Thursday, December 31, 2009

2009: Waiting for 2010

As I look back on 2009 I realize that I will not know the results of many of my appellate efforts until 2010.

Unlike trial attorneys who quickly learn the result of their labors when the verdict is announced, appellate lawyers often will not know the outcome of an appeal until many months after the case has been argued. An appellate decision is the collective effort of a panel of judges. Drafting the opinion, and getting all the judges to agree, can take time. And if there is a dissenting opinion, the process can take even longer.

In a number of instances, therefore, my clients and I must wait until 2010 for the outcome of appeals I argued in 2009. In March I appeared before the Appellate Division on behalf of a company unhappy with the way in which the lower court addressed a fee award made by arbitrators to the company's attorneys pursuant to the fee arbitration program established under the Rules of the Chief Administrator of the Courts. See, Rules of the Chief Administrator § 137.0 et seq. In the company's view, the lower court made additions to the fee award which are not authorized by New York law.

In August, I argued before the United States Court of Appeals for the Second Circuit on behalf of a group of law firms that the District Judge correctly ruled that the firms, which did not prevail in their suit against the defendant corporation, did not engage in bad faith litigation and, therefore, should not be required to pay the defendant's substantial legal fees.

I am also waiting for (a) the result of an appeal from the Surrogate's Court which maintains that the Surrogate erroneously ruled that a husband is not disqualified from taking his spousal share of his wife's estate although he abandoned her 32 years before her death; (b) the result of an appeal which maintains that after a judge has recused himself from a case he cannot later sua sponte reenter the case; and (c) the result of an Article 78 proceeding in the Appellate Division.

One wait has turned out well. My application for leave to appeal to the New York Court of Appeals in a criminal case, pending since July, was granted this month. Once a case is accepted for review by the Court of Appeals, it will move along pretty quickly. I, therefore, feel confident I will not have to wait until 2011 for a decision.

Happy New Year to all.

Monday, December 14, 2009

A Busy December

While an appellate practice is generally more "relaxed" than a trial lawyer's practice because deadlines are more spaced apart in appellate courts, December has been more hectic for me than usual.

First, on December 2nd I argued a very interesting civil appeal before the Appellate Term, Second Department: after a judge has recused himself from a case, and another judge is presiding over the matter, can the first judge sua sponte "revoke" his recusal and direct that a trial proceed before him?

There is little case law in New York or elsewhere on the issue (probably because few judges try to undo a recusal), but the general rule is that after a judge has recused himself he no longer has any authority to do anything further in the case. That is what I argued, and now I await the appellate determination.

Second, on December 3rd I chaired the New York State Bar Association's all-day appellate practice CLE in Manhattan. About 120 lawyers attended. By all accounts it was very well received, with some attorneys telling me it was the best CLE program they had ever attended!

Third, on December 4th I appeared in Supreme Court, Kings County, for an extended oral argument of a motion pursuant to Criminal Procedure Law Article 440 which is related to a homicide appeal I am handling.

Fourth, on December 7th I filed a brief with the Appellate Division, First Department, which raises the question of whether attorney's "fees on fees" can be awarded under a judicial stipulation of settlement which provides for attorney's fees, but does not expressly provide for "fees on fees"?

Fifth, on December 17th I will appear before the Appellate Division, First Department, for oral argument of an Article 78 proceeding.

Busy, yes. But fortunately each case is unique, and each case raises absorbing appellate issues.

Monday, November 30, 2009

Appellate Practice CLE This Week

If you want to become familiar with the basics of appellate practice in New York, or you simply want to fine tune your appellate skills, this Thursday, December 3, I will be chairing an all-day Continuing Legal Education program on appellate practice sponsored by the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association.

The program, which begins at 9 a.m. and concludes at 4:45 p.m., will he held at the Affinia Manhattan Hotel, 371 Seventh Avenue, at 31st Street.

The program will present insiders' views from Stuart Cohen, the Clerk of the New York Court of Appeals; John W. McConnell, Clerk of the Appellate Division, First Department; and James Pelzer, Clerk of the Appellate Division, Second Department. Justice Angela M. Mazzarelli, of the Appellate Division, First Department, will speak on brief writing and oral argument, and experienced appellate attorneys will address such matters as stays pending appeal, and preservation of error.

The session will conclude in the afternoon with a panel discussion, "Differences in Briefing and Arguing a Case in the Court of Appeals and in the Appellate Division." Panelists will include two experienced appellate attorneys and Chief Judge Jonathan Lippman and Justice Steven W. Fisher, of the Appellate Division, Second Department. Former Justice of the Appellate Division Betty Weinberg Ellerin will chair the panel.

This is a wonderful and valuable opportunity to hear from very experienced appellate judges and attorneys. A 487 page book is included with the program which carries seven CLE credits. Walk-in registration is available.

Friday, November 20, 2009

U.S. Supreme Court: Again, No Denial of the Effective Assistance of Counsel

For the second time in eight days the United States Supreme Court has unanimously reversed a United States Court of Appeals and ruled that a criminal defendant facing the death penalty was not denied his constitutional right to the effective assistance of counsel.

Last week I reported that the Court in Bobby v. Van Hook concluded that the Sixth Circuit had erred when it ruled that the defendant was denied the effective assistance of counsel at the sentencing phase of his capital trial.

Earlier this week in Wong v. Belmontes the Court reversed the Ninth Circuit and concluded that the defendant was not denied the effective assistance of counsel at the sentencing phase of his capital trial. While the Court issued a per curiam opinion, the opinion is notable for the extraordinary detail with which the Court examines the facts to reach its conclusion that the defendant was not prejudiced by the tactical choices made by defense counsel at the sentence hearing before the jury. The opinion can be found here.

Tuesday, November 17, 2009

Second Circuit: The "Fifth Avenue Rule" for New York City Parades

Fifth Avenue in Manhattan is the most famous and most desirable parade route in New York City.

Informally since 1971, and by statute since 2001, the City will not grant a permit for a parade on Fifth Avenue to a "new" parade--a parade which has not previously marched on Fifth Avenue. The City first adopted the informal rule after the number of Fifth Avenue parades increased to 18, and it justifies the "Fifth Avenue Rule" on the grounds of the "over-saturation" of parades in one of the most congested areas of the City--midtown Manhattan.

In International Action Center v. City of New York the United States Court of Appeals for the Second Circuit today upheld the constitutionality of the Fifth Avenue Rule, concluding that the rule is not content based in violation of the First Amendment, but applies equally to all "new" parades regardless of the political or cultural views being expressed in the parade. The decision can be found here.

