Eileen Malay, Appellant,v.City of Syracuse, et al., Respondents.BriefN.Y.March 25, 2015 To Be Argued By: Frank S. Gattuso Time Requested: 10 minutes Onondaga County Clerk’s Index No.: 2012-3413 New York State Court of Appeals APL No.: 2014-00105 Court of Appeals State Of New York EILEEN MALAY, Plaintiff-Appellant, -against- CITY OF SYRACUSE, GARY W. MIGUEL, DANIEL BELGRADER, MICHEAL YAREMA, and STEVE LYNCH Defendants-Respondents. BRIEF FOR APPELLANT O’HARA, O’CONNELL & CIOTOLI 7207 East Genesee Street Fayetteville, New York 13066 Telephone: (315) 451-3810 Facsimile: (315) 451-5585 July 3rd, 2014 Frank S. Gattuso, Of Counsel TABLE OF CONTENTS Table of Authorities ...........................................................................................iii, iv Preliminary Statement ........................................................................................1 Jurisdiction .........................................................................................................1 Questions Presented ...........................................................................................1 Statement of Facts and Procedural History .......................................................3 Argument ...........................................................................................................7 Point I: CPLR 205 (a) Is To Be Liberally Construed ........................................7 Point II: CPLR 205(a) Has Long Been Interpreted As Preserving Legitimate Causes of Action While Promoting Judicial Economy ...................9 Point III: The Decisions of The Courts Below Contradict The Court of Appeals’ Holding That Termination Pursuant To CPLR 205(a) Occurs When A Plaintiff Has Exhausted Her Rights To The Litigation .................................13 Point IV: The Decisions of The Courts Below Would Compel Plaintiffs To Litigate Identical Claims In Different Forums And Subject Them To Dismissal ............................................................................................................18 Point V: The Appellate Division Did Not Follow Its Own Reasoning In Its Previous Maki v. Grenda Decision.........................................29 Conclusion .........................................................................................................31 i TABLE OF AUTHORITIES Cases Pages American Exp. Travel Related Services Co., Inc. v. Zalmen Reiss & Associates, Inc., 31 Misc.3d 1226(A) (Sup. Ct. 2011) ................................ 27 Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C., 5 N.Y.3d 514, 519 (2005) .............................. 21 Cenven, Inc. v. Bethlehem Steel Corp., 41 N.Y.2d 842, 843 (1977) .......... 18 Cohoes Hous. Authority v. Ippoliti-Lutz, Inc., 49 NY2d 961 (1980) .......... 19 Council of City of New York v. Giuliani, 93 N.Y.2d 60, 68-69, 1999) ....... 20 Dinerman v. Sutton, 45 Misc.2d 791 (Sup. Ct. 1965)…..…18, 19, 21, 23, 25 Franklin Co. v. Ginaccini, 563 N.Y.S.2d 977 (N.Y. City Civ. Ct. 1990) ............................................................................ 15 Hanover Ins. Co. v. U.W. Marx Inc., 238 A.D.2d 772 (3rd Dep't 1997) ........................................................................................... 14 Lehman Bros. v. Hughes, Hubbard & Reed, 92 NY2d 1014 (1998)………………………………………… 13, 15-17, 19, 21, 23-25 Maki v. Grenda, 224 A.D.2d 996 (4th Dept. 1996)……………..17, 22, 29-30 Matter of Eckart's Estate, 39 N.Y.2d 493, 499 (1976) ………….…….18, 24 Morris Investors, Inc. v. Comm'r of Finance, 69 N.Y.2d 933, 935 (1987)……………………………………………...8, 21 People ex rel. Nolan v. Prendergast, 88 Misc. 307, 308-09 (Sup. Ct. 1914) aff'd, 169 A.D. 959, (2nd Dept. 1915)…………........7, 12, 13 People v. Bing, 76 N.Y.2d 331, 337-38 (1999)………………….……..14, 18 ii iii People v. Taylor, 9 N.Y.3d 129, 148 (2007 (citing Payne v. Tennessee, 501 U.S. 808, 827(1991)………………………… ……14, 18, 24 Robinson Motor Xpress, Inc., v. HSBC Bank, USA, 37 A.D.3d 117, 123 (2nd Dep’t 2006) ................................................................................................. 25 Stortecky v. Mazzone, 591 N.Y.S.2d 304 (Sup.Ct. 1992), aff'd as modified on other grounds, 85 N.Y.2d 518 (1995) ..................................................... 14 Winston v. Freshwater Wetlands Appeals Bd., 224 A.D.2d 160, 164 (2nd Dept. 1996) .................................................................................................. ..8 Wooster v. Forty-Second St. & Grand St. Ferry R. Co., 71 N.Y. 471 (1877)……………………………………….…6, 10, 11, 12, 13 Rules, Statues & Regulations Code of Civil Procedure § 405………………………………………6, 12, 13 Code of Procedure §104……………………………………….……...6,10-11 CPLR § 205(a) ………………………………………1-4, 6-12, 16-24, 28,30 CPLR § 3211(a)(4) ……………………………………….…………... 26-29 CPLR §5602(a)(1)(i) .................................................................................... ..1 Civil Practice Act § 23 (1920) ..................................................................... ..7 Fed. Rule of App. Proc. 27 .......................................................................... ..4 PRELIMINARY STATEMENT This brief is respectfully submitted in support of Plaintiff- Appellant’s appeal from a decision from the Appellate Division, Fourth Department, affirming a decision and order from Onondaga County Supreme Court granting a motion to dismiss. The Supreme Court decision and order, dismissing Plaintiff-Appellant’s claim, was entered on November 29, 2012. A Notice of Appeal was timely filed on December 10, 2012. The Appellate Division affirmed without written decision on January 3, 2014. A motion to the Court of Appeals seeking permission to appeal was filed on or about February 26, 2014. The Court of Appeals granted the motion and issued an order on May 8, 2014. This brief is timely filed by July 8, 2014. JURISDICTION This Court has jurisdiction over this appeal pursuant to CPLR §5602(a)(1)(i). QUESTIONS PRESENTED 1) Is a plaintiff required to litigate an appeal as of right to its terminus before invoking the grace period of CPLR §205(a) and filing an action in state court, or can that plaintiff choose to file the state court complaint during the pendency of the appeal and discontinue the appeal? Brief Answer: The longstanding history and interpretation of {W0249934.1}1 CPLR §205(a) gives a diligent plaintiff the right to pursue an appeal to its terminus or discontinue that appeal in order to pursue a valid state cause of action. A plaintiff is not required to pursue an appeal to its end only to preserve an otherwise legitimate and timely state cause of action. 