Wade Clark Mulcahy LLP

In a noteworthy decision, the Court of Appeals recently held that where a triable issue of fact is litigated and a final verdict reached, that issue of fact is rendered moot on pending appeal.  Meaning, if 1) a party moves for summary judgment on liability, 2) that motion is denied, 3) the movant appeals that decision, and 4) a trial verdict decides liability before the appeal is heard, that verdict becomes the law of the case, and the appeal is rendered moot.  This is a big deal.

The recent decision of <em><strong><a href="https://www.wcmlaw.com/wp-content/uploads/2022/11/Bonczar-v.-American-MultiCinema-Inc.-Cases-New-York-Westlaw-Edge.pdf">Bonczar v. American MultiCinema Inc.</a></strong></em>, 38 N.Y.3d 1023, 1025, 188 N.E.3d 1000, <em>reargument denied</em>, 38 N.Y.3d 1170, 195 N.E.3d 526 (2022), presented a plaintiff who sought damages against the defendant for violating Labor Law §240(1) and moved for partial summary judgment on that claim. While the lower court granted plaintiff’s summary judgment motion, the Appellate Division reversed finding issues of fact as to whether a statutory violation occurred.  Subsequently, plaintiff’s Labor Law §240(1) was brought before a jury. At the conclusion, the jury held in favor of the defendant finding that plaintiff’s acts were in fact the sole proximate cause of his injury. The Appellate Division affirmed the jury’s verdict on appeal.

Thereafter, plaintiff brought both the order denying his partial summary judgment motion and the order affirming the jury’s verdict before the Court of Appeals.

The Court of Appeals held that pursuant to CPLR 5501(a) the denial of plaintiff’s summary judgment motion may be reviewed on appeal only if the nonfinal order necessarily affects the final judgment. In a matter of first impression, the court explained that to determine whether a nonfinal order necessarily affects the final judgment, the question is: “<strong>whether the nonfinal order necessarily removes a legal issue from the case so that there is no further opportunity during the litigation to raise the question decided by the prior non-final order</strong>.”

The court explained that here, when the Appellate Division reversed the plaintiff’s motion for summary judgment, finding issues of fact, that nonfinal order did not remove any issues from the case; rather, it was left undecided. Instead, the parties had the opportunity to litigate those issues at trial, and in fact did so.   Therefore, the Court of Appeals held that the Appellate Division’s order denying plaintiff summary judgment did not necessarily affect the final judgment and thus, the Court of Appeals could not review it now on appeal.

The decision is a big deal, because if a trial takes places while a summary judgment appeal is still pending -- which can happen -- the verdict trumps the appeal, and therefore.  <em>Bonczar</em> significantly reduces the leverage held by the appealing party in the scenario described above.    To that end, we recently attended a CAMP Conference at the 2nd Department, and the presiding judge was pressing the importance of <em>Bonczar</em><strong>, </strong>to further incentivize settlement to all parties.

Thanks to Gabi Scarmato for her contribution to this post.  For any questions about <em>Bonczar, </em>or how we expect it will be applied in the future, please contact <a href="mailto:bgibbons@wcmlaw.com">Brian Gibbons</a>.

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