I had long noticed that the groups parading on Fifth Avenue were the same year after year. I now understand why: the Fifth Avenue Rule.

Friday, November 13, 2009

U.S. Supreme Court Update

Since the opening of the new Term of the United States Supreme Court in October, the Court has issued two opinions. The first, Corcoran v. Levenhagen, I discussed here on October 23.

Earlier this week in Bobby v. Van Hook, the Court unanimously reversed the United States Court of Appeals for the Sixth Circuit and concluded that the defendant was not denied his constitutional right to the effective assistance of counsel at the sentencing phase of his capital trial.

The defendant Van Hook was tried in 1985. The Supreme Court's opinion is notable for two reasons. First, it is highly critical of the Sixth Circuit's reliance on the American Bar Association Guidelines for capital cases issued in 2003, or 18 years after Van Hook's trial.

Second, the Court is critical of the Sixth Circuit treating ABA guidelines as "inexorable commands with which all capital defense counsel 'must fully comply.'" The Supreme Court's opinion emphasizes that ABA standards are "only guides" and are not the "definition" of what is reasonably expected of defense counsel. The decision can be found here.

New Supreme Court Data Bank: the Supreme Court Database, which contains a wealth of information about Court cases since 1953, is now online. It is supported by funding from the National Science Foundation. It can be found at Thank you to for bringing this to my attention.

Tuesday, November 3, 2009

In the Supreme Court Tomorrow: Prosecutorial Immunity

The United States Supreme Court is hearing oral argument in eight cases this week relating to such matters as habeas corpus, bankruptcy, and the fees charged by investment advisers of mutual funds.

For me the most interesting case is Pottawattamie County, Iowa v. McGhee which will be argued tomorrow and raises the question of the limits on prosecutorial immunity from civil suit.

The Supreme Court has long held that prosecutors are immune from civil suit for damages under 42 U.S.C. § 1983 for actions and decisions taken in connection with the prosecution of a case. In Pottawattamie County the claim is that the prosecutor procured false testimony during the investigation of a case and then used that testimony against the defendant at trial. The United States Court of Appeals for the Eighth Circuit concluded that there is no prosecutorial immunity "where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial."

Eight amicus briefs have been filed with the Court representing the views of over 40 states and organizations.

Second Circuit: Costs on Appeal

Pursuant to Rule 39 of the Federal Rules of Appellate Procedure an award of costs can be made to the party prevailing on an appeal.

The United States Court of Appeals for the Second Circuit ruled yesterday in Moore v. The County of Delaware that while the award of costs to the prevailing party is "the norm and not the exception," an appeals court retains the discretion to determine whether the award of costs is appropriate in a particular case. The decision can be found here.

The plaintiff sued law enforcement personnel for an illegal search. While the Second Ciruit had concluded in a prior ruling that the plaintiff's constitutional rights were violated, it also concluded that in the circumstances here the defendants were entitled to qualified immunity from suit, and, therefore, they are the prevailing party on the appeal.

In yesterday's decision the court concluded that in light of the fact that the litigation was brought in good faith by the losing party--he had shown constitutional wrongdoing--and in light of the "meager financial resources" of the losing party, it would not award costs to the prevailing party.

Tuesday, October 27, 2009

N.Y. Court of Appeals: Late Service or Filing of a Notice of Appeal

In New York a party taking an appeal must follow a two-step process: he must serve on the adverse party a notice of appeal, and he must file the notice of appeal "in the office where the judgment or order of the court of original instance is entered." CPLR § 5515 subd. 1. That "office" is often the County Clerk's office when the appeal is to the Appellate Division.

It is best to serve the adverse party first because the County Clerk will often require that proof of service on the adverse party be attached to the notice of appeal filed with that office.

It may happen, however, that the party appealing will do only one of the two steps. For example, he may serve the adverse party but forget to file the notice of appeal with the County Clerk.

When this occurs the party appealing can utilize CPLR § 5520(a) to secure permission from the trial or appellate court for an extension of time to cure the omission. Authority to grant permission to cure the omission exists under the statute as long as the initial service or filing was "timely." Timeliness is established by CPLR § 5513. In sum, if one of the two steps is done on time, a court can grant permission for a late step two.

All of this is critical because the timely taking of an appeal is jurisdictional: an appellate court has no jurisdiction to entertain an appeal if the notice of appeal is served and filed late.

The Court of Appeals concluded today in M Entertainment, Inc. v. Leydier that the Appellate Division, First Department, erroneously dismissed an appeal when the appellant timely filed the notice of appeal with the County Clerk, but did not employ the correct method of service by mail on the adverse party. Instead of dismissing the appeal, the Appellate Division should have determined whether to exercise its discretion under CPLR § 5520(a) to grant additional time to serve the adverse party in the correct manner.

The case is a good reminder of the importance of serving and filing the notice of appeal in a timely fashion, and it is also a good reminder of the availability of CPLR § 5520(a) when either the filing or the service is not done in a timely manner. The decision can be found here.

Friday, October 23, 2009

Supreme Court: Appellate Courts Must Give Reasons for Decision

It is always good to be reminded that the force, persuasiveness, and acceptability of an appellate court opinion will depend upon the court giving reasons for its decision. When that reminder comes from the United States Supreme Court it is worth taking note of it.

Earlier this week in Corcoran v. Levenhagen the Supreme Court admonished the United States Court of Appeals for the Seventh Circuit for directing, without explanation, that a petition for a writ of habeas corpus be dismissed.

Corcoran had been convicted of murder in Indiana state court and sentenced to death. In his petition for a writ of corpus filed in the United States District Court he alleged five errors had made the state sentencing proceeding constitutionally defective. The District Judge granted the writ on one of those grounds--his sentence violated the Sixth Amendment--and ordered that he be resentenced to a penalty other than death. The court did not address Corcoran's other claims because they were "rendered moot" by the order that he be resentenced.

On appeal the Seventh Circuit reversed the district court's Sixth Amendment determination, stated Corcoran could be sentenced to death, and did not address his other sentencing claims. Corcoran sought a rehearing on the grounds his other sentencing claims should be addressed. The Seventh Circuit denied a rehearing.

A unanimous Supreme Court vacated the ruling of the Seventh Circuit, concluding it had erred in disposing of Corcoran's other claims "without any explanation of any sort." The district court should have been directed to consider Corcoran's other claims or the Seventh Circuit "should have itself explained why such consideration was unnecessary." The opinion can be found here.

This is an important reminder that appellate rulings cannot engender respect unless courts explain themselves.

