Second Opinions

The Second Circuit has certified two questions to the New York Court of Appeals. The questions are:

(1) May a court issue a turnover order pursuant to N.Y. CPLR § 5225(b) to an entity that does  not have actual possession or custody of a debtor’s assets, but whose subsidiary might  have possession or custody of such assets?

(2) If the answer to the above question is in the affirmative, what factual considerations
should a court take into account in determining whether the issuance of such an order is
 permissible?

The decision in Commonwealth of the Northern Marina Islands v. Canadian Imperial Bank of Commerce can be found here.

The Second Circuit has certified a question to the New York State Court of Appeals.  The question is:

If a fire insurance policy contains (1) a provision allowing reimbursement of replacement costs only after the property was replaced and requiring the property to be replaced "as soon as reasonably possible after the loss"; and (2) a provision requiring an insured to bring suit within two years after the loss; is an insured covered for replacement costs if the insured property cannot reasonably be replaced within two years?

The decision is Executive Plaza, LLC v. Peerless Insurance Co. can be found here.

Don't neglect your deadlines in the Second Circuit; you may not get a second chance.  The Second Circuit denied an appellant's motion to reinstate its appeal after it had missed a filing deadline.  And the opposing party had not even opposed the motion; on the contrary, it had consented.  The Court noted that the motion for reinstatement did not "append to it  appellant’s proposed brief or an appropriately detailed statement
demonstrating that the appeal is meritorious. Indeed, it does  not even mention the merits of the appeal, an important factor in  determining whether reinstatement of an appeal is appropriate. "  This is another "don't let this happen to you" case.

The decision in RLI Insurance Co. v. JDJ Marine, Inc. can be found here.

The Second Circuit has certified certain questions to the New York State Court of Appeals in a case brought by certain smokers against a cigarette manufacturer.  The questions are:


(1) Under New York law, may a current or former longtime heavy
 smoker who has not been diagnosed with a smoking-related disease, and who
 is not under investigation by a physician for such a suspected disease, pursue
 an independent equitable cause of action for medical monitoring for such a
 disease?

 (2) If New York recognizes such an independent cause of action for
 medical monitoring,
 (A) What are the elements of that cause of action?
 (B) What is the applicable statute of limitations, and when does
 that cause of action accrue?

The decision in Caronia v. Philip Morris USA, Inc. can be found here.

The National Organization for Marriage, Inc. ("NOM") brought an action seeking a declaratory judgment that the definition of a "political committee" in New York Election Law 14-100.1 violates the First Amendment.  It also sought preliminary and permanent injunctions barring enforcement of the statute.  The effect of being a political committee was that it would, among other things, be required to disclose contributions received and expenditures made.  NOM stated that it would not engage in its speech-related activities (opposing same-sex marriage) unless the requested relief was granted  The District Court dismissed the complaint for lack of jurisdiction, holding that NOM had not sought to ascertain its status with Board of Election nor had the Board of Elections attempted to enforce the "political committee" provision against NOM.

The Second Circuit reversed, holding that the case was ripe because NOM had a reasonable basis to conclude that it might be deemed a political committee under the statute, chilling its free speech rights and there was no prudential reason to abstain.  The Court further held that the case was not moot; although the election cycle had passed, the case fell in the category of cases "capable of repetition, yet evading review."  The Court vacated the District Court's determination that it lacked jurisdiction and remanded the case for further proceedings.

Judge Jon O. Newman dissented, stating that a determination on the merits is not appropriate until the Board of Elections determines whether NOM is a political committee.

The decision in National Organization for Marriage, Inc. v. Walsh can be found here.

The Supreme Court, having reversed the Second Circuit's decision in Kirtsaeng v. John Wiley & Sons, Inc., and held that the first-sale doctrine is applicable as a defense against a copyright infringement claim based on unauthorized resale of authorized copies manufactured abroad and remanded the case to the Second Circuit, the Second Circuit, having nothing further to decide, reversed the District Court's judgment and remanded the case to the District Court for such further proceedings as are appropriate prior to entry of a final judgment.  The Second Circuit's per curiam decision can be found here.

The Second Circuit, in a decision by retired Justice Sandra Day O'Connor, has certified a question to the New York State Court of Appeals, in a case involving New York's gun licensing rules.  The case involved an individual who was denied a gun license because he was not domiciled in New York; he merely had a vacation home in the State.  The relevant statute was understood to require a domicile in New York.  The individual brought an action, asserting that to the extent that the gun licensing statute prevented him from having a license, it was unconstitutional.  The District Court granted summary judgment to the State, dismissing the action.  On appeal, the Second Circuit declined to rule and certified the following question to the New York State Court of Appeals:


Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located?

The decision in Osterweil v. Bartlett can be found here.

The Second Circuit overturned a District Court decision that allowed a party to file a late notice of appeal.  The ECF staff had failed to update the party's attorney's e-mail address and, accordingly, the party did not receive notice of entry of a judgment against his client.  The District Court held that this was excusable neglect, warranting an opportunity to file a late notice.  The Second Circuit reversed.

The Court noted that it was the responsibility of the attorney to update the system in the ECF system and not the responsibility of the ECF stafff.  Hence, the failure to receive notice was solely the fault of the attorney, and the District Court has abused its discretion in extending the party's time to file a notice of appeal.

Judge Lynch dissented from the decision, stating the the Court should have deferred to the judgment of the District Court.

The decision in In re Worldcom, Inc. (Communications Network International, Ltd. v. MCI WorldCom Communications can be found here.

Malice.  The Second Circuit has certified a question to the New York State Court of Appeals.  In Georgitsi Realty, LLC v. Penn-Star Insurance Co., the Court had to address the question of whether an act performed on adjacent property that caused damage to the plaintiff's property can constitute "vandalism" under the plaintiff's property insurance company.  A subsidiary question of whether "malicious damage" may be found to result from an act not directed specifically at the insured property is critical to the resolution of the issue.  Because that question had not been decided by the New York State Court of Appeals and because the Second Circuit believed that that Court should have the opportunity to address taht issue, the Second Circuit has certified that question for decision to the New York State Court of Appeals.

The decision in the case can be found here.