Appellate Practice

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 and courts in other states, New York State courts permit appeals from interlocutory orders such as those which decide discovery motions 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 procedural issues, knowledge of the substantive 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 major 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
• Appellate motions to strike records or briefs
• 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, appealability, the preservation of issues for review and the selection of issues to present on appeal) 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 during all phases of a litigation starting before an answer is filed and continuing through to trial and post-trial proceedings.
• 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.
• Post-trial motions to vacate or reduce adverse jury verdicts.
• Preparing memoranda of law to counsel clients on their rights and duties and 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
• United States Court of Appeals

The matters handled by the Appellate Practice Group include products liability, premises liability, general negligence, automobile liability, construction accident, contractual and common-law indemnification, insurance coverage, property damage as well as practice and procedural issues such as pleading and discovery matters.

It would be difficult to list all – or even a significant number – of the hundreds of appeals that LSK&D’s Appellate Practice Group has litigated over the years, from mundane matters to the most complex of matters involving multiple parties and cutting-edge legal issues.  We confine ourselves to listing a selection of both recent and landmark appellate decisions where the Appellate Practice Group has made a significant impact.

• Smith v. Lindemann, 710 F. App’x 101 (3d Cir. 2017): Where a client brought a joined legal malpractice action against four attorneys who represented the client in her divorce proceedings, one attorney moved to enforce an arbitration provision in his representation agreement with client. After the District Court for the District of New Jersey granted the attorney’s motion to stay the action and compel arbitration, the U.S. Court of Appeal for the Third Circuit held that New Jersey ethical rules for lawyers that purported to prohibit arbitration provisions in attorney-client representation agreements were preempted by Federal Arbitration Act.
• Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530 (2006):  The New York Court of Appeals affirmed dismissal of complaint of tenant whose child was burned by uncovered radiator because radiator did not malfunction, did not require repair and did not require a cover.
• Kihl v. Pfeiffer, 94 N.Y.2d 118 (1999): The New York Court of Appeals affirmed order striking complaint given plaintiff’s repeated failure to comply with court orders mandating discovery.
• Robinson v. Reed-Prentice Division of Package Machinery Co., 49 N.Y.2d 471 (1980): The New York Court of Appeals reversed order denying dismissal of complaint and holding that substantial subsequent modification of a product bars a products liability claim where the substantial modification was the proximate cause of the injury.
• DiMilia v. Hogarty, 182 A.D.3d 578 (2d Dep’t 2020): The Appellate Division affirmed the motion of defendant Wendy’s restaurants dismissing the complaint and the cross claim against it by co-defendant Hogarty.  Wendy’s demonstrated through its expert’s affidavit that it maintained the premises in a reasonably safe condition and did not have a duty to protect against the unforeseeable conduct of Hogarty.  Wendy’s also demonstrated that the location of the parking lot relative to the accident site merely furnished the condition or occasion for the accident.
• Plotkin v. Republic-Franklin Ins. Co., 177 A.D.3d 790 (2d Dep’t 2019): In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendants’ insured, where the causes of action sounded in assault, battery, false imprisonment, sexual misconduct, and negligent hiring and supervision, the Appellate Division upheld the disclaimer of coverage based upon late notice as a breach of a policy condition.
• Doyle v. Temco, 172 A.D.3d 554 (1st Dep’t 2019): Reversal of the Bronx County Supreme Court’s denial of defendants’ motions to compel discovery of plaintiff’s passports and information regarding her post-accident social media accounts, and to renew, based on a recently-rendered Court of Appeals decision.  Defendants argued that under Forman v. Henkin, 30 N.Y.3d 656 (2018), rev’g, 134 A.D.3d 529 (1st Dep’t 2015), plaintiff could not properly withhold such discovery in view of her claim of impaired quality of life.  Doyle was the first Appellate Division decision to address this aspect of Forman. 
• Scott v. New York City Hous. Auth., 176 A.D.3d 576 (1st Dep’t 2019): The Appellate Division affirmed an order granting summary judgment to the defendant because the plaintiff failed to comply with the notice of claim requirements of the General Municipal Law, in that she served a timely notice of claim with an incorrect description of the accident location and then untimely attempted to correct this error without seeking permission from the trial court.  The Appellate Division also found that the defendant was entitled to summary judgment on the merits because it did not have notice of the allegedly dangerous condition on the stairs.
• RLI Ins. Co. v Navigators Ins. Co., 172 A.D.3d 475 (1st Dep’t 2019): Before judgment was entered against its insured, the insurer paid its full policy limit of liability; that unconditional payment extinguished the insurer’s obligation to pay that part of the pre-judgment interest that accrued after the date of its payment, and there was no obligation to pay post-judgment interest.