Thursday, October 22, 2009

The Bar Was "Overcrowded"

In May I reported on a decision of the Appellate Division, First Department, which reversed a determination of the State Liquor Authority (SLA) revoking a bar's license on the grounds that the bar permitted "overcrowding" in violation of SLA rules. In the Appellate Division's view the SLA's determination was not supported by substantial evidence as required by CPLR § 7803 subd. 4.

Today in Matter of 47 Ave. B East v. New York State Liquor Auth. the New York Court of Appeals reversed the Appellate Division and in a very brief memorandum opinion concluded that the SLA determination was supported by substantial evidence. The opinion can be found here.

I have long believed that the "substantial evidence" test for reviewing administrative agency decisions, as interpreted by the Court of Appeals, calls for too little judicial oversight of agency rulings which seriously affect livelihoods and licenses. This is unfortunate.

Monday, October 19, 2009

My Argument in the N.Y. Court of Appeals Tomorrow

Tomorrow I will appear for the appellant before the New York Court of Appeals in Matter of Hausman, Deceased.

In 2001 a grantor conveyed real property in Brooklyn to a Limited Liability Company (LLC). Prior to the date of the deed the LLC had prepared its Articles of Organization and its Operating Agreement in accordance with New York's Limited Liability Company Act. It did not, however, file the Articles of Organization with the Secretary of State until 14 days after the date of the deed.

After the death of the grantor, some of her heirs asserted that the conveyance to the LLC was void because the LLC did not exist on the date of the deed inasmuch as it did not file with the Secretary of State until 14 days later. The Surrogate's Court, Kings County, concluded that the conveyance was valid because the grantee was a de facto LLC on the date of the deed. The Appellate Division, Second Department, reversed and concluded the grantee was not a de facto LLC on the date of the deed.

Since the 19th century the Court of Appeals has recognized the de facto corporation doctrine: a corporation will be deemed to exist although it has not completed all the organizational steps to be deemed de jure. The situation arises most commonly when the corporation is organized and is conducting business, but has not filed its certificate of incorporation with the Secretary of State.

In Matter of Hausman the Court will address whether the de facto corporation doctrine applies to a LLC, and if so, whether the LLC here had a de facto existence on the date of deed. The Court of Appeals has not addressed the de facto corporation doctrine in over 50 years.

I was not involved in any of the proceedings in the lower courts. After the attorneys maintaining that there was a de facto LLC lost in the Appellate Division, I was brought in to seek leave to appeal to the Court of Appeals. My motion for leave was granted.

Tuesday, October 13, 2009

U.S. Supreme Court to Hear Attorney Fees Case

Some federal statutes contain fee-shifting provisions under which the prevailing party is entitled to an award of attorney's fees to be paid by the losing party. These fee-shifting provisions are present, for example, in federal civil rights, employment discrimination, and age discrimination statutes.

In determining the attorney fee to be awarded to the prevailing party, the "lodestar" calculation is used by federal district courts: the number of hours expended by the attorney is multiplied by what the court considers to be the appropriate hourly rate for the attorney. The court can then adjust the fee to take into consideration such factors as the financial risk taken by the attorney in litigating the matter.

Tomorrow morning the United States Supreme Court will hear oral argument in Perdue v. Kenny A., which raises the question of whether a court can enhance the lodestar calculation based on the quality of counsel's performance and the results obtained for the client.

The case has attracted wide attention and fifteen amicus briefs have been filed with the Court. Seven of the amicus briefs are on behalf of governments or government agencies which must pay prevailing party legal fees when they lose the case. As is to expected, they oppose the enhancements to the lodestar calculation. For example, one amicus brief was submitted on behalf of 30 states. New York did not join in this brief.

The remaining amicus briefs were filed on behalf of an assortment of organizations and law firms which often bring suit under statutes which have fee shifting provisions. These briefs support enhancements to the lodestar calculation.

Monday, October 12, 2009

N.Y. Court of Appeals This Week

Beginning tomorrow, the New York Court of Appeals will hear oral argument in 13 cases this week. There are ten civil cases, and three criminal cases. Two of the civil cases will generate the most attention.

Same-sex Unions: in Hernandez v. Robles, 7 N.Y.3d 338 (2006), the Court of Appeals ruled that it is not unconstitutional for the State of New York, under the Domestic Relations Law, to limit marriages entered into in New York to opposite-sex couples.

In Godfrey v. Spano and Lewis v. New York State Department of Civil Service the Court will consider whether government agencies can extend to same-sex couples who married in other jurisdictions such as Canada the same benefits those agencies extend to opposite-sex married couples. For example, in Lewis v. New York State Department of Civil Service the Department of Civil Service extends health insurance benefits of state and local government employees to same-sex spouses.

Eminent Domain: in Matter of Goldstein v. New York State Urban Development Corp. the Court will address the use of eminent domain to take property on the site of the proposed Atlantic Yards project in Brooklyn, the centerpiece of which will be a new arena for the New Jersey Nets basketball team.

Under the Fifth Amendment of the United States Constitution private property shall not be "taken for public use, without just compensation." In Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court gave a broad interpretation of "public use."

Article I, § 7, of the New York State Constitution similarly declares that "private property shall not be taken for public use without just compensation." In Matter of Goldstein the Court of Appeals will address whether the Public Use clause in the State constitution is narrower than that in the Federal constitution and prohibits the use of eminent domain to benefit a private developer.

The decision in Matter of Goldstein will be of major significance. Its most immediate impact will probably be on Columbia University's plans to expand on the west side of Broadway in Manhattan to 125th Street. A few individuals have refused to sell their properties to the university, and the brewing legal question is whether the State of New York can use eminent domain to condemn those properties for the benefit of the university.

Supreme Court Tomorrow: Major Right to Counsel Case

The United States Supreme Court will hear oral arguments in two cases tomorrow morning. The first case, Padilla v. Kentucky, is perhaps the major criminal procedure case of the Term.

Under federal immigration law a defendant who is not an American citizen can be deported if he is convicted of a crime which is designated an "aggravated felony." Defendant Padilla is not an American citizen. He is a legal permanent resident of the United States.

Prior to pleading guilty Padilla was advised by his attorney that his guilty plea would not affect his immigration status. The attorney's advice was incorrect--the crime to which he pled is an aggravated felony--and Padilla faces deportation because of the conviction.

Padilla sought to withdraw his guilty plea, but the Supreme Court of Kentucky held that his constitutional right to counsel in a criminal case did not include the right to receive accurate advice from his attorney about the immigration consequences of his guilty plea.

