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Monthly Archives: May 2016

Parties may not necessarily chart their own procedural course.

May 31, 2016
CPLR 3212, Summary Judgment, Uncategorized

Friends of Thayer Lake v Brown, ___ NY3d ___, 2016 NY Slip Op 03647 [2016]

We looked at this case last year, when the Appellate Division allowed the parties to chart their own procedural course to summary judgment. The Court of Appeals has now held that summary judgment is simply not available where the proof reveals factual issues, whether or not the parties ask for it.

The issue was whether a certain waterway in Hamilton County is navigable-in-fact, a determination which bears significantly on the property rights of the adjacent landowners. The parties moved and cross-moved for summary judgment, and the proof was such that the trial court stated its inclination to view the ultimate determination as one of fact, to deny the motions and leave the matter for trial. The parties, both before the trial court and in the Appellate Division, noted that despite an extensive record the essential facts were not in dispute and asked the court to issue a determination as a matter of law.

Noting the general principle that the parties may chart their own procedural course, the Appellate Division held that under the circumstances it was appropriate to accede to the parties’ request and determine the dispute as a matter of law.

The Court of Appeals has now “modi-versed,” that is, it has denied the motion that the Appellate Division granted, couching the determination in terms of a modification rather than an outright reversal. In so doing, it made two larger points.

First, the parties’ ability to “chart their own procedural course” has limits. Where, as here, the course they attempt to follow runs directly contrary to established procedures, they may not necessarily ask the court to come with them.

The second, related, point, is that a party moving for summary judgment must always show its entitlement to judgment as a matter of law, and that there are no material issues of fact. Where factual issues exist, summary judgment is simply the wrong vehicle, and must be denied.

Here, the parties’ submissions clearly raised conflicting factual claims in a case which is highly fact-specific. This, despite their claim that the facts were not in dispute. While a stipulated statement of facts is not required, the conflicting evidence means that neither party has shown its entitlement to judgment as a matter of law, and the dueling summary judgment motions should all have been denied. One may ask why, if the facts were not in dispute, the parties could not arrive at a stipulated set of facts.

To the extent that the parties could not agree on stipulated facts, and did not want to go to the expense of a long trial, an alternative resolution does present itself: The parties could stipulate to the admissibility of all of the conflicting evidence, and stipulate that it would constitute the trial record. The court could then entertain arguments as to the weight and effect of the evidence, and resolve factual issues accordingly. The problem with this approach, of course, is that the plaintiff still has to sustain that pesky burden of proof, and a tie still goes to the defendant. If the conflicting evidence is not resolved in plaintiff’s favor, the verdict must be against it, and to the extent that this is a declaratory judgment action, the declaration must be in defendant’s favor.

Judiciary Law §470 survives the constitutional challenge

May 26, 2016
attorneys, Judiciary Law § 470, Uncategorized

Schoenefeld v Schneiderman, ___ F3d ___, 2016 WL 1612845

Predictions are difficult, especially about the future. Much to my surprise, Judiciary Law 470, requiring non-resident attorneys to maintain a physical office in New York in order to practice here, has survived a constitutional challenge.

A year ago, I posted about the Court of Appeals determination in this case, construing Judiciary Law § 470 as meaning what it says: a non-resident attorney must maintain a physical office in New York in order to practice here. The Court had responded to a certified question from the Second Circuit, seeking to know whether the plaintiff’s constitutional challenge to § 470 could be avoided by an alternative reading. It seemed at the time that the Court of Appeals’ construction of the statute made the challenge unavoidable, and that it must inevitably fall afoul of the Privileges and Immunities Clause of the US Constitution.

Indeed, my comment at the time was

The tenor of the opinion is that the Court recognized that Judiciary Law § 470 cannot be sustained under the Privileges and Immunities Clause, and that it was unwilling to rewrite it in order to save it. That the Second Circuit will invalidate it seems a foregone conclusion.

Well, right and wrong. The challenge was indeed unavoidable, but the statute has survived.

The challenge came in federal court from a New Jersey attorney, duly admitted in New York and in compliance with all other requirements, who wished to practice in New York but not to open a second office here. She observed, correctly, that a New York attorney has no need for a formal office but can work from home.

The District Court found that the statute unduly burdened the rights of non-resident attorneys, without a corresponding justification in a state interest. In the Second Circuit, the State argued that the statute aimed only at ensuring that the attorney was amenable to the service of process, and could be satisfied by the designation of an agent for the service of process or even the maintenance of a post office box. Existing New York case law, unfortunately, did not support that interpretation.

Before considering the constitutionality of the statute, the Second Circuit wanted to be sure that the more lenient view of the statute’s requirements was not available and that the constitutional challenge could not be avoided. It therefore certified the question of what the minimum requirements for compliance were. The New York Court of Appeals rejected the alternate interpretations, holding that a physical office within the state is required in order to facilitate the service of process on attorneys.

The stage seemed set for a the Second Circuit to invalidate the statute as violative of the Privileges and Immunities Clause. The court found that there was no “protectionist purpose” behind the statute, favoring New York attorneys, but only the neutral purpose of providing a means of service of process on all attorneys. In fact, the court noted, it was the plaintiff who was seeking to be treated differently from New York resident attorneys. In so ruling, it had the benefit of the recent SCOTUS decision of McBurney v Young, 133 S.Ct. 1709. While not establishing a new rule of law, McBurney clarified that the privileges and immunities clause is violated only when the questionable law was enacted for a protectionist purpose. Contrast that with the Commerce Clause, which “regulates effects, not motives,” rendering irrelevant an inquiry into the reasons for enacting a statute with a discriminatory effect. (Schoenefeld had asserted Equal Protection and Commerce Clause claims, but they had been dismissed by the District Court and not appealed by her.)

There was a dissent, which regarded the majority’s approach as erroneously placing the burden of proving discriminatory intent on the plaintiff, instead of requiring the state to justify the discriminatory statute.