A Look at the Appellate Division (1st) from the Inside

Tomorrow's May 13th's New York Law Journal has a great article on the inner-workings of the Appellate Division.  Justice David B. Saxe, of the Appellate Division, First Department, writes about how the Justices prepare for arguments, procedural issues, and how the senority affects the order that the Justices enter the courtroom.  The title of the article is: How We Operate: An Inside Look at the Appellate Division, First Department

And best of all…the article is free.

Here are some excerpts.

A new justice cannot help but immediately notice that virtually every
formal act of the court, and most informal acts as well, require
recognition of the justices' seniority. For purposes of constituting
panels, the court's presiding justice (P.J.) is followed by the other
six "constitutional"1 justices in the order in which they were designated to the court. They are followed by the certificated2 justices and the "additional justices,"3
in the order in which they were designated to the court. Notably, for
other purposes, such as the assignment of chambers, seniority is solely
by date of designation to the court, and it is irrelevant whether a
justice is certificated. Seniority also dictates where each justice
sits on the bench for oral argument, in the conference room with the
panel after argument, in the conference room with the full bench, and
to some extent even in the lunch room.

It is the tradition at the First Department that most internal
documents, such as memoranda, calendars and schedules, refer to the
justices by their initials rather than their full names, presumably for
the sake of brevity. For those documents, I am not David B. Saxe, I am
DBS. This procedure may be useful in ensuring there is no confusion
between two justices who have the same or similar last names, such as
Justices David Friedman (DF) and Helen E. Freedman (HEF); however, it
can be singularly problematic where two justices' initials are
identical, as with Richard T. Andrias and Rolando T. Acosta.
Nevertheless, the tradition is so firmly etched into the court's
procedures that it is the justices who must be flexible; Justice
Andrias, as the more senior justice, is indicated by his initials RTA,
while Justice Acosta, as the more junior justice, must forgo the use of
his middle initial, and be known by the initials RA.

Preparing for Argument: In advance of each panel
sitting, each justice on the panel will be provided with the briefs and
records of the cases that are scheduled for that particular panel day.
Each justice is advised to maintain an area in chambers to put the
briefs and records for the next upcoming sitting date, where they will
be available for easy access, and be placed in the order that they will
appear on that day's calendar.

Chambers will also receive, in advance of the calendar date, a bench memo for most5
appeals on that calendar, each prepared by a court attorney – that is,
one of a pool of attorneys in our law department whose primary function
in the court is the preparation of such bench memos. These bench memos,
often referred to as "reports," consist of a complete discussion of the
facts, the decision of the lower court, the contentions on appeal, the
relevant law, and a legal analysis. The court attorney will also
provide a recommendation as to the suggested disposition of the appeal
(i.e., affirmance, reversal, modification, etc.) and usually the bench
memo will be accompanied by a short memorandum decision. Due to the
internal procedures followed by our law department, a senior
supervising court attorney who reviews the bench memo and
recommendation may differ with the recommendation or reasoning of the
court attorney.

Procedures After Argument: After a brief break, the
panel convenes in our second floor conference room to vote on that
days' appeal calendar. If the P.J. is on the panel, he or she is seated
in the center seat of our long rectangular conference table, with the
two most senior justices to his immediate right and the two most junior
justices opposite them. If the P.J. is not on that day's panel, the
J.P. of the panel sits in the seat to the immediate right of the center
seat, the next two senior justices on the panel sit to the immediate
right of the J.P., and the two most junior justices sit in the two
seats directly opposite the seats occupied by the J.P. and the next
most senior justice.

The justices generally bring to conference a folder containing their
court attorney reports, a copy of that day's calendar on which is noted
the initials of the justice assigned as the reporting justice for each
appeal, and a loose-leaf binder that contains what we call our "bible
sheets." A bible sheet is created for each appeal, and it contains the
name of the case and its appeal number, the names of counsel, the
initials of the court attorney who prepared the report and the names of
the justices who sat on that case, with the reporting justice's name
indicated by asterisks. As is perhaps suggested by its name, the bible
sheet becomes the framework for the work that follows.