The United States Supreme Court will now review that determination. It is well settled that a defendant who states that he wishes to plead guilty must be informed of the consequences of that plea, such as the constitutional rights he is waiving and the sentence he can face if he pleads guilty. As the impact of federal immigration laws on criminal cases has become more apparent in recent years, there have been a growing number of cases across the country which address whether a defendant must also be informed--by his attorney or by the judge--of the immigration consequences of a plea of guilty. Padilla v. Kentucky should resolve the matter. Five amicus briefs on behalf of an assortment of organizations have been filed with the Supreme Court on behalf of Padilla. An amicus brief on behalf of 27 states supports the conclusion reached by the Supreme Court of Kentucky. New York did not join in that brief.

The second case tomorrow, Smith v. Spisak, addresses a procedural matter under the federal statute governing petitions for writs of habeas corpus.

Saturday, October 10, 2009

The Questions Justice Sotomayor Asks

When she sat on the United States Court of Appeals for the Second Circuit, Justice Sonia Sotomayor was known for her pointed questioning of lawyers appearing before the Court. The issue even arose at her Senate confirmation hearing, when there were suggestions by some who did not vote for her that her questioning of attorneys bordered on the rude.

How she conducted herself during the first week of the new Term of the United States Supreme Court has now become the subject of press scrutiny. Newspaper articles indicate that although she is the junior Justice on the Court, she has not been shy about asking lawyers questions during oral argument. The American Bar Association's summary of the press coverage can be found here, and a New York Times article can be found here.

Friday, October 9, 2009

A Brandeis Appeal

It is always interesting, and sometimes fascinating, to see the legal work a United States Supreme Court Justice did before he went on the Court. I was, therefore, pleased to recently come upon an appeal Louis D. Brandeis handled during his many years as a very successful Boston attorney.

In Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N.E. 929 (1887), the firm of Warren & Brandeis represented the appellee paper companies which objected to a regulation of the Boston board of health which required that rags which entered the city to be used in the manufacture of paper had to be disinfected. Apparently the companies objected that the Boston Disinfecting Company was granted a monopoly to do the disinfection. They also objected that the rags arriving in Boston harbor had already been disinfected elsewhere, so the disinfection by the Boston Disinfecting Company was unnecessary and costly to the paper companies.

While the paper companies were successful in the trial court, on appeal Brandeis did not prevail: the appellate court concluded that under the city charter the city council could delegate to the board of health the authority to make regulations necessary for the public health.

What makes the appeal interesting is that Brandeis raised the sort of claims on behalf of the paper companies which were to take on greater constitutional meaning in the 20th century: that the health regulation interfered with interstate commerce and violated due process of law. Brandeis' later well known opposition to business monopolies is also a subtext here.

Brandeis' partner Samuel Warren was the co-author with Brandeis of the 1890 Harvard Law Review article, "The Right of Privacy," which many maintain is the single most influential law review article ever written.

Thursday, October 8, 2009

First Department Refers Attorney's Conduct to Disciplinary Committee

In a highly unusual development, at the conclusion of its opinion affirming a judgment entered in the Supreme Court, New York County, a unanimous Appellate Division, First Department, today referred to its Disciplinary Committee the conduct of one of the attorneys involved in the litigation.

The case, Osowski v. AMEC Construction Management, Inc., involves a serious injury suffered by a workman during the construction of the New York Times Building in Manhattan. The appeal addressed the liability insurance policy for the construction site and a third-party action for indemnification and contribution brought by the defendants.

During the course of the litigation the injured plaintiff entered into a confidential settlement agreement with the defendants who are the plaintiffs in the third-party action. The defendant in the third-party action sought disclosure of the confidential agreement; the trial court ordered the disclosure, and the Appellate Division agreed that disclosure was required in order for the third-party defendant to defend itself.

The Appellate Division concluded that attempts by an attorney to resist disclosure of the agreement "cannot be viewed as anything but a clear attempt to perpetuate a fraud on the [trial] court....Moreover, counsel...appears to have acted in disregard of well-established discovery rules and demonstrated a lack of forthrightness and candor to the court by failing to come forward with the terms of the settlement agreement which directly concerned [the defendant's] defense in the third-party action. We believe that counsel's continued prosecution of the third-party action against [the third-party defendant] after [the defendants in the principal action] entered into the settlement agreements raises substantial questions under the Code of Professional Responsibility." The decision can be found here.

Tuesday, October 6, 2009

Coming Up In the U.S. Supreme Court

The United States Supreme Court will hear oral arguments in three cases tomorrow, including an Establishment Clause case which has attracted 30 amicus briefs.

Over 70 years ago the Veterans of Foreign Wars (VFW) placed a cross as a memorial to fallen World War I service members in what is now the Mojave National Preserve in southern California. After a United States District Court ruled that the presence of the cross on federal land violates the Establishment Clause of the First Amendment, Congress passed a law directing the Secretary of the Interior to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value. The District Court enjoined the implementation of the law, and the United States Court of Appeals for the Ninth Circuit affirmed.

In Salazar v. Buono the Court will consider whether the individual who brought suit (a National Park Service employee) has standing to challenge the land transfer law, and if so, whether the transfer of public land to a private party is a constitutionally effective way for government to avoid a violation of the Establishment Clause.

In Reed Elsevier, Inc. v. Muchnick the Court will address the power of United States District Courts to approve settlements of copyright infringement suits, and in Union Pacific Railroad v. Brotherhood of Locomotive Engineers the Court will consider whether the National Railroad Adjustment Board's retroactive adoption of a "new rule" to deny an employee grievance violated due process of law.

Monday, October 5, 2009

The U.S. Supreme Court Tomorrow

On the second day of its new Term the United States Supreme Court will hear oral arguments in three cases tomorrow.

Section 48 of Title 18 of the United States Code prohibits the creation, sale, or possession of a depiction of a live animal being intentionally maimed, mutilated, tortured, wounded, or killed, when the depiction lacks serious religious, political, scientific, educational, journalistic, historical, or artistic value. The question before the Court in U.S. v. Stevens is whether the statute is, under the First Amendment Free Speech Clause, invalid on its face. The case is one of the Term's major free speech cases and has attracted 21 amicus briefs.

The Court will also hear two criminal cases tomorrow. In Johnson v. United States, the Court will interpret the meaning of "violent offender" under the federal Armed Career Criminal Act. In Bloate v. United States, the Court will address the requirement of the federal Speedy Trial Act, 18 U.S.C. § 3161, that a defendant be placed on trial within 70 days of his indictment. The question is whether the time consumed by the preparation of pretrial motions is excluded when calculating the 70 day period.