2) How is it determined when a plaintiff has exhausted his or her rights to litigation, thereby beginning the six-month time frame of CPLR 205(a)? Brief Answer: The logical and reasonable application of “exhaust rights to litigation” as put forth by the Court of Appeals is the actual time when a plaintiff affirmatively acts to end a particular course of litigation, rather than looking backwards from that time to an earlier event in the litigation. 3) Is judicial economy better served by requiring a plaintiff to pursue an appeal until a decision is issued by the court before invoking CPLR 205(a) rights or by allowing that plaintiff to discontinue the appeal before a decision and move her case pursuant to CPLR 205(a)? Brief Answer: The interests of judicial economy, including the court’s time, attorney time, litigation costs and expenses, and attorney fees, all point towards allowing a plaintiff to discontinue an appeal and move a case pursuant to CPLR 205(a) during the pendency of the appeal. STATEMENT OF FACTS and PROCEDURAL HISTORY Plaintiff-Appellant submits the following for this Court’s consideration as a statement of facts and procedural history: The procedural history in this case demonstrates an active course of litigation by the appellant and clearly establishes that the litigation was never terminated for longer than the six-month grace period provided by CPLR §205(a). On or about June 9, 2008, Plaintiff-Appellant filed a federal {W0249934.1}2 complaint in the Northern District of New York alleging various federal and New York State claims. On September 30, 2011, the District Court dismissed Plaintiff-Appellant’s federal causes of action and declined to exercise jurisdiction over the New York State law claims. The Plaintiff- Appellant thereafter filed a motion for reconsideration that was denied by the District Court, followed by a Notice of Appeal to appeal the District Court summary judgment decision to the Second Circuit Court of Appeals. Plaintiff-Appellant continued to actively litigate her claims and pursue the appeal with the submission of statements in support of the appeal, Forms “A,” “B” and “D,” on March 7 and 8, 2012. On March 21, 2012, the Second Circuit issued an Order for a pre-brief conference to be held on May 4, 2012. On April 30, 2012, the Second Circuit issued an Order giving Plaintiff-Appellant until June 11, 2012 to file her brief. On May 4, 2012, the parties participated in the pre-brief conference. After the pre-briefing conference, Plaintiff-Appellant considered continuing to pursue her appeal with the Second Circuit, or transfer her case pursuant to CPLR 205(a) to the New York State Supreme Court with a state court complaint alleging only the state law violations and voluntarily discontinue her federal appeal. The Plaintiff-Appellant ultimately decided to pursue only her state law claims so she did not file a brief with the Second Circuit by June 11, 2012. Instead, {W0249934.1}3 she filed her state law claims on or about June 25, 2012. On June 26, 2012, the Second Circuit issued an Order giving the Plaintiff-Appellant until July 11, 2012, to file her brief, and as such her federal rights had not yet terminated. Ultimately, the federal appeal was formally dismissed by Order of the Second Circuit dated August 28, 2012, retroactively made effective July 10, 2012. That action of the Second Circuit finally terminated the plaintiff’s federal action, and exhausted her rights to her federal litigation. As such, Plaintiff-Appellant filed her state court claim before the 205(a) time limit ever began to run. Throughout these appellate proceedings, Defendant-Respondent never filed any motions pursuant to Fed. Rule of App. Proc. 27 challenging the Plaintiff-Appellant’s right to appeal. Defendant-Respondent filed a motion to dismiss the state court action on or about August 31, 2012, on grounds that the Plaintiff-Appellant filed her complaint beyond the time allowed by CPLR 205(a) because it was not filed within six months of the federal District Court’s summary judgment decision. The Plaintiff-Appellant argued in the courts below that the federal appeal of the summary judgment decision extended the time for CPLR 205(a) to begin to run, an argument clearly supported by authority from the Court of Appeals. The Defendant-Respondent argued that because the {W0249934.1}4 Plaintiff-Appellant voluntarily discontinued her appeal before the Second Circuit reached a decision on it, the time from when the CPLR 205(a) grace period begins to run reverts back the date of the District Court’s summary judgment motion decision on September 30, 2011. In other words, the Defendant-Respondent argued that the Plaintiff-Appellant had to either file her state complaint within six months of the District Court’s decision on the motion for summary judgment, or within six months after a final decision on the appeal to the Second Circuit, but could not file it in between those two events during the pendency of the federal appeal. The Defendant-Respondent cited no appellate authority to support that argument. In fact, the Courts below relied on no appellate authority in rejecting the