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.