Saturday, October 3, 2009

U.S. Supreme Court Begins New Term

The United States Supreme Court begins its new Term on Monday, October 5. Adding to the interest a new Term of the Court usually brings is Justice Sonia Sotomayor's appearance on the bench.

During the month of October the Court will hear oral argument in 13 cases. The first oral argument of the Term is a case of original jurisdiction, South Carolina v. North Carolina, in which the two states are seeking an equitable apportionment of an interstate river. The second case to be argued on Monday, Maryland v. Shatzer, relates to police interrogation under MIranda v. Arizona, and has attracted amicus briefs from 37 states.

The third case of day, Mohawk Industries, Inc. v. Carpenter, raises the question of whether there can be an immediate appeal of an order of a United States District Court finding a waiver of the attorney-client privilege and directing the production of privileged documents.

Thursday, October 1, 2009

First Department: When Is a Child "Emancipated"

Pursuant to Family Court Act § 413(1)(a) a parent has the duty to support his child until the child reaches the the age of 21. This duty, however, will terminate if the child is "emancipated" before he reaches the age of 21. Matter of Roe v. Doe, 29 N.Y.2d 188 (1971).

An Appellate Division, First Department, ruling today, Matter of Thomas B. v. Lydia D., contains a valuable discussion of when a child under the age of 21 is emancipated because he is fully self-supporting and economically independent of his parents. The decision can be found here.

Tuesday, September 29, 2009

Why Is the U.S. Supreme Court Deciding Fewer Cases?

One of the most discussed appellate developments of the past two decades is the fact that the United States Supreme Court is granting far fewer certiorari petitions than it did in the 1980s. Many explanations have been offered over the years.

Now Adam Liptak, who covers legal affairs for The New York Times, reports on the explanations presented at a conference which explored the issue at Yale Law School. His article can be found here.

Second Circuit Interprets CPLR § 205(a) Dismissals Which Toll the Statute of Limitations

Pursuant to CPLR § 205(a) if an action is dismissed for technical reasons unrelated to the merits of the claim, the statute of limitations is tolled so that the plaintiff can file the action again within six months.

The statute of limitations is not tolled, however, if the action is terminated because of a voluntary discontinuance, a failure to obtain jurisdiction over the defendant, a dismissal of the complaint "for neglect to prosecute the action," or a final judgment on the merits.

In Doyle v. American Home Products Corp., a plaintiff, after suffering a dismissal in 2006 of his action in Supreme Court, Kings County, then filed a diversity action making the same claims in the United States District Court for the Eastern District of New York. The District Court dismissed the federal action on the grounds that the statute of limitations was not tolled under § 205(a).

The United States Court of Appeals for the Second Circuit affirmed today, concluding that while the state judge had not explicitly stated the action was dismissed for neglect to prosecute, the record as a whole showed that the plaintiff had not "diligently" prosecuted his action and, therefore, he was not entitled to the tolling provisions under § 205(a). The Second Circuit opinion collects the New York case law regarding § 205(a) and is a very useful discussion of the tolling provisions. The opinion can be found here.

It should be noted that on July 7, 2008, § 205(a) was amended so that today a state judge who dismisses an action for neglect to prosecute, "shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation."

Friday, September 25, 2009

Skelos v. Paterson: Judge Read's Vote

Many judges and lawyers have expressed surprise that in Skelos v. Paterson the New York Court of Appeals rejected the unanimous conclusions of the Appellate Division, Second Department, and the trial court, to conclude that Governor Paterson has the authority to appoint a Lieutenant Governor.

The biggest surprise to many in the legal community is that Judge Read, a Republican appointee to the Court, voted with the three Democratic appointees to uphold Democratic Governor Paterson's position.

The explanation favored by most observers is the one I advanced here on Tuesday: that Judge Read, a former Deputy Counsel to Governor Pataki, was more willing than her Republican colleagues on the Court to uphold the assertion (and what the dissenters considered enlargement) of executive authority by a governor.

Dram Shop Act: Motorist Who Injures Intoxicated Pedestrian Can Seek Contribution from Bar

If a motorist is being sued because his car hit a careless and intoxicated pedestrian, can the motorist seek contribution from the bar which sold the pedestrian too much alcohol in violation of New York's Dram Shop Act?

In a matter of first impression the Appellate Division, Second Department, has ruled in O'Gara v. Alacci that the motorist can seek contribution from the bar based on the claim that the pedestrian left the bar in an alcohol-induced stupor and then tried to cross a highway when she was struck by a car. The decision can be found here.

Under New York's Dram Shop Act, General Obligations Law § 11-101[1], a bar owes a duty to the public not to sell alcohol to a person who is visibly intoxicated. The court reasoned that the motorist is a member of the public the Act is designed to protect, and, therefore, if the bar breached its duty when it sold alcohol to the pedestrian, the motorist can seek contribution from the bar.

Tuesday, September 22, 2009

N.Y. Court of Appeals Upholds Governor's Power to Appoint Lieutenant-Governor

In a decision whose words appear to be politically neutral, the New York Court of Appeals by a 4-3 vote today reversed a unanimous Appellate Division, Second Department, and ruled that Governor Paterson has the power to appoint a Lieutenant-Governor when that position becomes vacant. The ruling, Skelos v. Paterson, can be found here.

But the neutral words of the opinion do not conceal the political undertones of the ruling. The three members of the Court of Appeals appointed by Democratic Governor Paterson--Chief Judge Lippman (the author of the majority opinion), and Judges Ciparick and Jones--all voted to uphold the Governor's power to make the appointment. Three judges appointed by Republican Governor Pataki--Judges Pigott, Graffeo and Smith--all dissented and voted to uphold the challenge to the appointment made by a Republican member of the State Senate.

The swing vote was Judge Read who was appointed by Governor Pataki. New York political consultant Jerry Skurnick ( pointed out to me that prior to her appointment to the Court, Judge Read was Deputy Counsel to Governor Pataki. This experience may make her more willing than her Republican colleagues on the Court to uphold the assertion of executive authority by a governor.

I had thought the case, which was orally argued on September 11, was a toss-up, and the 4-3 vote suggests I was correct. I did not, however, anticipate that the Court would so clearly divide along political party lines.

Tuesday, September 15, 2009

Employment Discrimination: Physical Disability

The Appellate Division, First Department, issued an important decision today interpreting the provisions of New York State and New York City laws which make it unlawful for an employer to discriminate against an employee because of the employee's physical disability. The case, Vig v. New York Hairspray Co., involves an actor who was injured while performing in the musical Hairspray. The decision can be found here.

