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.
Tuesday, September 29, 2009
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.
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
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.
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, 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
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 (www.primeny.com) 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
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.
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
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
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
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.