Lately, we have seen a fair number of 3-2 rulings out of the Appellate Division, First Department, in construction litigation cases. Of course, one thing about virtually any 3-2 ruling is that, on a different day with a differently constituted panel, the ruling might have instead been 2-to-3. For this reason, one may hesitate to ascribe too much significance to such a ruling, at least until it recurs.
Yet, 3-2 rulings can be extremely illuminating. These are the rulings that reveal the fault lines in the law, the boundaries at which reasonable people can disagree.