• Diaz v. Gormley and Performance Food Group, A-4449-16T3, 2019 WL 361637 (App. Div. Jan. 30, 2019): The New Jersey Appellate Division affirmed a minimal damages trial verdict of $3,200 for pain and suffering and $2,800 for lost earnings, on the ground that plaintiff had over-treated for her injuries.  The Appellate Division also denied a new trial, rejecting plaintiff’s claim that defendants’ counsel had made prejudicial comments, and that the trial court improperly excluded evidence regarding a valid Erisa lien.
• Ahmed v. Macy’s Inc., 161 A.D.3d 446 (1st Dep’t 2018): The Appellate Division reversed an order of the New York County Supreme Court, which denied Macy’s summary judgment motion in a case arising from an allegation of defective escalator steps.  The Appellate Division agreed with Macy’s that its evidence – including its employees’ testimony, the escalator maintenance records, and government inspections – established that the escalator was regularly maintained before the accident and there were no reports of problems with it.  The court relied on a prior LSK&D appellate victory, Gjonaj v. Otis El. Co., 38 A.D.3d 384 (1st Dep't 2007).
• Graphic Arts v. Pine Bush, 159 A.D.3d 769 (2d Dep’t 2018): An insurer sought a judgment against a school district declaring that the insurer was not obligated to indemnify the school district and its administrators in connection with the students’ underlying civil rights action under various policies issued by it to school district, or that duty to indemnify would be limited to that part of the settlement that was found to be reasonable. The Appellate Division reversed the Supreme Court’s grant of the school district’s motion to dismiss, holding that whether the insurer was obligated to indemnify could not be decided on motion to dismiss.
• Duffy v. 274 W. 19, LLC, 148 A.D.3d 553 (2d Dep’t 2017): The Appellate Division reversed the denial of defendant’s summary judgment motion seeking dismissal of plaintiff claim that he struck his head while attempting to walk through a low door that led to a machine room.  The Appellate Division held that the low door was open and obvious condition that was not inherently dangerous; agreed that the alleged New York City Building Code violations did not apply to the building, which was erected in 1899, before the enactment of the Code; and rejected as speculative plaintiffs’ expert’s opinion that the door and exterior stair would violate whatever code edition was in effect at the time they were installed.
• Rego Park Holdings, LLC v. Aspen Specialty Ins. Co., 140 A.D.3d 1147 (2d Dep’t 2016): Plaintiffs sought coverage under their commercial general liability policy for the claims of two landowners who owned property adjacent to plaintiffs’ construction site and who sustained property damage from the operations of plaintiffs or their subcontractors. The insurer disclaimed coverage under the subsidence endorsement contained in the policy. In affirming the lower court’s award of summary judgment to the insurer, the Appellate Division held that the insurer’s policy was essentially enforceable for man-made conditions and thus did not insure the plaintiffs for any damage to the two adjoining properties caused by the plaintiffs or their subcontractors.
• Lasner v. Massachusetts Mut. Life Ins. Co., 140 A.D.3d 1023 (2d Dep’t 2016): The Plaintiff claimed that an insurance agent made certain misrepresentations as to the benefits provided by his disability policy, which he had reviewed in part when the policy first went into effect. The lower court denied defendant’s summary judgment motion and allowed plaintiff to amend his complaint to add a negligent misrepresentation claim. The Appellate Division granted summary judgment in favor of the insurance agent, holding that where the terms of the policy were provided to the plaintiff in writing, any reliance by him on an alleged misrepresentation by the insurance agent that the policy would pay the plaintiff lifetime benefits was unreasonable.
• Fredette v. Town of Southampton, 95 A.D.3d 940 (2nd Dep’t 2012): Reversing denial of summary judgment and dismissing products liability complaint against motorcycle manufacturer based upon negligent design, and manufacture, negligent entrustment and failure to warn theories.
• Spiconardi v. Macy’s East, Inc., 83 A.D.3d 472 (1st Dep’t 2011): Reversing denial of summary judgment in products liability claim where plaintiff claimed injury when a shirt she was wearing caught fire.
• Gross v. Empire State Building Associates, 4 A.D.3d 45 (1st Dep’t 2004): Reversing denial of summary judgment motion by owners of Empire State Building and holding that they 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.
• Amin Realty, LLC v. K&R Construction Corp., 306 A.D.2d 230 (2nd Dep’t 2003): Reversing order denying summary judgment dismissing complaint and holding that economic loss rule barred tort and strict products liability claims against supplier of concrete claimed to be defective.
• 6645 Owners Corp. v. GMO Realty Corp., 306 A.D.2d 97 (1st Dep’t 2003): Reversing order denying dismissal of complaint and holding that 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.
• Mines v. American Honda Motors Co., 305 A.D.2d 271 (1st Dep’t 2003): Affirming order excluding plaintiff’s evidence and holding that trial 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.

"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."

Key Contacts

Paul M. Tarr
Partner

  212-341-4351