Administrative Agencies

Matter of New York City Pedicab Owners' Assn., Inc. v New York City Dept. of Consumer Affairs, 2009 NY Slip Op 03108 (App. Div., 1st, Dept.)

"Administrative agencies can only promulgate rules to further the
implementation of the law as it exists; they have no authority to
create a rule out of harmony with the statute"
(Matter of Jones v Berman,
37 NY2d 42, 53 [1975]). Moreover, an administrative body may not
disregard definitions made by legislative bodies under the guise of
"interpreting" regulations it is empowered to administer. "The plain
language of the legislative enactment is controlling, and the
administrative agency may not make a unilateral ruling that is at
variance with the legislative enactment"
(Two Assoc. v Brown, 127 AD2d 173, 183 [1987], appeal dismissed & lv denied 70 NY2d 792 [1987]).

The bold is mine

Unclean Hands

Dolny v Borck, 2009 NY Slip Op 03129, (App. Div., 2nd, 2009)

In this action to impose a constructive trust upon certain real
property, the defendants made a prima facie showing of their
entitlement to judgment as a matter of law dismissing the complaint
based on the doctrine of unclean hands, and the plaintiff failed to
raise a triable issue of fact in opposition to the motion. Indeed, the
plaintiff conceded that he voluntarily participated in a scheme whereby
title to the subject property, in which he claims to have an ownership
interest, was conveyed to the defendants Philip Borck and Marilyn Borck
(hereinafter the Borcks) in foreclosure in order to place the property
beyond the reach of the plaintiff's judgment creditors, while the
plaintiff retained the beneficial ownership of the premises. Given the
plaintiff's admitted involvement in this alleged arrangement to convey
the property to frustrate his creditors in the collection of their
legitimate debts, his claim that the Borcks now should be compelled to
convey title to the premises to him pursuant to the terms of that
arrangement is barred by the doctrine of unclean hands
(see Festinger v Edrich, 32 AD3d 412, 414; Moo Wei Wong v Wong, 293 AD2d 387; Walker v Walker, 289 AD2d 225, 226; Zimberg v Zimberg, 268 AD2d 232; Lagonegro v Lagonegro, [*2]187 AD2d 490; Ta Chun Wang v Chun Wong, 163 AD2d 300, cert denied 501 US 1252; Muscarella v Muscarella, 93
AD2d 993). In this regard, the question of whether the Borcks knew of
the fraudulent purpose of the transaction is irrelevant (see Pattison v Pattison, 301 NY 65, 72; Vasquez v Zambrano, 196 AD2d 840).

The bold is mine.

Defense raised for first time in Reply may be considered on appeal

Jones v Geoghan, 2009 NY Slip Op 02752 (App. Div., 2nd, 2009)

Although the appellants expressly raised a defense based on the
emergency doctrine for the first time in their reply papers, we may
consider it on appeal. In the first instance, the defense was raised in
direct response to the allegation made in the plaintiff's opposition
papers that the decedent was struck by a van in motion, rather than
thrown into the path of a stopped van (see Conte v Frelen Assoc., LLC, 51 AD3d 620, 621; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630; see also Kelsol Diamond Co. v Stuart Lerner, 286
AD2d 586, 587). Moreover, "[a]lthough the existence of an emergency and
the reasonableness of a party's response to it will ordinarily present
questions of fact" (Bello v Transit Auth. of N.Y. City 12 AD3d 58, 60; see Makagon v Toyota Motor Credit Corp., 23 AD3d 443, 444), those issues, under the circumstances here, are determinable as a matter of law (see Vitale v Levine, 44 AD3d at 936; Gajjar v Shah, 31 AD3d at 378; Marsch v Catanzaro, 40 AD3d 941, 942; Garcia v Prado, 15 AD3d 347; Huggins v Figueroa, 305
AD2d 460, 462). The appellants' reply papers presented no new facts,
but only an issue of law which appears on the face of the record. Thus,
the defense based on the emergency doctrine may be considered on this
appeal, as that issue was briefed by the parties on appeal (see Hoffman v City of New York, 301 AD2d 573, 574) and could not have been avoided if brought to the Supreme Court's attention at the proper juncture (see generally Dugan v Crown Broadway, LLC, 33 AD3d 656; Hoffman v City of New York, 301 AD2d at 574; Block v Magee, 146
AD2d 730, 732-733). Further, the facts surrounding the events leading
up to the accident were known to the plaintiff and, thus, there was no
unfair surprise when the defense was raised by the appellants in their
reply to the plaintiff's opposition (cf. Vitale v Levine, 44 AD3d at 936; Bello v Transit Auth. of N.Y. City, 12 AD3d at 61).

