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."

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.

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 (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.

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.

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.

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.

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.

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.

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.

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.

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.

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!