Hot-Button Decisions Keep Analytical Flames Burning

, New York Law Journal


E. Leo Milonas and Frederick A. Brodie
E. Leo Milonas and Frederick A. Brodie

A "hot bench" is the colloquial term for an appellate court that reads the briefs, reviews the record, and actively questions counsel at oral argument. Even when besieged by a polar vortex, the four Departments of the Appellate Division can present counsel with a bench hot enough to roast lawyers who serve up arguments that are "not so hot."

Below, we highlight some of the hot-button decisions issued during the final quarter of 2013 by New York's intermediate appellate courts, which cauterized simmering legal disputes in the flame of appellate analysis.

First Department

Summary Judgment. Belated summary judgment motions are a recurring headache for the courts, and the First Department intends to put a stop to them—or so said a 3-2 majority in Kershaw v. Hospital for Special Surgery.1 The decision, authored by Justice Paul G. Feinman, came down hard on a defendant that filed its summary judgment motion weeks after the court-imposed deadline. The defendant had sought to evade the deadline by styling the application as a "cross-motion" in response to a co-defendant's timely summary judgment filing.

Calling untimely summary judgment motions "sloppy practice," the First Department strictly enforced the rule that parties must bring dispositive motions within a court-established deadline unless the movant shows "good cause" for delay.2 In Kershaw, the tardy cross-motion was made "without any explanation for its untimeliness, let alone good cause." The defendant therefore failed to meet its burden, and the First Department majority would not render assistance. "Allowing movants to file untimely, mislabeled 'cross-motions' without good cause shown for the delay, affords them an unfair and improper advantage," Feinman wrote.

Consequently, even though the co-defendant's timely summary judgment motion was granted, the court ruled that the late cross-motion was properly denied, "regardless of its merits."

Two dissenting justices—Peter Tom, joined by Helen E. Freedman—viewed the court's approach to summary judgment deadlines as "unnecessarily rigid," particularly since the cross-motion was brought long before trial and caused no prejudice. The dissenters would have reached the merits and ruled in the defendant's favor.

Contracts. The Statute of Frauds' requirement of a writing for contracts not performable within one year is not subject to a "part performance" exception, the First Department ruled in Gural v. Drasner.3 The unanimous decision, authored by Justice David B. Saxe, resolves a conflict among previous decisions of the First Department.

The court's analysis boiled down to straightforward application of the principle that courts should assume the Legislature's failure to include provisions in a statute was deliberate. The Statute of Frauds' provision covering agreements to convey real property contains an express exception allowing courts to intervene "in cases of part performance."4 In contrast, the provision extending the Statute of Frauds to contracts that cannot be performed in one year contains no such exception.5 Therefore, despite earlier First Department decisions to the contrary, "the law simply does not provide for or permit a part performance exception for oral contracts," other than contracts to convey real estate.

As a result, plaintiff Jeffrey Gural, who claimed he had cleared and improved defendant Fred Drasner's land, could not obtain the reimbursement he alleged Drasner had orally promised.

Second Department

E-Filing. It's the stuff of nightmares: A lawyer prepares his summons and complaint, and then is told he must e-file. Using the e-filing system in Westchester County, he creates a temporary user account, files the papers and receives an email confirming the filing. However, the clerk's office later denies receiving the papers. After extended inquiries, the lawyer learns that he mistakenly used a "practice/training" account rather than the "live" e-filing system. By that time, however, the statute of limitations has expired.

Such snafus may be corrected, the Second Department held in Grskovic v. Holmes,6 a unanimous decision authored by Justice Mark C. Dillon. Enabling the bar to heave a collective sigh of relief, Dillon wrote that CPLR §2001 permits the "correction" of mistakes, including mistakes in filing a summons and complaint, "upon such terms as may be just," without regard to whether the other party is prejudiced.

As for the Westchester County e-filing system, the panel acidly observed that "the confirmatory email messages were anything but clear in indicating that counsel's filing of the summons and complaint was merely for training, to the point where the email messages could reasonably be viewed as misleading legal practitioners into believing that their e-filings actually had been accomplished."

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