The decision notes New York's liberal pleading standards in employment discrimination cases.

New York Court of Appeals This Week

Beginning today, and continuing tomorrow and Thursday, the New York Court of Appeals will hear oral argument in 12 cases. There are six civil cases, and six criminal cases. Three cases are of particular interest.

Arbitration. CPLR § 7509 requires that a party must move before arbitrators within 20 days of an arbitration award to "modify" the award. CPLR § 7511 requires that a party must move before a court within 90 days of an arbitration award to "vacate" or "modify" the award. In Matter of Joan Hansen & Co. v. Everlast World's Boxing Headquarters Corp., Hansen moved before the arbitrators two years after the award to "clarify" whether Everlast was required to make certain payments under the award.

The Appellate Division, First Department, held that the time limitations established by sections 7509 and 7511 do not apply because Hansen was seeking a "clarification" of the arbitration award and not a "modification" of the award. The Court of Appeals must determine whether the CPLR time limitations apply to "clarifications" of arbitration awards.

Criminal Appeals. A criminal defendant who claims his appellate counsel was constitutionally ineffective does so by filing a motion for a writ of error coram nobis in the Appellate Division. If his motion is denied, he can then seek leave to appeal to the Court of Appeals. An order of the Appellate Division denying a motion for reargument is not appealable to the Court of Appeals.

In People v. D'Alessandro the defendant filed a motion for a writ of error coram nobis in 1999 which was denied by the Appellate Division, First Department. Nine years later in 2008 he filed a second motion for a writ of error coram nobis. The Appellate Division treated the motion as one "for reargument" and denied the motion.

The Court of Appeals must decide whether the Appellate Division correctly labeled the second motion as one for reargument--which would deprive the Court of Appeals of jurisdiction over the case. The Court must also decide whether there is any statutory bar under the Criminal Procedure Law to successive coram nobis motions.

Expert Testimony: Eyewitness Identification. In the seminal case People v. LeGrand, 8 N.Y.3d 449 (2007), the Court of Appeals held that "where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications."

The Court will address the LeGrand rule in two cases. In People v. Abney the Court will review a 3-2 decision of the Appellate Division, First Department, that the trial judge did not abuse his discretion when he denied the motion to admit the expert testimony. In People v. Allen the Court will review a decision of the Appellate Division, Second Department, that the trial judge did not abuse his discretion when he denied the motion to admit the expert testimony.

Friday, September 11, 2009

N.Y. Court of Appeals: Senate v. Governor

This morning the New York Court of Appeals heard oral argument in Skelos v. Paterson, in which State Senator Dean G. Skelos has challenged Governor Paterson's authority to appoint Richard Ravitch to be lieutenant governor, a position left vacant when Paterson became governor after Elliot Spitzer resigned.

The Appellate Division, Second Department, unanimously ruled the appointment invalid, concluding that under the State Constitution the position can be filled only by an election. The Appellate Division decided the case on August 20, and sua sponte granted leave to appeal to the Court of Appeals.

Today's New York Times has an excellent article on the intersection of law and politics found in the case. My views on the case can be found in the Times article which is available here.

Thursday, September 10, 2009

Second Circuit: Employer Liable for Age Discrimination by Independent Contractor Who Does Its Hiring

The United States Court of Appeals for the Second Circuit ruled today that when a company uses an independent contractor to do its hiring, the company will be liable if the independent contractor engages in age discrimination. Halpert v. Manhattan Apartments, Inc.

The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C. § 623(a)(1).

Defendant Manhattan Apartments employed an independent contractor to interview applicants for the position of showing rental apartments to potential tenants. The plaintiff asserted that when the independent contractor interviewed him he was told he was "too old" for the position.

In reversing a grant of summary judgment to Manhattan Apartments and ordering a trial, the court stated: "If a company gives an individual authority to interview job applicants and make hiring decisions on the company's behalf, then the company may be held liable if that individual improperly discriminates against applicants on the basis of age." The decision can be found here.

Tuesday, September 8, 2009

Justice Sotomayor's First Oral Argument Tomorrow

Tomorrow at 10 a.m. the United States Supreme Court will hear oral argument in Citizens United v. Federal Election Commission. The case was originally scheduled for oral argument last spring, but was put over by the Court for an unusual September argument to allow for further briefing by the parties.

The case has attracted broad interest. It will be the first oral argument before the Court in which Justice Sonia Sotomayor will participate and there is a natural curiosity regarding how active a questioner she will be. During her confirmation hearings, there were rumblings from some Senators that when she sat on the United States Court of Appeals for the Second Circuit there were reports that she was, at times, curt and discourteous towards counsel.

The case also has attracted considerable interest because the Court will address the question of the limits on corporate financial contributions to candidates.

Thursday, September 3, 2009

Is Justice Stevens Planning to Retire?

An Associated Press story that United States Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual has set off waves of speculation that the Justice plans to retire when the Court completes its 2009 Term in June 2010. The AP story can be found here.

Justice Stevens would normally hire four law clerks for the Term of the Court which will begin in October 2010. He has hired only one. Retired Supreme Court Justices are entitled to hire one law clerk.

Friday, August 28, 2009

Law Journal Supplement on Appeals

The August 31 edition of the New York Law Journal will contain a special supplement reviewing New York appellate court rulings over the past year, and addressing matters of appellate practice.

My contribution is an article on raising on appeal matters which were not preserved for appellate review in the trial court. While preservation of error is generally an essential ingredient of a successful civil or criminal appeal, the article discusses situations in which appeals courts will consider matters which have not been preserved for appellate review.

Attorney Fees: Judges Immune from Suit for Decision Regarding Amount of Compensation to be Awarded to Appointed Counsel

Pursuant to New York County Law art. 18-b, §§ 722 and 722-a to 722-f, a municipality is required to compensate court-appointed counsel for providing representation to indigents in criminal cases and Family Court matters. The amount of compensation in each case is determined by the trial judge, subject to review by a supervising administrative judge for an abuse of discretion.

In Bliven v. Hunt the United States Court of Appeals for the Second Circuit ruled today that Family Court judges are immune from federal suit for the decisions they make regarding the compensation an appointed attorney is to receive for a particular case. The Court concluded that the determination of what is a reasonable fee in a particular case is not, for purposes of immunity, an administrative act. It is part of the judicial function to which immunity attaches. See decision here.

Thursday, August 27, 2009

Back from Vacation: Legal Travels

Wherever my wife Jacqueline and I travel we make it a point to set aside time to see courthouses or other sites of legal interest in the region we are visiting. We just spent 12 days in Virginia, a state with a rich legal heritage.

