The First Department of the Appellate Division, which currently is comprised of 19 judges 1 but hears individual appeals by five-judge panels, 2 has been grappling with a recurring legal issue. The issue, which has been highly contentious, is whether in a negligence action a court may grant a plaintiff summary judgment on liability in a factual scenario establishing the defendant’s negligence but also raising issues of fact as to the plaintiff’s comparative fault.

For many years, the First Department consistently held that such a scenario precluded the granting of summary judgment on liability. 3 But in early 2011, in Gonzalez v. ARC Interior Constr. , 4 the court took a different position, albeit without explicitly overruling its prior precedent. Gonzalez held that because comparative negligence is not a complete bar to recovery in a negligence action, the plaintiff was entitled to summary judgment as to the defendant’s negligence even though there were issues of fact as to the plaintiff’s own culpable conduct. Subsequently, a different panel of the same court took a similar position in Tselebis v. Ryder Truck Rental, Inc. 5

A year later, in 2012, a different panel of judges reverted back to the court’s prior position, when in Calcano v. Rodriguez , 6 it held that where the record raises triable issues of fact of comparative negligence, the plaintiff is not entitled to summary judgment on liability. The court explicitly refused to follow the then most recent pronouncement on the issue, Tselebis v. Ryder Truck Rental, Inc. Subsequent First Department panels confronting the issue have consistently adhered to Calcano , 7 the latest, Maniscalco v. New York City Transit Authority . 8

Except, most recently, in Philip Capuano v Tishman Construction Corp. , 9 while agreeing with the majority’s granting of summary judgment to the plaintiff on liability on his Labor law §241(6) claim, and its implicit conclusion that Calcano did not apply to the facts of the case, 10 two concurring justices decried Calcano “was wrongly decided” and, instead, agreed with the majority panel in Tselebis.

This article is not intended to evaluate the merits of the diametrically opposed positions taken by different panels of judges of the First Department. 11 The issue will soon be conclusively resolved since in Maniscalco , the First Department recently granted the plaintiff’s motion for leave to appeal to the Court of Appeals. 12 Rather, the article analyzes a more fundamental issue implicated by the First Department’s “fragmented” approach to resolving the court’s divergent views on the procedural issue summarized above: Is the court’s willingness to disagree with its own recent precedent consistent with principles of stare decisis?

Fundamental Principle

Stare decisis, as a fundamental principle of jurisprudence restricting an appellate court’s decision-making process, dictates a respect for precedent and the consideration of precedent as a source of law. The Court of Appeals defines stare decisis as follows: “The doctrine of stare decisis provides that once a court has decided a legal issue, subsequent appeals presenting similar facts should be decided in conformity with earlier decisions. Its purpose is to promote efficiency and provide guidance and consistency in future cases by recognizing that legal questions once settled should not be reexamined every time they are presented.” 13

Where the court stands in the judicial hierarchy determines whether a precedent is binding upon it. Thus, a decision by the Court of Appeals on the point at issue must be followed by lower appellate courts, as well as the trial courts. 14 While the Appellate Division is a single statewide court, divided into departments for administrative convenience, one department is not bound to follow the decision of another department on the point at issue. Because the courts are of concurrent jurisdiction, the decisions of sister departments, while entitled to respectful consideration, are persuasive only. 15

Within each judicial department, however, once the court has decided a legal issue, subsequent appeals presenting similar facts should be decided in conformity with the earlier decision. 16 But because stare decisis is a principle of policy, not a mechanical adherence to prior decisions, there are some situations, as explained below, in which courts are permitted to depart from the doctrine. Nevertheless, while the courts do not view stare decisis as wedding them permanently to a past result, “the mere existence of strong arguments to support a different result is not sufficient, in and of itself, to compel the court to overturn judicial precedent…In the end there must be a compelling reason to change the established rule.” 17

Two related compelling reasons the First Department would overrule its own precedent are: 1) where the prior decision is manifestly inconsistent with the decision of the Court of Appeals that remains good law or 2) where there has been an intervening decision from the Court of Appeals that calls the First Department’s precedent into question. 18 For example, in George Campbell Painting v National Union Fire Ins. Co. of Pittsburgh, PA , 19 the First Department expressly overruled its long-standing rule, set forth in DiGuglielmo v Travelers Property Casualty , 20 that, notwithstanding the statutory language in Ins. Law §3420(d) requiring a liability insurer to give written notice of disclaimer “as soon as is reasonably possible,” an insurer “is not required to disclaim on timeliness grounds before conducting a prompt, reasonable investigation into other possible grounds for disclaimer.”

