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In June and early July the Court of Appeals finished its last session of oral arguments and handed down a number of important decisions before the traditional short summer recess. In addition, the Court granted a significant number of motions for leave to appeal in civil cases that will largely shape the Court’s calendar during the upcoming fall and winter months. During this same time period, the Court also granted leave in criminal cases, additional appeals were filed in the Court of Appeals as of right, and the Court accepted cases on certification from the U.S. Court of Appeals for the Second Circuit. Most-Recent Civil Cases This article, however, will focus solely on the most recent civil cases where the Court itself granted leave to appeal. Keeping abreast of these cases is beneficial to counsel for two reasons. First, the Court welcomes amici briefs on the appeals pending before the Court. Knowing well in advance what cases and legal issues will be addressed by the Court allows potential amici to plan and submit their briefs as early as possible. Second, knowing what issues the Court is going to address may assist a would-be movant for leave to appeal in successfully convincing the Court to grant leave in their case. The Court has been known to grant a leave application in a case where the legal issues are the same or related to issues already pending before the Court. An unusual example of that fact will be discussed below. In Matter of Red Hook/Gowanus Chamber of Commerce v. New York City Bd. of Stds. & Appeals , 1the Second Department dismissed an Article 78 proceeding to review respondent’s determination granting an application for a use variance for petitioner’s failure to timely join a necessary party, the landowner who obtained the use variance. Supreme Court granted petitioner’s cross-motion to file an amended petition adding the landowner as a necessary party, but the Appellate Division held that the cross-motion, which was made after the expiration of the statute of limitations, should have been denied as untimely. It noted that petitioner was well aware of the identity of the landowner when it commenced the proceeding. The court also found that petitioner’s contention that the 30-day limitations period provided in the New York City Administrative Code was unconstitutionally short was unpreserved for appellate review and, in any event, without merit. In Williams v. Nassau Co. Medical Center , 2the Second Department held that plaintiff was not entitled to serve what was in effect a late notice of claim in an action to recover damages for medical malpractice approximately 10 years after the alleged malpractice giving rise to the plaintiff’s injuries occurred. The court noted that although a claimant’s infancy will automatically toll the applicable one-year and 90-day statute of limitations under General Municipal Law �50-i, infancy alone does not compel the granting of a motion for leave to serve a late notice of claim and, in this case, the court found the 10-year delay in moving was not the product of plaintiff’s infancy. Plaintiff’s lack of awareness of the notice of claim requirement was not a reasonable excuse for the delay and defendants did not have actual notice of the claim within the 90-day period or a reasonable time thereafter; although they were in possession of the claimant’s medical records, they were not on notice of the specific claim being made. ‘Cla-Mil East Holding’ In Cla-Mil East Holding Corp. v. Medallion Funding Corp. , 3the First Department granted defendants’ summary judgment motions and dismissed the action. The plaintiff-landlord brought suit seeking recovery for abuse of process and trespass for damage to its premises that occurred when the defendant-secured creditor repossessed collateral from a judgment debtor-tenant pursuant to a court order obtained ex parte by the defendant-attorney. The controlling agreements for the loan between the tenant and the secured creditor included an agreement to assign the lease in the event of a default. The assignment agreement contained a waiver of notice for repossession of collateral, provided that the agreement was enforceable between the landlord and the tenant without restriction, and required that the assignment be attached to the lease. The landlord signed a consent to the assignment agreement, which the court found effectively bound the landlord to the waiver of notice. The court held that under these circumstances the defendant law firm did not engage in an abuse of process since plaintiff was not entitled to notice or a bond, the ex parte application did not affect its rights, and the use of process and repossession was not done with intent to harm or obtain an improper collateral objective. Since there was no wrongful or improper exercise of authority, fraud, collusion or malicious or tortious act by the law firm, there was no liability to the plaintiff, a non-client. The trespass claim was dismissed because entry onto the premises and repossession were duly ordered by the court on the ex parte application. Moreover, the court found that neither the landlord nor the law firm could be held liable for any damage caused by the marshal who executed the repossession. The court distinguished Kleman v. Rheingold, 4because it involved an attorney’s nondelegable duty to exercise care in representing clients, which did not give rise to a cause of action by a non-client such as the plaintiff. ‘Jamie R. v. Consilvio’ In Re Jamie R. v. Consilvio 5involves an insanity acquitee’s right to rehearing and review, by a jury or the court, of