Standing amid the skyscrapers in downtown Richmond is the John Marshall House, home of the Chief Justice from 1790 until his death in 1835. The house and its original furnishings are very well maintained. While I, of course, associate Marshall with Marbury v. Madison and "judicial review," the visit to the house brought out his domestic side: he owned slaves, he and his wife had 10 children, and his favorite drink was Port.

A few blocks away is the Virginia State Capitol, designed by Thomas Jefferson. In one of its chambers, Marshall presided over the 1807 treason trial of Aaron Burr, former Vice-President of the United States. Marshall's interpretation of the treason provision of Article III, Section 3, of the Constitution is of enormous importance. Burr was acquitted.

Directly across the street from the Capitol is the Lewis F. Powell, Jr. United States Courthouse, home of the United States Court of Appeals for the Fourth Circuit. The courthouse has stood at its present location since 1858. In this building in 1866 a grand jury indicted Jefferson Davis, president of the Confederacy, for treason. On another side of the Capitol is an imposing granite building which looks like a bank. It turned out to be the Supreme Court of Virginia. We learned that the building once housed the Federal Reserve, which explains its stolid appearance.

An hour's drive from Richmond is Colonial Williamsburg. This was the capital of Virginia until 1780 when the capital was moved to Richmond out of the fear that Williamsburg was too vulnerable to British attack. In one wing of the the beautifully restored Capitol building is the chamber where the colony's highest court sat. A short distance away is the 18th century courthouse. Actual trials reenacted in the courthouse make three points: slaves who were witnesses to an event could not testify against a white person; persons with an interest in the case, such as the plaintiff and the defendant, could not testify in their own behalf; and freedom of religion in the colony did not include the right to be a practicing Catholic.

Also in Williamsburg is the College of William and Mary. Founded in 1693, it is the second oldest college in the United States, and the law school at the College is said to be the oldest in the country. The first professor of law in the United States, George Wythe, was appointed at the College in 1779. Wythe was a signer of the Declaration of Independence.

Finally, after crossing Chesapeake Bay to Virginia's eastern shore, we stopped for lunch in Eastville (population 203) where we discovered an 18th century village green surrounded by the courthouse, debtor's prison, a row of houses still used as attorneys' offices, and the local inn. It turns out that Eastville has been the County Seat of Northampton County since 1680, and it claims to have the oldest continuous county court records in the United States. In August 1776, the Declaration of Independence was read from the courthouse steps.

Tuesday, August 11, 2009

Arguing Another Attorney's Appeal

Last week I discussed a case in the United States Court of Appeals for the Second Circuit in which I appeared at oral argument for the appellees although I did not write their brief and did not know anything about the case until I was asked to appear for the argument.

Attorney David M. Gottlieb sent a thoughtful comment in which he wonders whether there is a trend towards attorneys appearing only for the oral argument, and he asks why do attorneys who write the brief request that another attorney orally argue the case.

I do not know whether the appearance of attorneys only for oral argument occurs more often today than five or ten years ago. I intend to conduct an informal survey.

As for why lawyers ask other lawyers to argue the case: several years ago an attorney told me that while he loved to do research and to write appellate briefs, he became too nervous at oral argument so he asked other lawyers to argue his cases. This probably applies to other attorneys as well.

It also happens that the lawyer who appeared at the trial also writes the appellate brief, and something he did (or did not do) at the trial becomes an important matter on appeal. It may be awkward for the lawyer to appear at oral argument and defend his own action (or inaction). He may be concerned that his argument will smack too much of self-justification, and detract from the client's cause. He, therefore, has another attorney argue the case.

But whatever the reason, what emerges is the importance attorneys attach to oral argument. I disagree with lawyers who forego legal argument. Oral argument is the only time in the appellate process when an attorney can answer the questions which are on a judge's mind. After reading the briefs and pertinent parts of the record, appellate judges obviously go on the bench inclined to decide the case a particular way. Different appellate judges have told me that oral argument changes their mind from 5% to 15% of the time. That is not an opportunity any attorney should pass up.

Wednesday, August 5, 2009

My Argument in the Second Circuit

Yesterday I appeared at oral argument in the United States Court of Appeals for the Second Circuit on behalf of three law firms which are appellees in an appeal which seeks to have the firms pay the legal fees of an adverse party. The three firms brought me into the case solely for the oral argument.

The three firms--two from Florida and one from New York--represent a car dealer who sued General Motors and the General Motors Acceptance Corporation in the United States District Court for the Eastern District of New York. The suit alleged fraud, breach of fiduciary duty, and related claims. The District Judge granted GMAC's motion for summary judgment, and the Second Circuit later reversed a $2.3 million jury verdict against GM.

GMAC then moved pursuant to 28 U.S.C. § 1927 to sanction the law firms for bringing a frivolous suit by imposing on the firms GMAC's legal bills which exceed $600,000. The touchstone of § 1927 is bad faith litigation. The District Judge denied the motion for sanctions and GMAC appealed to the Second Circuit.

What made the case interesting for me is that I did not write the appellees' brief and I did not know anything about the case until the three firms asked me to appear for oral argument. The briefs and joint appendix are about 1800 pages long. While I have argued many appeals, it was an unusual experience for me to take on an appeal just for the oral argument: the appellees' brief was excellent, but I had to shape the oral argument along lines I would be comfortable presenting to the court. The firms say they are pleased with the result. Now let's see what the judges say!

Thursday, July 30, 2009

My N.Y. Court of Appeals Filing

Yesterday I filed the appellant's reply brief in the New York Court of Appeals in Matter of the Estate of Lena Hausman. The case raises the question of whether the de facto corporation doctrine should be applied to a limited liability company (LLC).

Under the de facto doctrine the business transactions of a corporation will be deemed valid although the corporate organizers have not completed all the statutory steps required to be de jure. In a typical case, the corporate organizers will prepare the certificate of incorporation and then engage in corporate business before they actually file the certificate with the Secretary of State. In other instances, organizers file the certificate with the Secretary of State, engage in corporate business, and then learn that either the certificate or the filing itself is defective. The Court of Appeals has recognized the de facto doctrine for at least 150 years. The Court last looked at the doctrine in 1958.

In Hausman a LLC was named the grantee in a deed which was signed by the grantor after the organizers executed the LLC Articles of Organization and the LLC Operating Agreement, but 14 days before the Articles of Organization were filed with the Secretary of State. The question before the Court is whether the LLC could take title as a de facto LLC, or whether the real property is still part of the grantor's estate.

