The Concept of Appealability

Appealability” is a threshold jurisdictional consideration that incorporates a requirement of “appealable paper” and relates to the issue of whether a direct appeal, either as of right or by permission, may be taken to the Appellate Division from the judgment or order in question. Judging by the volume of decisions dismissing appeals on the court’s own motion for lack of appealability, practitioners often overlook it before embarking upon the time and expense of an appeal.

To read the full text of this article co-authored by Duane Morris attorney Thomas R. Newman, originally published in the New York Law Journal, please visit the firm website.

Pennsylvania Court Rules Business Registration Does Not Grant General Jurisdiction Over Foreign Corporations

On December 22, 2021, the Supreme Court of Pennsylvania handed down a landmark ruling on personal jurisdiction in Mallory v. Norfolk Southern Railway Company. Before this decision, the controlling rule had been that foreign corporations subject themselves to general personal jurisdiction by registering to do business in Pennsylvania. In Mallory, the Pennsylvania Supreme Court changed that rule and held that a foreign corporation’s registration to do business does not confer general personal jurisdiction over the corporation.

To read the full text of this Duane Morris Alert, please visit the firm website.

Insurers Win on COVID-19 Business Interruption Claims

The first California state appellate decision on COVID-19 Business Interruption coverage is now in the books, and it’s one more victory for insurers.  In The Inns by the Sea v. California Mutual Ins. Co., Case No. D079036 (Cal. Ct. App. 4th Dist., Div. 1, Nov. 15, 2021), the California Court of Appeal for the Fourth District found there was no coverage, notwithstanding the absence of a virus exclusion in the relevant policy.  The court’s 36-page opinion provides a thorough and careful analysis of several important COVID-19-related business interruption issues.

To read the full text of this post by Duane Morris attorneys Max H. Stern and Holden Benon, please visit the Duane Morris Insurance Law Blog.

Ethical Considerations on Appeal

Most New York attorneys are familiar with Part §130, Costs and Sanctions, of the Rules of the Chief Administrator which requires that every pleading, written motion and other paper served on another party or filed or submitted to the court be signed by an attorney whose signature certifies that attorney’s good faith, informed belief that “the contentions therein are not frivolous.” 22 NYCRR §130-1.1(a). The intent of Part 130.1 is “to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics.” Kernisan v. Taylor, 171 A.D.2d 869 (2d Dept. 1999).

Regrettably, some attorneys do not understand that their ethical obligations do not come to an end when an appealable order or judgment is entered against their client in the trial court. Part 130 and the discretionary monetary sanctions it authorizes the court to impose-up to $10,000 for any single occurrence of frivolous conduct-also applies to motions and briefs filed and submitted to an appellate court.

To read the full text of this article by Duane Morris of counsel Thomas R.  Newman, please visit the firm website.

Motions for Reargument in the Court of Appeals

It is a fundamental tenet of our system of jurisprudence that there must be an end to lawsuits. The law recognizes that “it is to the interest of the State that there should be an end to litigation.” Israel v. Wood Dolson Co., 1 N.Y.2d 116, 118 (1956). This principle pervades the judicial attitude toward motions for reargument, which were aptly described almost 70 years ago in Cohen & Karger, Powers of the New York Court of Appeals (rev. ed 1952), at page 694. “A motion for reargument is generally an act of desperation; it is a psychological device for raising hopes which are almost invariably doomed to defeat. The percentage of cases in which a motion for reargument has been granted in the Court of Appeals is very low—unquestionably less than one out of one hundred.”

Nothing has changed. The 2019 Annual Report of the Clerk of the Court of Appeals contains a table showing that during the period 2015-2019 of 131 motions for reargument of appeals, none was granted; of 317 motions for reargument of motions, only one was granted. (2019 Report, Appendix 7).

To read the full text of this article by Duane Morris attorney Thomas R. Newman, please visit the firm website.

Pipeline Developers Beware: Third Circuit Disallows Eminent Domain Over State Lands Under Natural Gas Act

In a unanimous, precedential opinion issued on September 10, 2019, the United States Court of Appeals for the Third Circuit held that the Natural Gas Act (NGA), 15 U.S.C. § 717, et seq., does not abrogate state sovereign immunity and does not give private pipeline companies the power in federal court proceedings to condemn property owned by states. See In re PennEast Pipeline Co., F.3d , Nos. 19-1191 through 19-1232, 2019 WL 4265190 (3d Cir. Sept. 10, 2019). This decision—the first on this topic by any federal appellate court—may have far-reaching implications for pipeline development and other infrastructure projects in Pennsylvania, New Jersey, Delaware and beyond.

View the full Alert on the Duane Morris LLP website.

SCOTUS Rejects Bare-Metal Defense in Products Liability Cases Under Maritime Law

On March 19, 2019, the United States Supreme Court took a middle-ground approach in deciding when, under federal maritime law, a “bare-metal” manufacturer is liable for failure to warn of dangers posed by parts used with its products, even though they are made by other manufacturers. Rejecting both a “foreseeability” standard and the “bare metal defense,” the 6-3 majority in Air & Liquid Systems Corp. v. DeVries held that “[i]n the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.”

Read the full Duane Morris LLP Alert.

Duane Morris Partner Rob Byer Among Faculty at Advanced Appellate Advocacy 2019

Rob ByerDuane Morris partner Robert L. Byer will be among the faculty at PBI’s Advanced Appellate Advocacy 2019.  Join a panel of appellate judges and experienced appellate lawyers as they walk you through the process of appealing a case to a higher court. They’ll also identify potential minefields that you may encounter and provide guidance for side-stepping an explosion.

For more information or to register, please visit the PBI website.

Duane Morris’ Thomas Newman Recognized as the NYC Appellate “Lawyer of the Year” by Best Lawyers

Duane Morris’ Thomas Newman has been named by Best Lawyers as the 2019 “Lawyer of the Year” in New York City for Appellate Practice. The recognition is given to only one attorney for each practice area and city. Lawyers are selected based on high marks received during peer-review assessments conducted by Best Lawyers each year. Mr. Newman also received this distinction in 2018 and 2013.

Mr. Newman practices in the areas of insurance and reinsurance law, including coverage, claims handling, contract drafting and arbitration and litigation. In addition to his insurance/reinsurance practice, Mr. Newman has wide experience in appellate practice and has handled hundreds of appeals in both state and federal courts in New York and elsewhere and has argued 80 appeals in the New York Court of Appeals.

He is a member of the American Academy of Appellate Lawyers; a life member of the American Law Institute; a Fellow of the Chartered Institute of Arbitrators; a member of the London Court of International Arbitration; a member of the American College of Coverage and Extracontractual Counsel; a member of ARIAS-U.S.; a member of the Federation of Defense and Corporate Counsel; a Fellow of the New York State Bar Association Foundation; and a member of the New York State Office of Court Administration’s Advisory Committee on Civil Practice.

He is the original author of New York Appellate Practice, co-author of the Handbook on Insurance Coverage Disputes and the author of numerous articles on insurance/reinsurance and appellate practice.