Based upon its reassessment of the statutory language and the decisions of the Court of Appeals interpreting it, and dictated by “the policy considerations embodied in the law,” George Campbell Painting held that “§3420(d) precludes an insurer from delaying issuance of a disclaimer on a ground that the insurer knows to be valid while investigating other possible grounds for disclaiming.” 21

Recent Precedent

Even in the absence of an intervening Court of Appeals precedent, the First Department has declined to follow its precedent where it considers it wrongly decided. When it comes to a “recent” precedent from a different panel of the same court, however, the tradition of the First Department has been to follow it, and not to decline to do so. In fact, before the Calcano-Tselebis dichotomy, it appears that the First Department has never declined to follow one of its own decisions that was rendered within the past three years or less. 22

Moreover, even when the First Department has decided to reject its prior precedent, it almost always refuses to explicitly “overrule it.” Rather, the court simply “declines to follow it,” which suggests the court’s reluctance to overrule itself. 23 The exception is, as noted, when the Court of Appeals’ precedent mandates it. Still, whether the court uses the term “overrules” or “declines to follow,” the practical effect is the same. 24 Either way, the ruling completely eviscerates the precedential value of the prior ruling with which the court disagrees. Indeed, both the Official Court Reporter and litigants operate under the tenuous presumption that the most recent ruling controls.

The First Department’s historical hesitance to decline to follow its own “recent” precedent constitutes sound policy. For instance, declining to follow recent precedent by a different panel of judges of the same court creates the potential to polarize the court and threatens collegiality among the judges. Moreover, because “the court is an institution, not merely a collection of individuals, the given rule of law [should] not change merely because the personnel of the court [happens to] change.” 25 Such practice would invariably result in the kind of jurisprudential disorder that unacceptably obliterates the expectations of litigants and the bar.

For the foregoing reasons, one panel of the First Department, or any other department, should not depart from a holding of a previous panel of the same court merely because it happens to disagree with another panel’s legal conclusions. Of course, after a “significant” number of years, the court may decide that an opinion has not survived the test of time. Indeed, rejection by some other department of the Appellate Division or criticism by legal commentators may provide the occasion for a panel to conclude after a sufficient number of years that a prior precedent should not be followed. 26 Likewise, after a significant number of years, the infusion of new judges to the court may provide a different perspective on an issue at hand. And “[wh]en appropriate, [courts should] not hesitate to examine common-law doctrines in view of changes in society’s mores, institutions, and problems, and to alter those doctrines where necessary.” 27

It remains an open question whether the Calcano-Tselebis skirmish that has fragmented the First Department constitutes a mere aberration or a worrisome trend. At worst, the Calcano-Tselebis jousting may be interpreted as the court’s loosening of its historical discipline of strict adherence to stare decisis. In fact, as noted by one legal scholar, Professor David Siegel, the Calcano-Tselebis struggle seems unnecessary considering that it stems from an attempt to resolve a narrow issue unlikely to have major significance whichever way it is decided. 28

To be fair, it was Tselebis , not Calcano , that declined to follow a recent precedent from the First Department. Moreover, Calcano declined to follow Tselebis on the explicit ground that Tselebis was manifestly inconsistent with a prior precedent from the Court of Appeals. 29 Calcano explained that it was simply following Thomas , 30 which explicitly had held that where the record on which summary judgment is submitted to the motion court raises triable issues of fact of comparative negligence, the plaintiff is not entitled to summary judgment.

Still, Tselebis declined to follow Thomas on the ground that it could not be reconciled with CPLR 1411, which states that such conduct merely acts to diminish the plaintiff’s recovery in proportion to the culpable conduct of the defendant. 31 Thus, presented with the view from a different panel of judges from the same court that CPLR 1411, rather than Thomas , was controlling, the Calcano panel could have been content to adhere to stare decisis and thus constrained to follow Tselebis , mindful that review by the Court of Appeals was readily available, as the panel in Maniscalco later recognized.