a recommitment order under Mental Hygiene Law � 9.35 and CPL 330.20. In October 2003, the Supreme Court found that petitioner suffered from a dangerous mental disorder and issued a recommitment order for six months in a secure facility. Petitioner did not appeal the order, but thereafter moved in Supreme Court for a rehearing and review by a jury of the recommitment order. The jury unanimously found that petitioner was mentally ill and required continued retention in a nonsecure facility, but found that petitioner did not suffer from a dangerous mental disorder that required retention in a secure facility. Supreme Court treated the jury’s finding that petitioner did not suffer from a dangerous mental disorder as advisory only, and made his own determination consistent with the jury verdict. Ultimately, a resettled order was entered which purported to deny respondent’s application, in effect overturning the October 2003 recommitment order. The First Department held that the court was not authorized to review the determination as to dangerous mental disorder, finding that an insanity acquitee has a right to de novo review and a jury trial only on the issues of mental illness and retention, but not on dangerous mental disorder. The court did not stop there, however, but also held that Mental Hygiene Law �9.35 does not provide for a retrial on the question of dangerous mental disorder even by the court. The court noted that in so ruling they disagreed with decisions from the other appellate divisions that an insanity acquitee is entitled to a retrial by the court on the issue of dangerous mental disorder. 6 In Matter of Niagara Mohawk Power Corp. v. Town of Bethlehem , 7the Third Department held that a taxpayer could not contest the issue of whether its property was benefitted by, and thus subject to, taxation by a water district as part of its challenge to the annual assessment roll created by the Town in lieu of the requirements and statute of limitations contained in Town Law �195(2). That statute expressly provides that a town’s final determination establishing or extending a water district must be challenged within 30 days of its filing and accompanied by an undertaking to cover the town’s expenses if the challenge is unsuccessful. It was undisputed that petitioner did not satisfy these requirements. The court noted that although RPTL �502 requires information pertaining to special ad valorem levies to be included in the assessment roll for each parcel of real property, the statute does not contemplate an annual reconsideration by the assessor whether each parcel is benefitted by the water district, a determination specifically left to the town board under Town Law �194(1). The court also held that the 30-day statute of limitations did not violate due process and equal protection since petitioner had the opportunity to challenge the annual assessment of its property and the Town Law established a process for timely challenging the validity of the ad valorem tax when the water district was created and subsequently expanded. The fact that petitioner acquired its property after the water district lines were established and the 30-day period had run was not significant, according to the court, because petitioner took title subject to the property status as part of the water district. 8 ‘Poughkeepsie Firefighters’ Matter of Poughkeepsie Professional Firefighters’ Ass’n. v. New York State Pub. Empl. Relations Bd. , 9involves General Municipal Law �207-a and �207-c, which authorize municipalities to make initial determinations whether an injured firefighter or police officer is entitled to benefits. During contract negotiations, the union proposed a procedure for collective bargaining that any firefighter dissatisfied with a municipality’s determination of benefits could submit the claim to binding arbitration and the arbitrator would decide the nature of the claim and the burden of proof and would take evidence and make a determination as to benefits. Under existing law the initial determination by a municipality is not mandatorily negotiable, but procedures for reviewing the initial determination are a proper subject for mandatory bargaining. The city challenged the demand as improper and the Public Employment Relations Board (PERB) held that, unlike Matter of City of Watertown v. New York State Pub. Empl. Relations Bd., 10this demand by petitioners was not a proper subject for mandatory bargaining. The Appellate Division agreed with PERB, and held that the procedure demanded did not merely seek a review of the municipality’s initial determination, but instead sought to obtain a redetermination which, in effect, made the municipality’s right to make the initial determination illusory. The Court of Appeals took the unusual step of granting leave to appeal from an Order of the Appellate Division dismissing an appeal as moot in Harris v. Niagara Falls Bd. of Ed. , 13the Fourth Department dismissed a personal injury action for lack of subject-matter jurisdiction based on noncompliance with the commencement-by-filing system. Plaintiff’s counsel brought two separate applications for leave to serve late notices of claim under the same index number and both applications were granted. Plaintiff’s counsel then filed and served the summons and complaint under the same index number used for the applications. The Fourth Department held that a second, separate index number was required and since it was never purchased Supreme Court lacked subject matter jurisdiction. It noted that because the application for leave to serve a late notice of claim was resolved by the granting of