Plaintiff-Appellant’s argument on this critical point and dismissing the complaint. Rather, the Supreme Court cited to a New York County Slip Opinion cited by Defendant-Respondent, a case in which the plaintiff therein never appealed the federal court’s dismissal of the New York State claims, but only the federal claims. The Supreme Court’s Decision on Defendant-Respondent’s motion to dismiss was entered on November 26, 2012. The Plaintiff- Respondent thereafter timely filed a Notice of Appeal on December 10, 2012. Argument was heard before the Appellate Division Fourth {W0249934.1}5 Department on December 12, 2013, and the Appellate Division unanimously affirmed without a written decision on January 3, 2014. ARGUMENT POINT I CPLR 205 (a) Is To Be Liberally Construed A. History of CPLR 205(a) CPLR 205(a) has been a part of New York law in one form or another for over 160 years since it was originally enacted in §104 of the Code of Procedure (Field Code) in 1848. Its purpose was simple, to provide a mechanism in which a timely cause of action can be saved when it is terminated on grounds other than a failure to prosecute or a fatal defect in the merits of the underlying claim. See generally, Wooster v. Forty-Second St. & Grand St. Ferry R. Co., 71 N.Y. 471 (1877). CPLR 205(a)’s longstanding history can be seen in its various incarnations under New York law. Under Code of Civil Procedure §405 (1876): If an action is commenced within the time limited therefore, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same {W0249934.1}6 cause, after the expiration of the time so limited, and within one year after such a reversal or termination. People ex rel. Nolan v. Prendergast, 88 Misc. 307, 308-09 (Sup. Ct. 1914) aff'd, 169 A.D. 959, (2nd Dept. 1915). This language is mirrored under Civil Practice Act §23 (1920): If an action is commenced within the time limited therefore, and a judgment therein is reversed on appeal without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff…may commence…a new action for the same cause after the expiration of the time so limited and within one year after such a reversal or termination. People ex rel. Lehigh Val. Ry. Co. v. Clover, 174 Misc. 888, 889 (Sup. Ct. 1940). Aside from reducing the tolling period from one year to six months, CPLR 205(a) has had little to no substantive changes since its enactment in 1848. CPLR §205(a) reads in pertinent part: (a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service {W0249934.1}7 upon defendant is effected within such six-month period. C.P.L.R. §205(a) The point of illustrating the history of §205(a) is in part to demonstrate the longstanding purpose of the statute: preserving a plaintiff’s right to pursue legitimate timely claims. In achieving this purpose, the statute is to be construed liberally. B. CPLR 205(a) is to be Liberally Construed It is important to note that the purpose of CPLR §205(a) is to “protect [] the right of litigants who have given timely notice of their claims” and “its broad and liberal purpose is not to be frittered away by any narrow construction.” Morris Investors, Inc. v. Comm'r of Finance, 69 N.Y.2d 933, 935 (1987) (internal citations omitted). The idea is that “a diligent litigant who commenced a timely action but who failed on some generally technical ground, deserves an adjudication on the merits” and “[c]onsidering that CPLR 205(a) is not available to those specified as undeserving, the statute has been interpreted so as to allow the litigant to enjoy its core purpose, a genuine bite at the apple.” Winston v. Freshwater Wetlands Appeals Bd., 224 A.D.2d 160, 164 (2nd Dept. 1996) (internal citations omitted). The liberal construction and application of §205(a) protects against technicalities {W0249934.1}8 determining the outcomes of cases and ensures that a plaintiff with valid claims has those claims determined on the merits. The Plaintiff-Appellant’s state negligence claims were not determined on the merits in the federal action; rather they were dismissed for lack of jurisdiction after the federal constitutional claims were dismissed on the merits. Plaintiff-Appellant appealed the dismissal of the federal and state claims in her federal appeal. POINT II CPLR 205(A) Has Long Been Interpreted As Preserving Legitimate Causes Of Action While Promoting Judicial Economy CPLR §205(a), along with its previous incarnations, have long stood for the principle that a plaintiff should not be forced to bring concurrent causes of action in two judicial forums simultaneously solely to preserve a claim from being barred by the statute of limitations. Rather, judicial economy and the interests of justice logically and reasonably hold that a plaintiff is free to bring a cause of action at the termination of an appeal, whether the termination is due to a decision on the appeal against the plaintiff or by way of the plaintiff discontinuing the appeal voluntarily. This logically and reasonably preserves the time and resources of all parties to the action, as well as the judiciary. However, the Defendant-Respondent would have you believe that once a plaintiff decides to file an appeal the plaintiff is {W0249934.1}9 “handcuffed” to follow it all the way through to a decision from the appellate court instead of being permitted to move the cause of action from federal to state court at some earlier time. If this were the law, it would serve no interests of justice and contradict the foundations of judicial economy. This issue was addressed early in Wooster v. Forty-Second St. & Grand St. Ferry R. Co., 71 N.Y. 471 (1877) when this Court had to interpret §104 of the Code of Procedure, the precursor to CPLR §205(a). Wooster involved a plaintiff who had brought a claim in the Marine Court, which ultimately dismissed the claim. Id. at 472. The plaintiff appealed the dismissal of his claim and the dismissal was reversed