As someone else noted, "Makes sense, since the raising of the defense is in response to an aff
in opp, and not something that had any place in the actual motion. I
can dig it."


Wolodkowicz v Seewell Corp., 2009 NY Slip Op 02776 (App. Div., 2nd, 2009)

At trial, over the plaintiff’s objection, the defendant was
permitted to present testimony of a previously undisclosed witness
regarding prior incident reports at the Dunkin Donuts, as well as the
store’s structure and outdoor lighting conditions. The plaintiff
previously had demanded disclosure of, inter alia, witnesses to “[t]he
nature and duration of any alleged condition which allegedly caused”
the plaintiff’s accident, and an April 4, 2007, preliminary conference
order required a response to her discovery demands within 30 days. In
addition, again over the plaintiff’s objection, the court permitted the
defendant to present photographs of the location of the accident that
it had failed to exchange with the plaintiff during discovery.

The jury determined that the
defendant was not negligent. Contrary to the plaintiff’s contention,
the verdict was not contrary to the weight of the evidence (see Matthias v Mary Immaculate Hosp., 274 AD2d 559).

However, the trial court erred in allowing an undisclosed witness to testify for the defendant (see Kavanaugh v Kuchner, 243 AD2d 445, 446), and a new trial is warranted under the circumstances (id.; Skowronski v F & J Meat Packers, 210 AD2d 392, 393; Carvache v New York City Tr. Auth., 175
AD2d 41, 42). We note that “there is no reason to preclude the
witness’s testimony at the new trial as the [plaintiff] can no longer
claim either surprise or lack of opportunity to prepare a responsive
defense” (Kavanaugh v Kuchner, 243 AD2d at 446).

The admission into evidence of the photographs marked Exhibits B
through F also was error. Defense counsel took the photographs during
the lunch recess immediately following the plaintiff’s direct trial
testimony and did not provide copies to the plaintiff, thereby
depriving her of the opportunity to counter them by taking her own
photographs. Accordingly, a new trial is warranted for this reason as
well (see Dugan v Dieber, 32 AD2d 815). The plaintiff’s
contention that the admission of the defendant’s photographs marked
Exhibits G through I was improper is unpreserved for appellate review
as her objection to the admission of these exhibits was withdrawn prior
to summation

The bold is mine.


Kydd v Daarta Realty Corp., 2009 NY Slip Op 02563 (App. Div., 2nd, 2009)

Although the neuropsychologist's affidavit indicated that he had
reviewed records relating to the infant plaintiff's medical history in
forming his opinion, he failed to identify any of these records. Thus,
there was no evidentiary foundation for his conclusion that the infant [*2]plaintiff's
"pervasive developmental delay (autism) developed long prior to his
history of elevated lead levels." The neuropsychologist also failed to
discuss the levels of lead in the infant plaintiff's blood, or to
explain why the levels of lead the child was exposed to could not have
caused and/or exacerbated his alleged delay and cognitive deficits.
Furthermore, the neuropsychologist's affidavit did not indicate the
training and experience he had in diagnosing lead-poisoning injuries in
children. Under these circumstances, the neuropsychologist's conclusory
opinion that the infant plaintiff's developmental disorder was not in
any way related to his history of elevated blood lead levels was
insufficient to make a prima facie showing of Daarta's entitlement to
judgment as a matter of law (see Baez v Sugrue, 300 AD2d 519, 520-521; Wynn v T.R.I.P. Redevelopment Assoc., 296 AD2d 176, 184; Walton v Albany Community Dev. Agency, 279 AD2d 93; see also Juarez v Wavecrest Mgt. Team, 88 NY2d 628).


