals should answer that open question of federal law on its own split the Court.

Judge Garcia and the plurality decided it should, and held that federal law applied because applying state law to a mixed jurisdiction case would be contrary to “federal interests” (Plurality Opn, at 7). Judge Garcia explained,

That made a state law res judicata analysis unnecessary to decide whether Paramount’s claim should be barred in the state litigation, the plurality held.

Under federal claim preclusion principles, which look at whether the two claims arise from the same transaction or series of transactions, whether the same evidence is needed for both, whether the facts needed for the second claim were also presented in the first, the plurality held that Paramount’s claim was barred. The investors’ claims in the federal suit and Paramount’s counterclaim were too related not the be tried together. Paramount’s failure to assert the counterclaim in that prior action, thus, barred it from bringing a later state court action to enforce the covenant not to sue.

Judge Rivera and the Chief Judge disagreed with the plurality’s decision to reach the unsettled question of the preclusive effect of the federal judgment in a mixed jurisdiction case. In fact, they argued, the question need not have been answered at all because Paramount’s claims were barred regardless of which res judicata principles applied. As the plurality agreed, Paramount’s claim for breach of the covenant not to sue arose out of the same series of transactions as Allianz’s claims in the federal action, and thus were barred because Paramount did not assert its claim when it had the chance to do so. Judge Rivera criticized the plurality for going too far in what essentially amounted to a mistaken advisory opinion.

Judge Wilson, dissenting, disagreed with both and argued that the Supreme Court, had it addressed the issue of the preclusive effect of a federal judgment in a mixed jurisdiction case, would have parsed the claims based on their jurisdictional predicate. Paramount’s breach of contract counterclaim is a state law claim over which the federal district court had diversity jurisdiction, he argued. So the Supreme Court’s precedent would require application of state res judicata principles, and state law would not bar Paramount’s claim here.

Judge Wilson also argued that the plurality had fundamentally confused FRCP Rule 13(a) with federal res judicata principles as if the two were synonymous. They are not, Judge Wilson noted.

Further, Judge Wilson contended, Rule 13(a)’s compulsory counterclaim rule is a policy choice to protect the federal courts from repeated litigations over the same subject. But that policy doesn’t come into play when the counterclaim is later asserted in state court. It is the state courts, not the federal ones, that would be burdened. And New York’s permissive counterclaim rule is a different policy choice. Indeed, as a Judge Wilson put it, “[i]t would be quite strange, though, for the federal court to ‘extend’ the preclusive effect of its judgment to a subsequent claim, arising from the same transaction or occurrence, brought by a defendant seeking to litigate a state law claim and have his or her own day in state court, where the state has made the choice to allow a defendant that option. Unless a judgment on the separately-filed claim would nullify or undermine the federal judgment, federal courts have neither a res judicata interest nor an efficiency interest in that outcome” (Dissenting Opn, at 14).

I tend to agree with Judge Wilson that the plurality’s approach, effectively applying Rule 13(a) in New York based on federal res judicata principles, ignores the unique jurisdictional based on which state law claims can be heard in federal courts, and then what procedural rules apply to those claims. Although I won’t go so far as to guess how the Supreme Court would answer this unsettled question, I think Judge Wilson’s detailed approach makes sense. State law claims litigated in federal court don’t become any less state law claims merely because they are pleaded together with federal question claims. So, state law procedural rules and res judicata principles should apply when a later state court suit is brought to prosecute a cause of action that could have been asserted in the prior federal action. In that case, New York’s policy choice to allow counterclaims to be litigated separately should rule the day, not federal procedural policies. Nevertheless, the plurality’s approach is now the law of New York. Parties beware.

The Court of Appeals’ opinion can be found here.

Second Department Joins the Third Department in Applying the Child of the Marriage Presumption to Same Sex Spouses

It was only a few weeks ago that the Third Department held, for the first time in New York, that a married same sex couple is entitled to the presumption that a child born during their marriage is a child of the marriage. Now, the Second Department has agreed.

In Matter of Joseph O. v Danielle B., the Second Department faced the same situation that the Third Department addressed in Matter of Christopher YY. v Jessica ZZ. Joseph O. sought to establish his paternity to a child born to Danielle and her wife, Joynell, by artificial insemination using Joseph’s sperm. Like in Christopher YY., Joseph expressly waived any right to seek to establish parental rights or visitation, yet went back on the deal and petitioned Family Court to be declared the child’s father and for visitation.

Danielle and Joynell moved to dismiss the paternity and visitation petitions, arguing that they, as married spouses, were entitled to the presumption of legitimacy, that their child born via artificial insemination was a child of their marriage.  But Family Court held that Joseph had shown enough proof that he was the child’s father that the burden shifted to Danielle and Joynell to show it was not in the best interests of the child to do paternity testing or to declare Joseph the child’s father. Family Court also held that questions of fact existed whether equitable estoppel should bar Joseph from asserting paternity because Danielle and Joynell had permitted him to visit the child three or four times per year.

On appeal, the Second Department began its opinion discussing the irrebuttable statutory presumption of legitimacy that Domestic Relations Law § 73 attaches when a couple has a doctor perform the artificial insemination. Because that wasn’t the case here, the Court held that Danielle and Joynell weren’t entitled to the statute’s irreuttable presumption and couldn’t establish their parentage under section 73. That, however, wasn’t the end of the inquiry. The Court held instead, “Domestic Relations Law § 73 was not intended to be the exclusive means to establish the parentage of a child born through artificial insemination of a donor.”

Turning then to the common law presumption of legitimacy, and relying heavily on the Third Department’s decision in Christopher YY., the Second Department too held that Danielle and Joynell were entitled to the rebuttable presumption that the child born during their marriage was legitimate. Although the Court declined to prescribe what proof would be necessary to rebut the presumption, much like the Third Department did, the Court held that the paternity petition should be dismissed based on equitable estoppel. Joseph agreed to give up his rights, didn’t establish a parenting relationship with the child, and his few visits over 3 years didn’t undermine Danielle’s and Joynell’s parental roles. So, the Court held, Joseph can’t now assert that he is the child’s parent.

Like Christopher YY., this is a significant win for LGBT rights, especially in the important Family Law arena. What’s more, because the Second and Third Departments now agree that the child of the marriage presumption applies to married same sex couples, it’s even less likely that the Court of Appeals will need to address this issue. Because of an old New York rule that makes an Appellate Division decision binding statewide—not just in the Department in which the trial courts sit—until a conflict among the Departments emerges, the now settled Appellate Division precedent already applies throughout the State and is binding in all Family Court proceedings. Unless the Court of Appeals is keen to take on the issue simply to affirm the settled Appellate Division rule, which I think it would given Judge Abdus-Salaam’s monumental decision in Matter of Brooke S.B. v Elizabeth A.C.C., it would take either the First or Fourth Departments disagreeing and creating a conflict for the Court of Appeals to weigh in.

The law in New York now stands firm: same sex couples have the same right to a presumption that their children are legitimate that opposite sex couples always had. And that’s the way it should be.

The Appellate Division, Second Department’s decision can be found here.

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