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.

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.