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.
- Bloomingdale’s, Inc. v. New York City Transit Authority, 13 N.Y.3d 61, 886 N.Y.S.2d 663 (2009), aff’ing 52 A.D.3d 120, 859 N.Y.S.2d 120 (1st Dep’t 2008): Affirming order holding that Bloomingdale’s trespass and nuisance claims were timely based upon Transit Authority having cut its storm drain.
- Roberts v. Boys & Girls Republic, Inc., 10 N.Y.3d 889, 861 N.Y.S.2d 603 (2008), aff’ing 51 A.D.3d 246, 850 N.Y.S.2d 38 (1st Dep’t 2008): Affirming dismissal of complaint on assumption of risk grounds by mother of baseball player struck by bat-swinging baseball player on sidelines.
- Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530 (2006): Affirming 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, 700 N.Y.S.2d 87 (1999): Affirming 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, 426 N.Y.S.2d 717 (1980): Reversing 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.
- Tambriz v. P.G.K. Luncheonette, Inc., 124 A.D.3d 626, 2 N.Y.S.2d 150 (2nd Dep’t 2015): Out-of-possession landlord owed no duty to protect pedestrian on public sidewalk in front of building from attack by patrons and employees of premises tenant.
- Dawson v. YMCA of Long Island, Inc., 120 A.D.3d 748, 991 N.Y.S.2d 360 (2nd Dep’t 2014): Modifying order on appeal by dismissing punitive damages and loss of consortium claims in wrongful death case.
- Bucsko v. Gordon, 118 A.D.3d 653, 987 N.Y.S.2d 653 (2nd Dep’t 2014): Nursing home was entitled to summary judgment dismissing claim by establishing that it conformed to good medical and nursing practice.
- Nouel v. 325 Wadsworth Realty, LLC, 112 A.D.3d 493, 977 N.Y.S.2d 217 (1st Dep’t 2013): Affirming dismissal of negligent hiring, negligent retention complaint based upon building superintendent having sexually assaulted tenant’s child.
- Fredette v. Town of Southampton, 95 A.D.3d 940, 944 N.Y.S.2d 206 (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, 923 N.Y.S.2d 28 (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.
- New York City Housing Authority v. Underwriters at Lloyd’s of London, 61 A.D.3d 726, 877 N.Y.S.2d 193 (1st Dep’t 2009): Insured established that insurer’s disclaimer was untimely, barring insurer from disclaiming coverage.
- Shalot v. Schneider National Carriers, Inc., 57 A.D.3d 885, 871 N.Y.S.2d 239 (2nd Dep’t 2008): Affirming defense verdict and rejecting as harmless error plaintiff’s claim of jury instruction error.
- Gross v. Empire State Building Associates, 4 A.D.3d 45, 773 N.Y.S.2d 354 (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.
- Freni v. Eastbridge Landing Associates, L.P., 309 A.D.2d 700, 767 N.Y.S.2d 5 (1st Dep’t 2003): Affirming order holding that defendants were entitled to have plaintiff submit to an examination by a non-physician vocational rehabilitation expert to develop information on his loss of earnings claim.
- 6645 Owners Corp. v. GMO Realty Corp., 306 A.D.2d 97, 762 N.Y.2d 60 (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.
- Amin Realty, LLC v. K&R Construction Corp., 306 A.D.2d 230, 762 N.Y.S.2d 92 (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.
- Mines v. American Honda Motors Co., 305 A.D.2d 271, 761 N.Y.S.2d 24 (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.
- Lamia v. Federated Department Stores, Inc., 263 A.D.2d 498, 692 N.Y.S.2d 738 (2nd Dep’t 1999): Reversing order denying summary judgment motion and holding that 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.