by the Court of Common Pleas. Id. The defendant appealed to the Court of Appeals, which affirmed the reversal. Id. After the holding of the Court of Appeals, the plaintiff sought to bring his second action, which was based on the underlying facts and events of the first action. Id. The defendant objected, claiming that §104 required the plaintiff to bring his cause of action within a year after the reversal by the Court of Common Pleas, and therefore his second cause of action was untimely. Id. The issue before the Court was whether the plaintiff was bound to bring his second action within a year after the reversal by the Court of Common Pleas, or could he wait for the final {W0249934.1}10 determination of the defendant’s appeal to the Court of Appeals and bring his second action within a year of that final determination. Id. at 473. The Court of Appeals, interpreting §104, found in favor of the plaintiff and noted: “…[I]t would be an inconvenient construction [of §104] to hold that the plaintiff, in a case like this, must bring a second action while the appeal to this court is pending, in order to save his cause of action from being barred by the statute. The judgment of this court might, and in many cases would, determine the right of the parties in the controversy, and prevent further costs and litigation.” Wooster v. Forty-Second St. & Grand St. Ferry R. Co., 71 N.Y. 471, 473 (1877). Like Wooster, requiring the Plaintiff-Appellant in the instant action to file a second action in state court within six months of the District Court’s summary judgment decision while her federal appeal was pending would contradict the purpose of CPLR 205(a), which is to provide a plaintiff up to six months after the termination of a claim to file anew, and would unnecessarily increase costs and litigation. Wooster is an example of this Court’s acknowledging the liberal interpretation and construction of §104 (effectively §205) and preserving the right of a plaintiff to file a cause of action after his or her appellate remedies have been exhausted. The purpose of allowing the second action to be filed after the exhaustion of appellate remedies, as opposed to during the pendency of the {W0249934.1}11 appeal, is one of judicial economy. But in the same vein, judicial economy supports the Plaintiff-Appellant’s argument that a plaintiff who is entitled to file a claim in state court after a federal appeal of right is exhausted could instead choose to file a claim in state court during the pendency of the federal appeal and voluntarily dismiss the appeal. There is no logic in the Defendant-Respondents’ position that a plaintiff who files a claim in state court after the termination of his federal appeal is timely, but a plaintiff who, in the interest of time and judicial economy, discontinues the federal appeal and instead pursues state law claims in state court before the federal appeal has been terminated is untimely. Such an interpretation would force plaintiffs, defendants and the courts to expend vast amounts of time and resources in pursuing the appeal, solely to preserve the plaintiff’s right to bring state law claims in state court. This interpretation cannot result from a liberal construction of a statute, which exists to preserve the right to pursue valid and timely claims. Nor can it result from a basic, logical and reasonable interpretation of the basis of CPLR §205(a). The second incarnation of CPLR §205, Code of Civil Procedure §405, supports the rationale of Wooster. The facts in People ex rel. Nolan v. Prendergast, 88 Misc. 307, 308-09 (Sup. Ct. 1914) aff'd, 169 A.D. 959, (2nd {W0249934.1}12 Dept. 1915), are strikingly similar to that of Wooster. The plaintiff in Nolan filed a cause of action that was dismissed by the trial court. The Appellate Division overruled the dismissal of the plaintiff’s complaint. This judgment was affirmed by this Court and within one year of that the plaintiff brought another cause of action based on the same facts and occurrences on which the initial cause of action had been based. Relying on Wooster, the Nolan Court noted: It seems to be conceded by the city that the period of a year provided for by section 405 of the Civil Code began to run on the rendition of the judgment of affirmance by the Court of Appeals, and not upon the rendition of the judgment of the Appellate Division (which was the first judgment rendered in the case). This view seems to be supported by Wooster v. Forty- Second St. & Grand St. Ferry R. Co., 71 N.Y. 471, (1877). The rule of that case, as applied to the case at bar, requires the court to hold that the action was terminated by the judgment of the Court of Appeals, rather than by the judgment of the Appellate Division. People ex rel. Nolan v. Prendergast, 88 Misc. 307, 309 (Sup. Ct. 1914) aff'd, 169 A.D. 959, (2nd Dept. 1915). Both Nolan and Wooster stand for the same proposition that a plaintiff is not required to bring a concurrent claim during the pendency of an appeal. Implicit in these decisions, and the statute, is the right of a plaintiff to forego a pending federal appeal in order to pursue a valid state court claim, rather than litigate both at the same time. This rationale is implicit in the Court of {W0249934.1}13 Appeals decision in Lehman Bros., Inc. v. Hughes Hubbard & Reed, L.L.P., 92 N.Y.2d 1014 (1998). POINT III The Decisions Of The Courts Below Contradict The Court Of Appeals’ Holding That Termination Pursuant To CPLR 205(a) Occurs When A Plaintiff Has Exhausted Her Rights To The Litigation A. Court of Appeals Precedent Under Doctrine of Stare Decisis The doctrine of stare decisis prescribes that once a court has rendered a decision on a legal issue, subsequent cases within the same jurisdiction with similar legal issues “should be decided in conformity with the earlier decision.” People v. Bing, 76 N.Y.2d 331, 337-38 (1999). This standard has been continuously regarded as a fundamental and controlling legal principle because it “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” People v. Taylor, 9 N.Y.3d 129, 148 (2007 (citing Payne v. Tennessee, 501 U.S. 808, 827 (1991)). Based on the doctrine of stare decisis, a lower court is obligated to apply and follow the rules enunciated by a higher court to which an appeal would be heard, if the purpose and reason for the rules apply to the factual and legal issues involved. See, e.g., Hanover Ins. Co. v. U.W. Marx Inc., 238 A.D.2d 772 (3rd Dep't 1997) (a {W0249934.1}14 trial court was required to follow a prior appellate decision); Stortecky v. Mazzone, 591 N.Y.S.2d 304 (Sup.Ct. 1992), aff'd as modified on other grounds, 85 N.Y.2d 518 (1995) (the Supreme Court in the Third Department is bound to adhere to precedent holdings of the Appellate Division, Third Department, and the Court of Appeals); 81 Franklin Co. v. Ginaccini, 563 N.Y.S.2d 977 (N.Y. City Civ. Ct. 1990) (a court is bound by the judicial construction of a statute rendered by the court to which an appeal from its own decision would lie). 1. The Court of Appeals’ Decision in Lehman Brothers In Lehman Bros. v. Hughes, Hubbard & Reed, 92 NY2d 1014 (1998), plaintiffs commenced an action in a Texas District Court alleging legal malpractice on the part its attorneys Hughes, Hubbard & Reed (a New York based partnership). Id. at 1015-16. On December 16, 1992, the trial court dismissed the claim on the grounds of a lack of personal jurisdiction. Id. Plaintiffs, as entitled by right, appealed the dismissal to the Texas intermediate appellate court, the Texas State Court of Appeals, which affirmed the dismissal on June 1, 1995. Id. at 1016. Plaintiffs' subsequent discretionary endeavors were all denied. (Request for rehearing denied on July 13, 1995; request for discretionary review by the Texas Supreme Court denied on November 22, 1995; request for rehearing to the Texas Supreme {W0249934.1}15 Court denied on January 11, 1996; Petition to the United States Supreme Court for writ of certiorari denied on June 10, 1996.) Thereafter, the Plaintiffs filed the same legal malpractice claim in New York on July 11, 1996. Lehman Bros. 92 N.Y.2d at 1016. In determining the date when the statutory six-month period began, the Court of Appeals held that: "[W]e... reject[] the argument that a party could forestall the commencement of the statutory six- month period merely by continuing to pursue discretionary appellate review... [as] it is not the purpose of CPLR 205(a) to permit a party to continually extend the statutory period by seeking additional discretionary appellate review. By contrast, where an appeal is taken as a matter of right, or where discretionary appellate review is granted on the merits, the six-month period does not commence since termination of the prior action has not yet occurred." Lehman Bros, 92 N.Y.2d 1014, 1016, (1998) (emphasis added). In applying this principle, the Court noted that the prior action was terminated within the meaning of CPLR 205(a) on June 1, 1995, "the date that Plaintiffs sole nondiscretionary... appeal was exhausted." Id. at 1017 (emphasis added.). As a result, the statutory six-month period began to run from that date and the fact that plaintiff chose to pursue only the avenue of further discretionary appeals "did not forestall commencement of the statutory six-month period." Id. {W0249934.1}16 2. Lehman Bros. Ruling is Controlling in this Matter Lehman Bros. is controlling in the instant matter. Plaintiff- Appellant filed a Notice of Appeal in federal court on January 27, 2012. This was an appeal of right that was terminated on July 11, 2012. Therefore, based on this Court’s decision in Lehman Bros., the six-month window began to run from that date. This gave Plaintiff-Appellant until January 11, 2013, to file the instant claim in state court. Plaintiff-Appellant filed her state court action on June 25, 2012, before the termination of the federal appeal and well before the ending of the six-month grace period afforded by CPLR 205(a). This interpretation of when a prior action is considered “terminated” within the meaning of CPL 205(a) was in fact the law of the Fourth Department before the Court of Appeals affirmed it in Lehman Bros. See, Maki v. Grenda, 224 A.D.2d 996 (4th Dep’t 1996) (holding that under CPLR 205(a), "the point of termination is considered generally to be the point where a plaintiff has exhausted its rights with respect to the litigation"). The issue on point in this matter is clearly one that Lehman Bros. applies to, and Plaintiff-Appellant’s actions follow its ruling. Therefore, this matter should be decided in conformity with this Court’s prior decision. B. Precedent from Lehman Bros. Should Prevail {W0249934.1}17 It is well established by this Court that “the doctrine of stare decisis should not be departed from, except under compelling circumstances.” Cenven, Inc. v. Bethlehem Steel Corp., 41 N.Y.2d 842, 843 (1977). While the law created by a court’s ruling may be rebuttable, such a challenge can only be made in exceptional cases. For example, a new ruling by the court may be appropriate where a prior ruling has become unworkable, misunderstood, misapplied, contrary to reason, or has created more uncertainties than before. See Bing, 76 N.Y.2d at 347; People v. Taylor, 9 N.Y.3d 129, 149 (2007); Matter of Eckart's Estate, 39 N.Y.2d 493, 499 (1976). In the simplest terms, the established precedent prevails unless there is a compelling reason to depart from it. 1. Defendant Improperly Relies on Dinerman v. Sutton a. Dinerman v. Sutton There has been confusion regarding the case of Dinerman v. Sutton, 45 Misc.2d 791 (Sup. Ct. 1965). First, that a plaintiff can abuse the remedies of CPLR 205(a) merely by filing a notice of appeal in order to extend