Brantley v Municipal Credit Union, 2009 NY Slip Op 02256 (App. Div., 1st, 2009)

Respondent never argued before the motion court that petitioner
lacked standing to assert his own claims; it argued only that he lacked
standing to make claims with regard to certain persons who were not
named parties in this proceeding. Having failed to argue in either an
answer or a pre-answer motion to dismiss that petitioner lacked
standing to assert his own claims, respondent waived that defense (see e.g. Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Security Pac. Natl. Bank v Evans, 31 AD3d 278 [2006], appeal dismissed 8 NY3d 837 [2007]).

Similarly, respondent failed to argue that mandamus did not lie
in this proceeding. As respondent itself contends with respect to some
of petitioner's claims, an argument raised for the first time on appeal
should not be considered.

Posts will resume soon, I swear.

Because this is a side project to my side project, both of which are side projects to my actual work, I haven't had a lot of time to get the cases up.  I should have some free time this weekend, maybe tomorrow to update the blog with the 20 or so CPLR type cases that came out in the past few weeks.  It takes a lot more time and effort than you'd think to put up the posts.

If you really want to see the cases before they get over here, go over to my twitter account.  That gets updated first, then this.  I usually put a very short description of the case along with a link to the decision.  You can see all my CPLR twitter posts by clicking HERE.

Sorry.  I'll update this.  I promise.


CPLR 2221

Guillet v Willard, 2009 NY Slip Op 50372(U) (Sup. Ct., Monroe, 2009)


CPLR 1001

Friedland v Hickox, 2009 NY Slip Op 01579 (App. Div., 1st, 2009)


CPLR 2103

Matter of Lester v New York State Off. of Parks, Recreation & Historic Preserv., 2009 NY Slip Op 01651 (App. Div., 2nd, 2009)


CPLR 4532

Wang v 161 Hudson, LLC, 2009 NY Slip Op 01639 (App. Div., 2nd, 2009)


CPLR 6301

Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 2009 NY Slip Op 01638 (App. Div., 2nd, 2009)


CPLR 4503(a)

Sieger v Zak, 2009 NY Slip Op 01636 (App. Div., 2nd, 2009)


CPLR 5013

QFI, Inc. v Shirley, 2009 NY Slip Op 01632 (App. Div., 2nd, 2009)


CPLR 3107

Helm v Gwenn Lentine, M.D., P.C., 2009 NY Slip Op 01615 (App. Div., 2nd, 2009)


Impeaching own witness

Ferri v Ferri, 2009 NY Slip Op 01610 (App. Div., 2nd, 2009)


CPLR 2001

John M. Horvath, DC, PC v Progressive Cas. Ins. Co., 2009 NY Slip Op 29093 (Nassau Dist Ct, 2009)


CPLR 213(1) & CPLR 217

East Suffolk Dev. Corp. v Town Bd. of Town of Riverhead, 2009 NY Slip Op 01440 (App. Div., 2nd 2009)


CPLR 203(c)

Bryant v South Nassau Communities Hosp., 2009 NY Slip Op 01436 (App. Div., 2nd 2009)


CPLR 3126

Bennett v Stybel, 2009 NY Slip Op 01434 (App. Div., 2nd, 2009)


CPLR 2221(e)

Sobin v Tylutki, 2009 NY Slip Op 01465 (App. Div., 2nd, 2009)

Utility Audit Group v Corp., 2009 NY Slip Op 01470 (App. Div., 2nd, 2009)


CPLR 1013 & 4545.

Fasso v Doerr, 2009 NY Slip Op 01320 (Ct. App., 2009)


CPLR 2104

Williamson v Delsener, 2009 NY Slip Op 01333 (App. Div., 1s, 2009)


CPLR 3211(e)

HSBC Bank, USA v Dammond, 2009 NY Slip Op 01445 (App. Div., 2nd, 2009)


CPLR 3012(b)

Howard B. Spivak Architect, P.C. v Zilberman, 2009 NY Slip Op 01400 (App. Div., 1st, 2009)