Thursday, May 23, 2013

More certified questions -- Turnover order

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

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

Certified Question -- Coverage for Replacement Costs

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.

Monday, May 13, 2013


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.

Tuesday, May 07, 2013

Smokers' Right to Medical Monitoring

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

 (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.