The East River Divide

This was originally posted on the SGR Blog.

Litigation is not mathematics. There is not always a universally accepted equation or answer. And as we often tell clients: Any similarity between justice and our justice system may be purely coincidental. Outcomes are often dependent upon the experience-based tendencies of the trial court, or the composition of a jury or appellate court panel.

Many considerations go into filing a lawsuit, such as the various theories of liability to be prosecuted, the nature of the relief sought, and the cost-benefit analysis based upon the anticipated expense of litigation. But occasionally, in a suit to be pursued in New York City, an important threshold consideration is in which of the five counties the proceeding should be filed.

New York State is divided into four intermediate appellate branches called the Appellate Division, which hears appeals from the trial level courts. These four Appellate Divisions serve as geographical/jurisprudential boundaries. Manhattan and the Bronx are in the First Department, and Brooklyn, Queens and Richmond are in the Second Department.

The First and Second Departments often disagree on both substantive and procedural matters. In some cases, our highest appellate court, the Court of Appeals, has not resolved the conflict. In those situations, a departmental split may result in a different answer to the same legal question depending upon the county in which the litigation is brought. And, as a result, the  progress and success of a lawsuit may hinge on this seemingly innocuous geographical divide. Three examples follow.

Leave to Amend A Complaint

Facts, documents and information developed during discovery proceedings often warrant amendment of a pleading to encompass new claims. A party who wishes to amend a complaint, after the time to do so as of right has expired, must make a motion for leave of court to do so. The applicant is required to submit a proposed amended complaint to the Court.

In the Second Department, the trial court will simply look at the amended pleading to determine if it states a legally cognizable cause of action that is not barred as a matter of law (e.g. by the statute of limitations) and will not prejudice the other side (e.g. by reopening discovery on the eve of trial).

By contrast, the First Department often requires a so-called “affidavit of merit” by a person having personal knowledge of the facts (i.e. a sworn statement setting forth and documenting the facts on which the amended pleading is based). If an affidavit of merit is not presented in connection with the party’s motion, courts in the First Department will often consider the motion procedurally defective and deny the motion without addressing the merits.

As a result of this departmental split, amending a complaint is usually simple and formulaic in Brooklyn, whereas in Manhattan the process may be time consuming and expensive.

Statute of Limitations on an Unjust Enrichment Claim

More substantive issues, such as the statute of limitations, may vary from county to county. For example, there is currently a departmental split with respect to the statute of limitations for a claim of unjust enrichment.

A cause of action for unjust enrichment, also known as a quasi-contract or an implied contract, arises where there is no enforceable contract between parties, but one party is nevertheless unfairly benefiting from the efforts of the other without providing compensation.

Under First Department law, a claim for unjust enrichment seeking money damages accrues upon the occurrence of the alleged wrongful act giving rise to  a claim for restitution and is subject to a six-year statute of limitations. By contrast, with respect to the same cause of action under the same circumstances, the Second Department will generally apply a three-year limitations period.

As a result, a cause of action for unjust enrichment may be time-barred if asserted in Brooklyn, but the very same claim would be timely if asserted in Manhattan.

Succession Rights To Rent Stabilized Apartments

The jurisprudential split between the First and Second Departments may also apply to more granular legal questions, such as the succession rights to rent stabilized apartments. As a general matter, a family member may have succession rights to a rent stabilized apartment if he or she resided in the apartment during the two-year period immediately preceding the protected tenant vacating. But there is a split in authority between the First and Second Departments regarding when the “permanent vacating of the housing accommodation by the tenant” occurs.

In the First Department, the triggering point occurs at the moment the named tenant moves out of the rent stabilized apartment. In the Second Department, the triggering point occurs once the protected tenant ceases to pay rent and execute lease renewals.

As a result, in Queens, a family member who resides in a rent stabilized apartment may exercise succession rights even though the named tenant had moved out of the apartment several years prior. In the Bronx, under those same circumstances, the family member would be denied succession rights.

Litigation often involves many considerations other than the facts, including the proper venue for the lawsuit. Experienced SGR attorneys are available to help navigate these issues in the evaluation, prosecution and defense of potential claims.

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