I did not appear in the lower courts. The losing party in the Appellate Division brought me in to make the motion for leave to appeal to the Court of Appeals. The motion was granted in January. Oral argument will be on October 20.

Monday, July 27, 2009

Judge Sotomayor: Senate Committee Scheduled to Vote Tomorrow

The United States Senate Judiciary Committee is scheduled to vote tomorrow morning on whether to confirm Judge Sonia Sotomayor to be an Associate Justice of the United States Supreme Court. At the request of the minority Republicans on the Committee, the vote was postposed for one week.

If the majority of the Committee, as expected, votes in favor of President Obama's nomination, it is anticipated that a vote of the full Senate will occur prior to the Senate recess in August.

While the Supreme Court begins its new Term with oral arguments on October 5, on September 9 it will hear oral arguments on an election finance case which was set down for reargument from last Term. If Judge Sotomayor's nomination is approved by the Senate in August, she presumably will be on the bench for the September 9 argument.

Tuesday, July 21, 2009

Judge Sotomayor: Senate Committee Vote Postponed One Week

The Senate Judiciary Committee was scheduled to vote this morning on the nomination of Judge Sonia Sotomayor to be an Associate Justice of the United States Supreme Court. The vote has been postponed one week to July 28.

Keeping Up with the CPLR

If you litigate in the New York state courts a good understanding of the CPLR is, of course, essential. Each week there is a host of appellate and trial court opinions interpreting the CPLR. Keeping abreast of developments is difficult and very time consuming.

One way to keep current, and to get a valuable and free research tool, is to read, an almost daily roundup of cases addressing the CPLR. It is published by attorney David M. Gottlieb, and can be found here.

Of particular value is the blog's research capabilities: you can find cases reported on the blog either by CPLR section number, or by topic. Take a look. I think you will find it very useful.

Wednesday, July 15, 2009

Second Circuit: Claim Barred by Statute of Limitations in State Court Can be Brought in Federal Court

If an action is dismissed by the New York State courts on the grounds the action is barred by the statute of limitations, can the identical claim then be brought in federal court where the statute of limitations is longer?

In Cloverleaf Realty of New York, Inc. v. Town of Wawayanda the United States Court of Appeals for the Second Circuit today answers that question "Yes." The decision can be found here.

Following a public hearing, the town of Wawayanda, New York, imposed a special tax assessment on property owners. Property owner Cloverleaf brought a declaratory judgment action in state court arguing, inter alia, that the assessment violated procedural due process because the town had posted notice of the public hearing in a newspaper advertisement instead of providing actual notice by mail to property owners. The state court dismissed the action on the grounds it was commenced after the four-month statute of limitations under CPLR § 217.

Cloverleaf then brought an action in federal court under 42 U.S.C. § 1983 again alleging that the failure to give notice by mail violated due process of law. The District Court dismissed the action on the grounds the prior dismissal in the state court barred the action in federal court.

The Second Circuit reversed the dismissal and reinstated the claim. The statute of limitations for a § 1983 action in the New York federal courts is three years. The traditional rule is that a dismissal on statute-of-limitations grounds is not a determination on the merits--it bars the remedy but does not extinguish the right. Therefore, an action dismissed for untimeliness in one jurisdiction, can be brought in another jurisdiction with a longer statute of limitations.

The Second Circuit's examination of New York law leads it to conclude that New York follows the traditional rule. Because the state dismissal of Cloverleaf's claim was not a determination on the merits, the action can be brought in federal court where the statute of limitations is longer.

Cloverleaf Realty is important because there are many New York state claims which have a constitutional ingredient that are dismissed for untimeliness. The case raises the possibility that some of those claims can be brought anew in federal court.

Tuesday, July 14, 2009

Arbitration Award: First Department Reverses Itself and Adopts Second Department View

There is no en banc procedure in the four New York State Appellate Divisions as there is in the United States Courts of Appeals. As a result, when a panel of an Appellate Division issues a ruling it becomes Department precedent and will be followed by later panels until the New York Court of Appeals rules otherwise, or, if the ruling involves the interpretation of stature, the Legislature changes the law.

Today, however, in a major opinion interpreting when a court must confirm an arbitration award under CPLR § 7510, a panel of the the Appellate Division, First Department, rules that it will not follow First Department precedent, but will instead adopt a Second Department ruling to decide the case before the panel. Today's ruling, In re Bernstein Family Limited Partnership v. Sovereign Partners, L.P., can be found here.

In Organization of Staff Analysts v. City of New York, 277 A.D.2d 23 (2000), the First Department had ruled that the lower court correctly dismissed as moot a petition to confirm an arbitration award because the award had been completely satisfied. In Mtr. of Allstate Ins. Co. v. Dental Health Care, P.C., 24 A.D.3d 437 (2005), the Second Department reached the opposite conclusion, ruling that under CPLR § 7510 a party is entitled to confirmation of an arbitration award regardless of the fact that there has been compliance with the award.

In today's ruling the First Department panel concludes that the Second Department is correct, and it declines to follow its own precedent in Organization of Staff Analysts.

Today's ruling offers three reasons for rejecting First Department precedent. First, the panel states that the reliance in Organization of Staff Analysts on a particular section of the CPLR was "misplaced." Second, the panel acknowledges that the Second Department's reading of CPLR § 7510 better conforms to the plain words of the statute than Organization of Staff Analysts. But it is the third reason is that startling.

Today's decision states that the parties in Organization of Staff Analysts "did not alert this Court" to the fact that the Court of Appeals affirmed a Fourth Department ruling which had reached the opposite conclusion from Organization of Staff Analysts. The Court of Appeals ruling, however, came in 1983, or 17 years prior to Organization of Staff Analysts.

The acknowledgement that the First Department was unaware of a Court of Appeals ruling is, of course, disturbing. Plainly the attorneys can be faulted because they did not "alert" the First Department that the Court of Appeals had affirmed the Fourth Department ruling 17 years before. But today's decision is an implicit acknowledgment that the First Department itself had not shepardized the Fourth Department decision when it decided Organization of Staff Analysts in 2000.

The message here is clear: busy appellate courts do rely on the work of appellate counsel, and however careful a court is, something important can slip past it if not brought to its attention by appellate counsel.

Finally, today's ruling is a good example of when an Appellate Division panel should decline to follow Department precedent. Court of Appeals authority belatedly has been brought to its attention, and the decisions in other Departments correctly apply that authority. There is no point in waiting for the Court of Appeals to say First Department precedent is wrong.