En Banc Review

The U.S. circuit courts of appeals, among many other appellate courts, has avoided such intra-division conflict by engaging in en banc review. In such en banc proceeding, all judges in a specific division convene to resolve an intra-division conflict on a point of law so that the disputed issue may be conclusively settled in that division. 32 En banc proceedings are well established in American jurisprudence; the U.S. Supreme Court has recognized and approved of them in the federal system, and at least 19 other states use some form of en banc review. 33

Critics of en banc proceedings, however, point out that such proceedings may place severe strain on judicial resources already considered overburdened, by requiring additional briefings in the same case. 34 While many compelling arguments may be advanced in favor of en banc review, an insurmountable obstacle remains in this state: the lack of any authority in the New York Constitution, statutes, or precedent supporting the procedure by New York state appellate courts. Nor can the plain language of Section 4(b), Article IV be ignored: “In each appellate division, four justices shall constitute a quorum, and the concurrence of three shall be necessary to a decision. No more than five justices shall sit in any case.” Thus, any panel convened with more than that five judges appears to be in direct conflict with the text of the state constitution.

The U.S. Court of Appeals for the Second Circuit, however, has, at times, made use of an informal “mini-en banc” procedure when issuing panel decisions that may conflict with prior panel opinions. These mini-en banc decisions state that the panel has circulated the opinion to all active judges prior to filing, and that no judge objected to the decision. 35

For the benefit of the litigants and the public, and for enhancement of the integrity of the court, the First Department should consider implementing a similar procedure of requiring the circulation of a panel’s proposed decision that may conflict with prior panel opinions to all active members of the court. Obviously, an objection by members of the court would not lead to en banc review, which is not available in New York state courts. Nevertheless, at the very least, such procedure would allow all members of the court to see and comment on it prior to its issuance. A healthy exchange of views and expression of disagreement by the other members of the court outside the deciding panel may ultimately discourage the panel from rendering a decision that may engender future skirmishes like in the Calcano-Tselebis 
divide.

William Ramos is a court attorney in the Appellate Division, First Department. The views in this article are the author’s own.

Endnotes:

1. The New York State Constitution provides for seven permanent justices in the First Department, and the governor may appoint additional justices in accordance with the court’s needs (see N.Y. Const. art. VI, §4(b), (e)).

2. A full bench consists of five justices, but four are necessary for a quorum, and only three are needed for a decision (NY Const. art. VI, §4(b), (e)); see also Alan D. Scheinkman and David D. Siegel, Practitioner’s Handbook for Appeals to the Appellate Divisions of the State of New York 4 (N.Y. State Bar Ass’n, 2d ed. 2005).

3. See e.g. Lopez v. Garcia, 67 AD3d 558 (1st Dept. 2009); Tann v Hollands, 224 AD2d 230 (1st Dept. 1996).

4. 83 AD3d 418, 419 (1st Dept. 2011).

5. 72 AD3d 198, 200 (1st Dept. 2010).

6. 91 AD3d 468 (1st Dept. 2012).

7. See e.g., Wein v Robinson, 92 AD3d 578 (1st Dept. 2012); Marte v. City of New York, 92 AD3d 618 (1st Dept. 2012); Maniscalco v. New York City Transit Authority, 95 AD3d 510 (1st Dept. 2012).

8. 95 AD3d 510 (1st Dept. 2012).

9. See 98 AD3d 848 (1st Dept. 2012).

10. In Capuano, the defendant apparently did not contest the plaintiff’s allegation that the work site lacked adequate lighting, which constituted a violation of the Industrial Code, 12 NYCRR 23-1.30, and thus supported a Labor Law 241(6) claim. Instead, the defendant argued that plaintiff may have been contributorily negligent, which the majority found was devoid of merits.

11. A thorough discussion of the issue can be found at 242 Siegel’s Practice Review 1 (2012).

12. See Slip Opinion No: 2012 NY Slip Op 77557(U)2012.

13. People v. Bing, 76 NY2d 331, 338-39 (1990).

14, See Salazar v. Novalex Contracting Corp., 72 AD3d 418 (1st Dept. 2010).

15. Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663 (2d Dept. 1984).

16. Dufel v. Green,198 AD2d 640 (1st Dept. 1993) affd 84 NY2d 795 (1995).

17. Dufel v. Green, supra, 198 AD2d 64.

18. See e.g. BP A.C. Corp. v. One Beacon Ins. Group, 33 AD3d 116 (1st Dept. 2006).

19. 92 AD3d 104 (1st Dept. 2012).