the life of his claim. Second, that the grace period afforded by CPLR 205(a) is only applicable, "from the date of determination of an appeal on the merits." Dinerman, 45 Misc.2d at 792. The futility of these concerns and {W0249934.1}18 the resulting inapplicability of this near 50 year old, non-binding precedent to the instant action are addressed below. b. Concerns of abuse are misguided and misplaced At the trial level, Defendant-Respondent cited Dinerman for the proposition that applying CPLR 205(a) "…to a dismissed appeal would permit a plaintiff to extend his own time to commence a new action in every case by merely filing a notice of appeal." Id at 792. While the concern expressed in Dinerman, and relied on by the Defendant-Respondent herein, was valid at the time, it is ultimately moot today considering it was addressed by the Court of Appeals over 30 years ago in Cohoes Hous. Authority v. Ippoliti-Lutz, Inc., 49 NY2d 961 (1980), and reaffirmed in Lehman Bros. The Court of Appeals explicitly stated that: "[W]e... reject[] the argument that a party could forestall the commencement of the statutory six- month period merely by continuing to pursue discretionary appellate review... By contrast, where an appeal is taken as a matter of right, or where discretionary appellate review is granted on the merits, the six-month period does not commence since termination of the prior action has not yet occurred." Lehman Bros., 92 N.Y.2d 1014, 1016 (1998) (emphasis added). Lehman Bros. is clear that a party cannot avail itself of the benefits of §205(a) merely by filing a notice of appeal, unless either it is an {W0249934.1}19 appeal of right or a discretionary appeal for which leave has been granted. Apart from these exceptions, any attempt to buy time by filing a notice of appeal would prove fruitless. In the instant matter1, Plaintiff-Appellant invoked her right to pursue her appeal of right, and therefore the six-month period did not commence since termination of the prior action had yet to occur. Rather, termination occurred upon exhaustion of Plaintiff-Appellant's rights with respect to the litigation. c. There is no requirement of a determination on the merits Statutory interpretation requires that a reviewing court “...begin with the plain meaning of the words used in the statute [and in] giving effect to these words,” the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle." Council of City of New York v. Giuliani, 93 N.Y.2d 60, 68-69, 1999) (internal citations and quotations omitted). It has already been mentioned above that the purpose of CPLR 205(a) "is to protect [] the 1 Petitioner-Appellant's invoking of her appeal of right was not a situation where a party feigned intent to file an appeal merely to extend the statute of limitations on a potential claim. Rather, Petitioner-Appellant did engage in a course of active appellate litigation evidenced by the filings (and refilling) of required forms, the filing the notice of appearance and certificate of good standing, participation in multiple judicial conferences with opposing counsel, and opposing counsel's joint-participation with Plaintiff- Appellant in the appellate proceedings. Petitioner-Appellant's filing of a notice of appeal was simply not a ruse, as Defendant-Respondent implied in its papers below. {W0249934.1}20 right of litigants who have given timely notice of their claims" and "its broad and liberal purpose is not to be frittered away by any narrow construction." Morris Investors, Inc. v. Comm'r of Finance, 69 N.Y.2d 933,935(1987) (internal citations omitted). The point of issue that Dinerman raises is the claim that the "grace period of CPLR 205(a) commences from the date of determination of an appeal on the merits." Dinerman, 45 Misc.2d at 792. Although the Dinerman court draws that conclusion, and the Defendant-Respondent relies on it, this language, there has been no appellate authority agreeing with that interpretation of § 205(a). No appellate court has held that § 205(a) requires a plaintiff to file the state complaint within six months of the trial court's dismissal of the action or within six months of a determination of an appeal on the merits, but not in between those events during the pendency of the appeal. On the contrary, the consistent holding of the Court of Appeals, and the Fourth Department, has been that "termination of an action" refers to the date the plaintiff's rights with respect to the litigation are exhausted. (See Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, p.e, 5 N.Y.3d 514,519 (2005) (stating that "[for the purposes of [CPLR §205(a)], 'termination' of the prior action occurs when appeals of right are exhausted"); Lehman Bros, 92 N.Y.2d 1014, 1017 {W0249934.1}21 (1998) (holding that the plaintiff's prior action was "terminated within the meaning of CPLR 205(a) as of…the date [the] plaintiff's sole nondiscretionary...appeal was exhausted"); Maki v. Grenda, 224 AD.2d 996 (4th Dept. 1996) (holding that under CPLR 205(a), "the point of termination is considered generally to be the point where a plaintiff has exhausted its rights with respect to the litigation"). Aside from the appellate authority on point, the language of the statute itself is instructive. Importantly, the statute reads "termination" as opposed to "dismissal," and the reason for the termination, other than those explicitly stated in the statute, is irrelevant.2 Rather, only the date of the termination is relevant. When this interpretation is combined with this Court's and the Fourth Department's use of the word "exhaustion", there is credence in the position that the plaintiff is the party that determines when he or she has exhausted his or her rights to the litigation. For example, if a plaintiff’s cause of action is dismissed and the plaintiff opts not to pursue a discretionary appeal within the applicable statute