Sunday, February 8, 2009

New York Court of Appeals: The New Chief's Judicial Record (Part 3: His Civil Opinions)

The last post in this series on the New York Court Watcher looked at Chief Judge Nominee Jonathan Lippman's criminal opinions. There were 4 in all. He wrote 3 while on the Appellate Division, and 1 (a dissent) while on "Supreme Court" serving on an Appellate Term panel. As we saw, Lippman took positions more favorable to the accused in each of those cases. That observation may not justify a definitive conclusion. Not with so few opinions. But it certainly provides an indication, a clue, maybe even a rebuttable presumption. And those 4 opinions revealed some other things as well. (See New York Court of Appeals: The New Chief's Judicial Record (Part 2: His Criminal Opinions), Jan. 28, 2009.)

In this post we'll take a look at Lippman's opinions in civil cases. We'll focus on those non-criminal opinions he wrote as an appellate judge--while on the Appellate Division (as Presiding Justice of the First Department, which sits in Manhattan) and on an Appellate Term panel (when a trial judge on "Supreme Court" Justice in Westchester County). Of the 14 total opinions Lippman has written as of this date while on the AD, 11 were non-criminal. Of those 11, 9 were written as opinions for the court, 2 were written in dissent. Of his 2 opinions while on AT, 1 was non-criminal, and it was a dissent. That's a total of 12 civil opinions. Let's look quickly at several of these, and see what they tell us. Following a brief rundown of the opinions, I'll offer some observations.

Braddock v. Braddock (AD, Jan. 6, 2009)--Lippman wrote a dissent against a 3 - 2 majority, arguing that the court should have dismissed a fraud complaint brought by a former investment banker. According to Lippman, there was no allegation that the defendant, who had persuaded the plaintiff to join his high risk venture, had done so with a deliberate misrepresentation.

Castle Village Owners Corp. v. Greater NY Mutual Ins. Co. (AD, Dec. 2, 2008)--Lippman wrote for a unanimous court, refusing to dismiss a complaint for engineering malpractice. He rejected the engineers' claim that the complaint was insufficiently specific.

Gotay v. Breitbart (AD, Nov. 6, 2008)--Lippman wrote the opinion for a 3 - 1 majority, refusing to dismiss a complaint for legal malpractice (against the plaintiffs' lawyers in an underlying medical malpractice matter). He rejected the lawyers' claim that they had long ago ended the attorney-client relationship and, therefore, that the lawsuit against them was time-barred.

Fabiano v. Philip Morris (AD, July 22, 2008)--Lippman wrote for a unanimous court, dismissing a claim for punitive damages against tobacco companies. He explained that the issue had already been determined in the State Attorney General's action against the companies.

Bloomingdales v. NYC Transit Authority (AD, May 15, 2008)--Lippman wrote for a 4 - 1 majority, reinstating the retail store's lawsuit against the Transit Authority. He rejected the argument that the statute of limitations had expired, explaining that the Authority's negligent cutting of the store's drain pipe was causing a continuous interference with the store's property.

Nash v. Port Authority of NY & NJ (AD, April 2008)--Lippman wrote for a unanimous court, upholding a jury verdict against the owner of the World Trade Center. He agreed that the authority could be held liable for failing to take reasonable precautions against car bombings, thereby leaving the plaintiffs vulnerable to the 1993 terrorist attack.

Bellamy v. Columbia University (AD, Jan. 2008)--Lippman wrote for a 3 - 2 majority, refusing to dismiss a lawsuit brought by a worker who hurt himself slipping and falling in one of the University's kitchens where he worked. He rejected the University's position that it was necessarily immune from this negligence claim under the Workers' Compensation Law.

Roberts v. Boys & Girls Republic (AD, Jan. 2008)--Lippman wrote for a 4 - 1 majority, dismissing a lawsuit brought by the mother of a little league baseball player; she was injured when she walked by a player practicing swinging his bat. Lippman agreed with the defendants that the mother had assumed the risk when she walked alongside the playing field.

Iny v. Collum (AT, Aug. 2006)--Lippman wrote a dissent against the 2 -1 majority at Appellate Term The majority had reversed a small claims judge's award of damages to the plaintiff for the damage done to his property. Lippman argued that the plaintiff was entitled to the award, which was based on the damage already done to his garage by his neighbor's tree; it was not enough simply to require the neighbor to remove the tree.