20. 6 AD3d 344 (1st Dept. 2004) lv to appeal denied, 3 NY3d 608 (2004).

21. George Campbell Painting v. National Union Fire Ins. Co. of Pittsburgh, PA, 92 AD3d at 106 (1st Dept. 2012).

22. See e.g. Fletcher v. Dakota, Inc., 99 AD3d 43 (1st Dept. 2012) declining to follow Pelton v. 77 Park Ave. Condominium, 38 AD3d 1 (1st Dept. 2006); In the Matter of Bernstein Family Limited Partnership et al. v. Sovereign Partners, L.P., et al., 66 AD3d 1 (1st Dept. 2009) declining to follow Geneseo Police Benevolent Assn., Council 82, Am. Fedn. of State, County and Municipal Employees, AFL-CIO v. Village of Geneseo, 91 AD2d 858 (1st Dept. 1982); People v. Hill, 39 AD3d 1 (1st Dept. 2007) declining to follow People v. Adams,13 AD3d 76 (1st Dept. 2004); Hudson View II Assoc. v. Gooden, 222 AD2d 163 (1st Dept. 1996) declining to follow Connolly v. Griffin, 201 AD.2d 371 (1st Dept. 1994); Matter of DeFelice v. New York City Police Dept., 226 AD2d 176 (1st Dept. 1996) declining to follow Matter of Laureano v. Grimes, 179 AD2d 602 (1st Dept. 1992) and Mitchell v. Slade, 173 AD2d 226 (1st Dept. 1991); Matter of Port Auth. of N.Y. & N.J. v. Port Auth. Police Sergeants, 225 AD2d 503 (1st Dept. 1996) declining to follow Matter of Cine-Source, Inc. v. Burrows, 180 AD2d 592 (1st Dept. 1992); Allied Wholesale v. Asia N. Am. Eastbound Rate Agreement, 212 AD2d 472 (1st Dept. 1995) declining to follow Springs Mills v. Carolina Underwear Co., 87 AD2d 524 (1st Dept. 1982).

23. See e.g., In the Matter of Bernstein Family Limited Partnership et al. v. Sovereign Partners, L.P., et al., 66 AD3d 1 (1st Dept. 2009) declining to follow Geneseo Police Benevolent Assn., Council 82, supra, 91 AD2d 858 (1st Dept. 1982); Hudson View II Assoc. v. Gooden, 222 AD2d 163 (1st Dept. 1996) declining to follow Connolly v. Griffin, 201 AD2d 371 (1st Dept. 1994).

24. See endnote 16, supra.

25, People v. Taylor, 9 NY3d 129, 148 (2007).

26. See e.g., Matter of Ruggiero, 51 AD2d 969 (1st Dept. 1976) declining to follow Matter of Hamilton, 220 App. Div 536 (1927).

27. Adkins v. Thomas Solvent Co., 440 Mich. 293, 317, 487 NW2d 715 (1992).

28. 242 Siegel’s Practice Review 1 (2012).

29. Calcano, supra, 91 AD3d at 468-469.

30. Thoma v. Ronai, 82 NY2d 736, 737 (1993).

31. Tselebis, supra, 72 AD3d at 199-200.

32. See e.g. In re J.J., 111 Ohio St.3d 205, 855 NE2d 851.

33. See Textile Mills Securities Corp. v. Commissioner of Internal Revenue, 314 U.S. 326, 333–335 (1941); John B. Oakley, “Comparative Analysis of Alternative Plans for the Divisional Organization of the Ninth Circuit (2000–2001),” 34 U.C.Davis L.Rev. 483, 538–540.

34. See e.g. Tracey E. George, “The Dynamics and Determinants of the Decision to Grant En Banc Review,” 74 Wash. L. Rev. 213, 230 & n.94 (1999); see also Richard S. Arnold, “Why Judges Don’t Like Petitions for Rehearing,” 3 J. App. Prac. & Process 29,30-31 (2001).

35. See e.g., Farrell Lines Inc. v. Ceres Terminals Inc., 161 F.3d 115 (2d Cir. 1998); U.S. v. Cruz, 156 F3d 366 (2d Cir. 1998); U.S. v. Coffin, 76 F3d 494 (2d Cir. 1996); 4. B.K. Instrument, Inc. v. U.S., 715 F2d 713 (2d Cir 1983).