of limitations, then it would be fair to say that the plaintiff has exhausted his rights to the litigation and that the date of termination is the 2 It is important to note that despite the various incarnations of §205(a), in the 160+ years of its existence, the word "termination" has always been used as opposed to "dismissal". There is a presumption that this was intentionally done by the legislature and absent authority to the contrary this presumption should not be disturbed. {W0249934.1}22 initial dismissal date. On the other hand, a plaintiff who invokes his right to pursue his appeal of right has not, as the Court of Appeals held, exhausted his rights to the litigation" ... since termination of the prior action has not yet occurred." Lehman Bros. at 1016. There is no language in the statute, or in any appellate decision, that requires the appeal of right to be determined on the merits. Furthermore, there is no controlling authority that supports the Defendant-Respondent's position that the failure of a plaintiff to brief and argue an appeal and receive a decision from the Court results in the decision on the underlying motion for summary judgment being the accrual date for purposes of CPLR §205(a). In the instant matter, the Plaintiff-Appellant filed her state court claims during the pendency of her federal appeal, appealing the dismissal of both the federal and state court claims in their entirety. As the action had not been yet been terminated within the meaning of §205(a), the six-month period had yet to commence and Plaintiff-Appellant's state court claims were timely. 2. Defendant-Respondent has Failed to Argue Why Lehman Bros. Should No Longer Be Regarded as Governing Law, or Why Dinerman Should Govern this Matter The Court of Appeals will only consider changing or abolishing an established rule once a party has demonstrated that the current rule or {W0249934.1}23 interpretation is undoubtedly erroneous, unworkable, and that the adoption of a different rule will better serve the present circumstances. See, e.g., Eckart, 39 N.Y.2d at 500. In this matter, Defendant-Respondent has made no argument as to why Lehman Bros. should not be controlling in this matter, or that it should no longer be considered the law today. Defendant- Respondent relies on an unsupported and non-controlling New York Supreme Court case that far predates this Court’s decision in Lehman Bros. No reasoning or basis has been offered as to why its primary supporting case should serve as the guiding rule today in this matter over this Court’s own decision. In other words, Defendant-Respondent has failed to show why the doctrine of stare decisis should be disregarded here. Furthermore, the policies underlying the doctrine of stare decisis, “which include stability, predictability, respect for our predecessors and the preservation of public confidence in the courts,” are strongest where the Court is asked to change its mind and disregard its established precedent in situations where no significant changes have occurred that would justify such a decision. See People v. Taylor, 9 N.Y.3d 129, 156 (2007). No circumstances or law have changed since the Lehman Bros. decision that would make it unworkable or contrary to policy today. CPLR 205(a)’s statutory scheme, as well as this Court’s interests in judicial economy and {W0249934.1}24 fairness, remain the same just as they were then, and continue to be best served by the decision from Lehman Bros. These interests also justify the application of this Court’s previous ruling to this matter. As a result, Lehman Bros. has unquestionably remained the law since its decision, and should continue to serve as the governing law based on the foregoing reasons articulated by this very Court. C. Lower Courts Failed In Their Obligation To Follow This Court’s Legal Precedent Trial courts and lower appellate courts within the state of New York are bound to adhere to the legal precedent issued by the Court of Appeals. See, e.g., Robinson Motor Xpress, Inc., v. HSBC Bank, USA, 37 A.D.3d 117, 123 (2nd Dep’t 2006) (stating “we are…obligated to follow the determinations of the Court of Appeals”). Despite the clear and governing precedent issued by this Court, the lower courts that have heard this case failed to apply or even consider the law from Lehman Bros. Without providing any sufficient reasoning or justification for their decisions, these courts erroneously rejected applying Lehman Bros. and relied on Defendant’s non-binding state supreme court case. These courts were wrong in applying Dinerman instead of Lehman Bros., and are attempting to make this outdated case the controlling law today. The law and concerns these courts have applied contradicts what this Court has already addressed, and {W0249934.1}25 the law that previous cases have relied on. Because Defendant has failed to argue any reason why Lehman Bros. should not be applied to this matter, or that it should no longer be considered reliable law, the Supreme Court and Appellate Division were required to decide this matter in conformity. POINT IV Decisions of The Courts Below Would Compel Plaintiffs To Litigate Identical Claims In Different Forums And Subject Them To Dismissal During oral argument at the trial Court below, the Court asked the Defendant-Respondent whether there was anything that precluded the Plaintiff-Appellant from filing her state court action within six months of the District Court’s decision on the motion for summary judgment, to which the Defendant-Respondent replied “no.” Upon being heard, the Plaintiff- Appellant addressed that inquiry by the Court by stating “yes,” in fact there is something that precluded the Plaintiff-Appellant from filing her state claims within six months of the District Court decision. That would have been the pending federal appeal and CPLR §3211(a)(4), which reads in pertinent