(As noted previously, that's 9 of Lippman's 12 total opinions in civil cases. 8 of the 11 at the Appellate Division, and the 1 at Appellate Term. The 3 Appellate Division opinions which were not included are somewhat technical and, thus, considerably less revealing--if at all--of ideological, philosophical, jurisprudential, and similar leanings.
The 3 not included are Ficus Investments v. Private Capital Management [AD, Jan. 2009--involved investment banking, mortgages, loans, misappropriation, etc.], Pellegrino v. Oppenheimer & Co. [AD, Jan. 2008--involved a motion for attorney disqualification because of alleged conflict of interest], and In re Michael McC. v. Manuela A. [AD, Dec. 27, 2007--jurisdiction to modify an Italian court's child custody order].
There may well be something to uncover in those 3. But whatever that might be is not so apparent. And, in any event, there are the 9 opinions just identified which collectively do provide some clues.)

So what can be drawn from those 9 opinions?

What is most apparent, perhaps, is that Lippman is not hostile to civil litigation. Out of these 9 opinions, he wrote 6 in favor of the plaintiff. He is not anti-plaintiff.

More than that, some of the opinions that Lippman wrote favoring the plaintiff came in divided cases--i.e., in cases close enough to split the court and cause at least one member to write a dissent. In Gotay (3-1), to allow the legal malpractice action to continue; in Bloomingdales (4-1), to allow the store's action for nuisance and trespass against the Transit Authority; in Bellamy, (3-2) to allow the worker's slip and fall action to continue; and in Iny (2-1), dissenting in favor of the property owner who sued his neighbor.

Even more than that, Lippman wrote opinions favoring a variety of plaintiffs, against a variety of defendants, in a variety of different causes of action, against a variety of defenses. In Castle Village, he favored the residential property owning plaintiffs against engineers, for their negligence, and rejected their argument that the complaint was too general. In Gotay, he favored the medical malpractice client-plaintiffs against lawyers, for their legal malpractice, and rejected their statute of limitations defense. In Bloomingdales, he favored the retail store plaintiff against a government agency in New York City, for nuisance and trespass, and rejected the defense that the store should have commenced the action shortly after the initial act of negligence. In Nash, he favored the personal injury plaintiffs against a bi-state government agency, for negligence, and rejected a host of defenses including the unliklihood of the 3d party terrorists' criminal conduct. In Bellamy, he favored the worker-plaintiff against a university employer, for negligence resulting in a slip and fall, and rejected a defense of workers' compensation law immunity. And in Iny, he favored the homeowner-plaintiff against a neighbor, for nuisance resulting from the neighbor's encroaching tree, and disagreed with the defendant and with his own colleagues that the plaintiff was not entitled to compensation for the damage to his property as long as the defendant removed the tree.

So, Lippman does not seem hostile--not particularly at least, and certainly not blindly--to civil suits against either individuals or professionals or businesses or even government agencies. And he's willing to write against his colleagues who may disagree with his pro-plaintiff positions.

But this should not be taken to suggest that Lippman is, then, necessarily blindly or lopsidedly pro-plaintiff. Out of the 9 civil opinions of his that we've considered, he sided against the plaintiff in 3 of them. In fact, he did so even when he had to write against colleagues--including when he had to write against a majority of them. So he is certainly willing to favor the defendants in civil cases, and even in the close cases.

Recall that, in Fabiano, he wrote the opinion, for a unanimous court, siding with the tobacco companies against the plaintiffs who were seeking punitive damages. In Braddock, he wrote a dissent, against a 3-2 majority, arguing that the fraud cause of action should be dismissed. And in Roberts, he wrote the opinion, for a 4-1 majority, dismissing a personal injury lawsuit on the theory that the plaintiff had assumed the risk.

So there we are. Lippman does not at all appear to be adverse to civil lawsuits. He certainly does not appear on a mission to stem some real or imagined civil litigation explosion. He has written opinions favoring plaintiffs in tort cases, and more so than he has written favoring defendants. Moreover, he has done so even when the cases were close.

On the other hand, Lippman does not appear entirely plaintiff-happy either. He has written opinions favoring tort defendants. And he has done so even in close cases as well.

In short, Lippman seems somewhat pro-plaintiff, but not lopsidedly so.

Well, between the previous post and this one, that's a brief annotated recap of Lippman's criminal and civil opinion record. In the meantime, the Senate Judiciary Committee has not held confirmation hearings. These hearings have traditionally been pretty worthless--mere rubber stamps of the Governors' picks. But they are necessary nonetheless, to complete the appointment. Whenever that does take place, there will surely be something of interest to report and comment upon on this blog.