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Appellate Practice


"No law firm can offer full-service representation to its clients unless it can protect its successes and reverse its losses in court.  It is this belief that has inspired us to maintain a Practice Group that is devoted to appeals."


LSK&D is one of the few law firms in New York that maintains a separate practice group dedicated to appellate practice. The need for a specialized group is particularly critical in New York because, unlike the federal courts, the state courts permit appeals from interlocutory orders such as those which decide discovery and other pre-trial matters including motions for summary judgment, motions to dismiss, motions to strike or amend pleadings and motions involving third-party practice.

LSK&D recognizes that appellate practice requires unique skills that involve a blend of analytical ability, knowledge of the law and writing skills.

We safeguard our clients’ interests and keep legal costs down by using the appellate courts to seek review of critical interlocutory orders that can have a serious impact on the trial of cases, their settlement value and the possibilities for transfer of the risk to co-defendants or third-party defendants.

Some of the tools the Appellate Practice Group uses include:

  • Stays of trial pending appeal
  • Writs of mandamus
  • Appeals of adverse orders

The attorneys in the Appellate Practice Group are not only expert in the procedural aspects of appellate practice (which involve such questions as the timing of the appeal, appellate jurisdiction, the selection of issues to present on appeal and the preservation of issues for review) but also in matters of substantive law.

In addition to writing and arguing appeals, the Appellate Practice Group is also responsible for:

  • Researching complex issues of state and federal law
  • Day-to-day consultation with the firm’s trial lawyers to help shape the manner in which the lawyers approach and resolve litigation issues
  • Preparing pre-trial briefs on evidentiary, procedural and substantive law issues
  • Preparing proposed jury charges
  • Preparing dispositive motions in major cases and cases involving complex and emerging legal issues
  • Preparing memoranda of law to counsel clients on changes and new developments in statutory and decisional law

The courts in which the Appellate Practice Group has handled appeals include:

  • New York State Supreme Court, Appellate Division
  • New York State Court of Appeals
  • New Jersey Superior Court, Appellate Division
  • Pennsylvania State appellate courts
  • United States Court of Appeals (Second, Third, Fourth, Eighth, Ninth and Eleventh Circuits)

Important Decisions

The matters handled by the Appellate Practice Group run the gamut from products liability to premises liability to general negligence to automobile liability to property damage to practice and procedural issues such as pleading and discovery matters.

It would be difficult to list all – or even a significant number – of the many landmark appeals that LSK&D’s Appellate Practice Group has litigated over the years. We confine ourselves to listing a selection of both recent and landmark appellate decisions where the Appellate Practice Group has made a significant impact.

  • Gross v. Empire State Building Associates, ___ A.D.3d ___, ___ N.Y.S.2d ___, 2004 WL 385635 (1st Dep’t 2004): Owners of Empire State Building could not be held liable for a 1997 shooting on the building’s observation deck based upon plaintiffs’ claim that the building owner should have installed metal detectors to screen all visitors. Order denying summary judgment reversed and complaint dismissed.

  • Freni v. Eastbridge Landing Associates, L.P., 309 A.D.2d 700, 767 N.Y.S.2d 5 (1st Dep’t 2003): Defendants were entitled to have plaintiff submit to an examination by a non-M.D. vocational rehabilitation expert to develop information on his loss of earnings claim. Order directing plaintiff to submit to vocational rehabilitation examination affirmed.

  • 6645 Owners Corp. v. GMO Realty Corp., 306 A.D.2d 97, 762 N.Y.2d 60 (1st Dep’t 2003): Claim for legal malpractice accrued when representation ended and was time-barred because the action was commenced more than three years after the representation ended. Order denying summary judgment reversed and complaint dismissed.

  • Amin Realty, LLC v. K&R Construction Corp., 306 A.D.2d 230, 762 N.Y.S.2d 92 (2nd Dep’t 2003): Economic loss rule barred tort and strict products liability claims against supplier of concrete claimed to be defective. Order denying summary judgment reversed and complaint dismissed.

  • Mines v. American Honda Motors Co., 305 A.D.2d 271, 761 N.Y.S.2d 24 (1st Dep’t 2003): Court properly precluded plaintiff from offering evidence that airbags deployed at what plaintiff claimed was an improperly low impact given plaintiff’s failure to supplement answers to defendant’s interrogatories. Order excluding plaintiff’s evidence affirmed.

  • Kihl v. Pfeiffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87 (1999): Defendant auto manufacturer was entitled to an order striking plaintiff’s complaint given plaintiff’s repeated failure to comply with court orders mandating discovery. Order striking complaint affirmed.

  • Lamia v. Federated Department Stores, Inc., 263 A.D.2d 498, 692 N.Y.S.2d 738 (2nd Dep’t 1999): Defendant store could not be held liable to a shopper who tripped over the leg of a clothing rack because the condition was readily observable. Order denying summary judgment reversed and complaint dismissed.

  • Robinson v. Reed-Prentice Division of Package Machinery Co., 49 N.Y.2d 471, 426 N.Y.S.2d 717 (1980): Substantial subsequent modification of a product bars a products liability claim where the substantial modification was the proximate cause of the injury. Order denying dismissal of complaint reversed and complaint dismissed.


Steven B. Prystowsky

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