part: A party may move for judgment dismissing one or more causes of action asserted against him on the ground that…there is another action pending between the same parties for the same cause of action in a court of any state or the United States…. {W0249934.1}26 If the Plaintiff-Appellant filed her state complaint within six months of the District Court’s summary judgment motion decision, which would have been on or before March 30, 2012, then the complaint would have been subject to a motion to dismiss under CPLR 3211(a)(4) for having two concurrent claims being litigated in two judicial forums. Although the Court is not required to dismiss the cause of action, the Court may very well elect to do so out of concern for judicial economy, as the plaintiff would essentially be litigating two causes of action arising out of the same controversy at the same time. Also, the procedural rules of the other forum in which the claim is pending may also permit the Court to dismiss the action there. However, the plaintiff has the ability to choose whether or not to pursue her appellate remedies or forego those remedies in order to bring her second action based on the same underlying events. (See American Exp. Travel Related Services Co., Inc. v. Zalmen Reiss & Associates, Inc., 31 Misc.3d 1226(A) (Sup. Ct. 2011) (holding that a plaintiff who, while appealing dismissal of its first action, brought a second action alleging the same underlying facts, is subject to a motion to dismiss on the second action pursuant to CPLR 3211(a)(4) as the second action is unnecessarily duplicative; and in holding so entered a stay of entry of an order of dismissal for the second action for thirty days in order to permit {W0249934.1}27 plaintiff to choose whether to proceed with the appeal for the first action or withdraw the pending appeal and proceed with the second action). In the instant case, Plaintiff-Appellant initially sought to appeal her federal action in its entirety. In March 2012, the Plaintiff-Appellant was in the process of filing required forms and appendixes with the Second Circuit Court of Appeals and had a pre-brief conference scheduled for May 4, 2012. If her state court complaint was filed at that time an answer from Defendant- Respondent would have been due well before the pre-brief conference had even been held. Clearly, the Plaintiff-Appellant would have been litigating the same cause of action in two different judicial forums at the same time and would have properly been subject to a CPLR 3211(a)(4) motion to dismiss. During the pendency of her appeal, Plaintiff-Appellant chose to pursue her claims in state court instead of remaining in a federal forum. Plaintiff-Appellant then allowed the federal appeal to default as she had chosen to actively litigate her claims in state court. To require Plaintiff- Appellant to continue her litigation in federal court solely to preserve her state court claims is devoid of any logic or reason in law or judicial economy. Also, interpreting §205(a) as requiring a plaintiff to file a concurrent cause of action subjects the plaintiff to a motion to dismiss under {W0249934.1}28 CPLR §3211(a)(4), which wholly contradicts the liberal interpretation of §205(a) and defies logic of procedural law and judicial economy. While it is true that the Plaintiff-Appellant did in fact file her state complaint before the federal action was terminated, she did so on June 25, 2012, which was in between the June 11, 2012 initial deadline to file her federal appellate brief and the July 11, 2012 extended deadline to file her federal appellate brief, July 11, 2012. As such, it was clear to the Plaintiff- Respondent that the federal action would be terminated at that time and her state complaint would not be subject to a CPLR 3211(a)(4) motion to dismiss. POINT V The Appellate Division Did Not Follow Its Own Reasoning In Its Previous Maki V. Grenda Decision In Maki v. Grenda, 224 A.D.2d 996 (4th Dept. 1996) the federal District Court dismissed the plaintiff’s state and federal claims, but gave the plaintiff 30 days to replead her federal RICO claims and have all claims started anew. Id. at 997. The plaintiff chose to not do so. Thereafter, the plaintiff filed a complaint in state court for state law claims only, pursuant to CPLR 205(a). Id. The state complaint was filed over six months from the date the federal complaint was dismissed, but less than six months from the {W0249934.1}29 deadline the plaintiff was given to replead the entire complaint, in other words between six months from the first date and six months from the second date. The defendant moved to dismiss on grounds that the federal action terminated the date the federal complaint was dismissed, which is the argument of the Defendant-Respondent in the instant matter, and therefore the state complaint was filed beyond the six months permitted by CPLR 205(a). The plaintiff argued that the action terminated on the date she failed to replead, 30 days after the federal complaint was dismissed and the court gave her until to replead the federal complaint. The Fourth Department agreed with the plaintiff, holding that termination is when a plaintiff exhausts her rights to the litigation, and that occurred when the plaintiff in Maki did not file a new complaint by the deadline provided by the federal court. Id. This is completely analogous to the instant matter in that Plaintiff- Respondent had until July 10, 2012, to file her appellate brief under the federal rules of appellate procedure and Order of the Second Circuit. When she did not file her brief on July 10, 2012, that was the date she exhausted her rights to the litigation, as in Maki. This reasoning is clear, unambiguous and should be applied to the instant matter with a decision that finds that the Plaintiff-Appellant timely filed her state court claims. {W0249934.1}30