Appellate Practice

Tomorrow, March 14, 2015, is Pi Day. (3.1415, don’t you see?) In honor thereof, I present:

Kumar v PI Assoc., LLC,

___ AD3d ___, 2015 NY Slip Op 00849 [1st Dept., 2015]

When a verdict is internally inconsistent, the allowable remedies are either sending the jury back to reconsider or a new trial. The trial court may not resolve the inconsistency by making its own findings of fact.

This was a sidewalk trip-and-fall in front of a storefront owned by the defendant PI Associates and leased to the defendant Pretty Girl. The jury found that the plaintiff, PI and Pretty Girl were all negligent, but that only Pretty Girl’s negligence was a proximate cause of the accident. The jury then apportioned fault at 80% against Pretty Girl and 10% each against plaintiff and PI. The apportionment against plaintiff and PI was, of course, inconsistent with the finding of lack of causation.

The inconsistency was immediately recognized by the court and the parties. Rather than send the jury back for further consideration, the court discharged the jury and entertained motions. Plaintiff moved to set aside the inconsistent verdict and for a directed verdict finding that PI’s negligence was a proximate cause. PI, for its part, moved to set the inconsistent verdict aside and for a directed verdict setting its share of fault at zero. Supreme Court chose a third alternative, setting the verdict aside and issuing a directed verdict finding the negligence of both plaintiff and PI to have been proximate causes of the accident. Read More

Meng v Allen,

117 AD3d 621, 985 N.Y.S.2d 875 [1st Dept., 2014]
There is no appeal as of right from an order made sua sponte, and an appeal taken from such an order is subject to dismissal. That does not mean, however, that there is no avenue of redress. The proper avenue is to move on notice to vacate the sua sponte order, and if the motion is denied to appeal from the denial.

Here, Supreme Court, sua sponte, reinstated an order dismissing the complaint on forum non conveniens grounds. (The sequence of events leading to the reinstatement is not specified in the decision.) The plaintiff failed to move to vacate the sua sponte order, and the attempted appeal from the sua sponte order itself was dismissed as not being from an appealable paper. Read More

Matter of Veronica P. v Radcliff A.,

___ NY3d ___, ___ NYS2d ___, 2015 NY Slip Op 01300 [February 12, 2015]

The Court of Appeals holds here that an order of protection from the Family Court, based on a finding of a family offense, is not rendered moot and unappealable solely because it has expired. The continuing consequences to the respondent, both in legal proceedings and to his reputation, require the availability of appellate review.

Even though the terms of the order do not contain an explicit finding of guilt, the issuance of the order itself implies a finding of a family offense, which may work against the respondent in future proceedings. The underlying oral decision, containing the explicit finding, is likely to come to light and have adverse consequences. The existence of the order may be used to impeach his credibility. The order remains in police databases, and increases the likelihood of his being arrested in the future. Moreover, the order carries with it the stigma of a family offender, and adversely affects the respondent both socially and in the job market.

Therefore, the Court reversed the order of the Appellate Division dismissing the appeal for mootness, and remitted for a consideration of the merits.

Read More

D’Alessandro v Carro, 123 A.D.3d 1, 992 N.Y.S.2d 520 [1st Dept., 2014]

The First Department here left undisturbed a ruling which was clearly against the settled law of the Department, on an issue which the Court of Appeals subsequently settled statewide by agreeing with the First Department. Two procedural issues are presented: the effect on subsequent appeals of the dismissal of an appeal for failure to prosecute; and the meaning of “a change in the law” as it applies to motions to reargue or renew. The substantive question was whether nonpecuniary damages are available in a legal malpractice case, where the malpractice led to unnecessary years in prison. Read More