Appellate Practice - Significant Cases

  • Doolin v. United States, 918 F2d 15 (2d Cir. 1990), 90-2 U.S. Tax Cas. (CCH) P60,047, 66 A.F.T.R.2d (RIA)
    The United States must pay interest on a lost tax refund check, from the date of overpayment to the date (even if years later) of the issuance of a replacement check.

  • Matter of Spencer v. Spencer, 10 NY3d 60 (2008)
    New York aligned itself with all other states in its interpretation of the Full Faith and Credit for Child Support Orders Act (FFCCSOA) 28 USC 1738B, by holding that the New York Courts do not have subject matter jurisdiction to modify a Connecticut child support order which ends at age 18, so as to extend the duration of the order to New York's age 21, so long as one party or any of the children reside in Connecticut, the issuing state.

  • Iannotti v. Consolidated Rail Corp. 74 NY2d 39 (1989)
    New York's Recreational Use Statute, which provides protection from personal injury claims arising from the use of land for recreational uses, applies to claims against owners of commercially developed land if used for such recrational purposes.

  • Barrett v. Watkins, 52 AD3d 1000 (3d Dept. 2008)
    A court may not grant summary judgment against a party on a non-party's motion to intervene.

  • Matter of Mary XX., 52 AD3d 983 (3d Dept. 2008), mot. for lv. app. den. 11 NY3d 706 (2008)
    A guardian of the person lacks standing to object to an accounting by her ward's trustee where a guardian ad litem has been appointed to represent the ward's interests.

  • Matter of Hyde, 44 AD3d 1195 (3d Dept. 2007), mot. for lv. den., 9 NY3d 1027 (2008).
    A trustee is not liable for failure to diversify a trust if the trust is funded solely with the stock of a closely-held company which has an unusual capital structure making it difficult to liquidate for its full value.

  • Matter of Rockfeller, 44 AD3d 1170 (3d Dept. 2007)
    Objections to an executrix' accounting and unusually high attorney's fees should be dismissed where it was objectants who needlessly caused most of the attorneys' fees and were responsible for the matters on which their objections were based.

  • Matter of Scale, 38 AD3d 983 (3d Dept. 2007)
    A court may not consider an attorney-draftsman's affidavit in order to construe a will as leaving a bequest not to a charity named in the will but, rather, to another charity with a similar name.

  • Golub v. Ganz, 22 AD3d 919 (3d Dept. 2005)
    Clarified NY law on pleading grounds for divorce and appreciation of separate property.

  • Kingsley Arms v. Sano-Rubin Construction Company, Inc., 16 AD3d 813 (3d Dept. 2005)
    Represented general contractor in successful appeal defending late claim by sub-contractor.

  • Matter of Auclair v. Bolderson, 6 AD3d 892 (3d Dept . 2004)
    Clarified NY law on subject matter and personal jurisdiction under federal and interstate child support statutes.

  • Fox v. Fox, 309 AD2d 1056 (3d Dept. 2003)
    Upheld the date of commencement of the matrimonial action as the valuation date of a law practice even though the owner had retired during the pendency of the litigation.

  • Borden v. Capital District Transportation Authority, 307 AD2d 1059 (3d Dept. 2003)
    Represented defendant on appeal of order that had set aside verdict of no cause.

  • Trager v. Town of Clifton Park, 303 AD2d 875 (3d Dept. 2003)
    Represented town in successful defense of impact fees.

  • Douglas v. Douglas, 281 AD2d 709 (3d Dept. 2001)
    Affirmed the use of the excess earnings method of valuation and a 50% distribution to the wife of the marital appreciation in the husband's pre-marriage interest in a law partnership.

  • Asterino v. Asterino & Assocs., 275 AD2d 517 (3d Dept. 2000)
    A default judgment should be vacated where it was rendered due to the failure, by defendants' original counsel which had a conflict of interest, to confirm that substitute counsel has assumed the defense of the litigation.

  • Estate of Hatch ex rel. Ruzow v. NYCO Minerals Inc., 270 AD2d 590 (3d Dept. 2000), 145 Oil & Gas Rep. 354
    A mining company's claim for the refund of royalties allegedly paid by mistake will be denied where such payments were due to the mining company's failure to timely seek legal advice about its obligations under the lease calling for the payment of royalties.

  • Navilia v. Windsor Wolf Rd. Props. Co., 249 AD2d 658 (3d Dept. 1998)
    A real estate sales agreement providing that the purchaser will pay for a new house for the seller who retained a life estate, if he selected the house within a specified time, are not payable when the seller does not timely select the new house; to the contrary, the seller must reimburse certain related payments made by the purchaser.

  • Zelonka v. Town of Schodack, 245 AD2d 795 (3d Dept. 1997)
    The trial court improperly granted summary judgment to a municipality whose independent contractor's conduct may have contributed to a personal injury at the municipality's landfill, which created a question of fact for the jury.

  • Micheli v. E.J. Builders, 241 AD2d 610 (3d Dept. 1997)
    A party's counsel may not be disqualified without an evidentiary hearing if there are questions of fact about whether the adverse party provided any confidential information to such counsel.

  • Kim v. Dvorak, 230 AD2d 286 (3d Dept. 1997)
    A physician's defamation claim against his patient and his patient's daughter, based on complaints to the physician's employer about the quality of his care, must dismissed as protected by qualified privilege.

  • Williams v. Harrington, 216 AD2d 761 (3d Dept. 1995) app. dsmsd in part, den. in part, 87 NY2d 967 (1996).
    A plaintiff's constructive trust claim must be dismissed if he fails to timely provide requested discovery.

  • First Am. Bank v. L.V. Lowden, Inc., 197 AD2d 774 (3d Dept. 1993)
    Summary judgment may not be granted on a personal guarantee when defendant has raised a question of fact regarding a forged signature.

  • DiRienzo v. State, 187 AD2d 879 (3d Dept. 1992)
    The state is responsible for personal injuries resulting from its collecting diffuse surface waters and then casting them onto a neighboring landowner's premises.

  • Malatino v. Malatino, 185 AD2d 605 (3d Dept. 1992)
    Was one of the first cases decided under the 1989 Child Support Standards Act to clarify the method of determining the income of a business owner who had control over his salary.

  • Grasso v. Mathew, 164 AD2d 476 (3d Dept. 1991).
    An attorney's defamation claim against his client's husband in divorce proceedings must be dismissed, with sanctions, when the husband writes to his wife complaining about the attorney's conduct in those proceedings.