that relief, plaintiff was required to purchase a new index number upon the commencement of the new action. The defective filing could have been waived, but in this case the filing fee was not paid and thus the action was not properly commenced. The Court of Appeals granted leave on the same day in two cases where different panels of the Appellate Division, First Department came to contrary conclusions regarding the standing of separate plaintiffs. In Concerned Cooper Gramercy Tenants’ Ass’n. v. New York City Educational Constr. Fund , 14the court held that plaintiffs had standing as third-party beneficiaries of the subject ground lease to challenge the proposed withdrawal of the leased premises from the Mitchell-Lama program. Three months later in Mendel v. Henry Phipps Plaza West, Inc. 15the court held that because plaintiffs were not parties to a Land Disposition Agreement and it contained a provision expressly negating any intent to permit its enforcement by third parties, they lacked standing to prosecute their claims seeking relief under the Agreement regarding the duration of the Mitchell-Lama program. Two Cases Granted Leave The last two cases in which the Court of Appeals granted leave need little discussion as they have already been addressed in a prior article. 16In Zumpano v. Quinn , 17the Fourth Department affirmed the dismissal of plaintiff’s clergy sex abuse claims because they were time-barred and held that the doctrine of equitable estoppel was not applicable to toll the statute of limitations. Plaintiff argued that he was abused from 1963, when he was 13 years old, until approximately 1970. In opposition to the motion for dismissal plaintiff asserted that he was insane pursuant to CPLR 208 and unable to function in society and that since defendants caused his disability they should not benefit from the statute of limitations. On May 5, 2005, the Court of Appeals denied leave to plaintiff. Five weeks later, however, the Court of Appeals granted leave to appeal in Boyle v. Smith . 18In Boyle, the Second Department similarly held that defendants were not equitably estopped from pleading the statute of limitations as a defense and rejected plaintiffs’ argument that defendant’s fraud, misrepresentation, or deception induced plaintiffs to refrain from filing a timely action for clergy sex abuse. After the Court granted leave in Boyle, the clerk’s office sent a letter to plaintiff’s counsel in Zumpanoadvising him of their leave grant in Boyleand referencing the Court’s rule regarding motions for reargument. Plaintiff’s counsel in Zumpanothen moved for reargument, and the Court granted both reargument and leave to appeal. This is a classic example, albeit under unusual circumstances, that knowing that an issue is either before the Court in an appeal or is presented in a pending motion for leave to appeal may greatly assist movant’s counsel in obtaining leave to appeal in the Court of Appeals. Alan J. Pierce is a partner at Hancock & Estabrook LLP in Syracuse, N.Y., who concentrates in appellate practice, insurance coverage disputes and commercial litigation. He served as Confidential Law Clerk to Richard D. Simons, Associate Judge of the Court of Appeals, from 1984-1986. Endnotes: 1. 2005 N.Y. Slip Op. 03860 (2d Dept. 2005), lv. granted NY3d (July 8, 2005). 2. 13 AD3d 363 (2d Dept. 2004), lv. granted N.Y.2d (June 30, 2005). 3. 2005 N.Y. Slip Op. 1823 (1st Dept. 2005), lv. granted NY3d (June 29, 2005). 4. 81 NY2d 270 (1993). 5. 790 NYS2d 94 (1st Dept. 2005), lv. granted __ N.Y.3d ___ (June 16, 2005). 6. The Appellate Division added that if the court’s determination that petitioner did not suffer from an dangerous mental disorder were properly before them, they would reach a contrary conclusion. If the Court of Appeals reaches this issue, it will apparently not have to remand the case to the Appellate Division for its review and determination of this factual issue and the Court will be able to exercise its limited factual review to determine which finding, that of Supreme Court or the Appellate Division, more nearly comports with the evidence. See, e.g., Matter of Y.K., 87 N.Y.2d 430, 432 (1996). 7. 2005 WL 609171 (3d Dept. 2005), lv. granted __ N.Y.3d ___ (June 14, 2005). 8. See also Matter of Niagara Mohawk Power Corp. v. Town of Watertown, 12 A.D.3d 1188 (4th Dept. 2004), lv. granted __ N.Y.3d ___ (March 31, 2005) (petitioner’s challenge to Town’s determination that its properties benefitted from sewer districts was not made within 30 days as required by Town Law � 195[2] dismissed as time barred). 9. 2004 WL 3222887 (3d Dept. 2005), lv. granted __ N.Y.3d ___ (June 14, 2005). 10. 95 NY2d 73 (2000). 11. 15 AD3d 285 (1st Dept. 2005), lv. granted __ N.Y.3d ___ (June 14, 2005). 12. 50 NY2d 707 (1980). The Court held that the appeal was moot due to a change in circumstances and that the case did not present substantial and novel issues not previously passed upon such that the case should be retained and decided as an exception to the mootness doctrine. 13. 2005 WL 629874 (4th Dept. 2005), lv. granted __ N.Y.3d ___ (June 9, 2005). 14. 13 A.D.3d 61 (2004), lv. granted ___ N.Y.3d ___ (June 14, 2005). 15. 789 N.Y.S.2d 885 (1st Dept. 2005), lv. granted ___ N.Y.3d ___ (June 14, 2005). 16. “Clergy-Sex Abuse Cases Make Their Way on to Court Docket Next Term,” New York Law Journal, July 15, 2005. 17. 12 AD3d 1096 (4th Dept. 2004), lv. denied ___ N.Y.3d ___ (May 5, 2005), reargument granted and lv. granted, ___ N.Y.3d ___ (July 6, 2005). 18. 15 AD3d 338 (2d Dept. 2005), lv. granted, ___ N.Y.3d ___ (June 16, 2005).

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