Representative Cases for Appellate Advocacy

The firm has a seasoned and thriving appellate practice.  Our wide-ranging experience in appellate matters runs the gamut of the firm’s practice areas, and we have obtained successful results in the great majority of U.S. Courts of Appeals and the highest courts of numerous states.  Representative appellate court decisions are listed below.

We typically handle post-trial motions and appeals in cases that our own firm has tried.  Moreover, clients often ask us to either assist or assume prime responsibility for representing their interests in post-verdict and appellate proceedings involving difficult or high-exposure cases.  We are also frequently retained to consult with other firms that are preparing for trial in cases of importance to the client.  We have worked both behind the scenes, in a purely supportive role to assigned defense counsel, and more directly, as an additional counsel of record, tasked with handling important motions during the course of trial and otherwise protecting the trial record. In addition, clients have called upon us to assume responsibility for presenting the oral argument for important appeals in which our firm did not act as counsel of record on the appellate briefs.

LCBF’s deep appellate experience strengthens the firm’s ability to fashion strategies to achieve favorable outcomes at or before trial.  By the same token, the firm’s knowledge and rich practical experience in trying cases substantially enhances our ability to identify and persuasively advocate the most promising issues in the appellate courts – both in our briefs and at oral argument.

Representative Cases

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  • Palumbo v. Transit Technologies, LLC,  144 A.D.3d 773 (2d Dep’t 2016) (affirming summary judgment dismissing Labor Law sections 240(1) and 241(6) by electrical mechanic, who fell part way into a two-foot deep trench; court ruled the case did not present an elevation-related risk covered by section 240(1) and that the trench was not a “hazardous opening” within the meaning of Industrial Code section 23-1.7(b)(1)(i))

  • River View at Patchogue, LLC v. Hudson Ins. Co., 122 A.D.3d 824  (2d Dep’t 2014) (affirming dismissal of a "direct action" against Hudson on ground that plaintiff was bound by a holding, in a prior action we had brought on Hudson’s behalf, that Hudson had not received timely notice of an environmental claim or occurrence)

  • Kolodin v Valenti, 2017 WL 484179 (2d Dep’t 2017) (reversing trial court’s denial of summary judgment to accountant claimed to have given improper tax advice, appellate division held that the advice could not have been the proximate cause of plaintiff’s claimed loss arising from the transfer of funds she authorized from a joint brokerage account to an individual brokerage account owned by her former paramour)

  • Doral v. Federal Home Loan Mortgage Corporation, 2012 WL 1184340 (4th Cir. 2012) (unpublished opinion) (upholding client’s position in mortgage servicing contract dispute that contract damages owed amounted to $124,588, not the more than $10 million claimed)

  • Mendoza v. Federal National Mortgage Ass'n, 2012 WL 600828 (9th Cir. 2012) (holding that (1) court had subject matter jurisdiction to review a sua sponte remand order because the remand was not based upon a lack of subject matter jurisdiction; (2) the district court had no authority to remand a case more than 30 days after removal if the remand was not based upon a lack of subject matter jurisdiction; (3) client had not waived its right to remove by filing an unlawful detainer action in state court with regard to the same property at issue in the removed case, since it dismissed that action following removal; and (4) the district court lacks authority to remand a case at any time based upon a "procedural defect" and a waiver is a procedural defect)

  • Dahar v. Holland Ladder & Mfg. Co., 18 N. Y 3d 521 (2012), aff'g 79 A.D.3d 1651 (4th Dep’t 2010) (rejecting strict liability claim under N.Y. Labor Law asserted against client)

  • Comacho v. New York Housing Authority, 83 A.D.3d 475 (App. Div. 1st Dep’t 2011) (reversing the lower court’s decision granting plaintiff summary judgment on liability, finding triable issues of fact as to whether hazardous lead paint conditions caused injury to the infant plaintiff and whether client had taken reasonable measures to remediate any such alleged hazardous condition)

  • Fox v. Marshall, 88 A.D.3d 131 (App. Div. 2d Dep’t 2011) (rejecting plaintiff estate’s claim that clients affiliated with residential treatment facility may be held liable for medical malpractice for not controlling a voluntary mental health outpatient who committed a seemingly random murder of his mother’s neighbor)

  • Smith v. New York City Housing Authority, 74 A.D.3d 645 (App. Div. 1st Dep’t 2010) (affirming trial court’s award of summary judgment to client in lead paint personal injury action on ground that the affidavit submitted by plaintiff’s expert was legally insufficient to overcome the defendant’s evidence that it was not liable to plaintiff as a matter of law)

  • Sanders v. Grenadier Realty, Inc., 367 Fed. Appx. 172 (2d Cir. 2010) (upholding the district court’s order dismissing the tenant plaintiffs’ claims that clients had violated plaintiffs’ rights under the Fair Housing Act and the First Amendment by refusing to grant the tenants rent subsidies)

  • Nostrom v. A.W. Chesterton Co., 15 N.Y.3d 502 (2010), affirming 59 A.D.3d 159 (1st Dep’t 2009) (rejecting claim that client could be held liable for decedent’s asbestos exposure under N.Y. Labor Law and N.Y. Industrial Code regulations)

  • Kerusa Co., LLC v. W10Z/515 Real Estate Ltd., 12 N.Y.3d 236 (2009) (reversing intermediate appellate court opinion and dismissing common law fraud claim against luxury condominium building sponsor in light of New York Attorney General’s comprehensive disclosure regulations applicable to condominium apartment sales)

  • Deweese v. Nat’l R. R. Pass. Corp., 590 F.3d 239 (3d Cir. 2009) (affirming client’s right to contractual indemnity and rejecting indemnitor’s defense of state sovereign immunity)

  • R&G Mortgage Corp. v. Federal Home Loan Mortgage Corp., 584 F.3d 1 (1st Cir. 2009) (affirming client’s claim that non-party bank failed to intervene timely in client’s injunctive action to terminate its mortgage servicer)

  • Montgomery v. Cheshire Handling d/b/a Riverside Reload Center, 2009 WL 332026 (Vt. Supr. 2009) (affirming denial of Rule 60(b) motion to vacate dismissal of a state court case involving an accident with catastrophic injuries, including loss of leg at hip, based on an allegedly inconsistent position taken by our client in a subsequent federal court trial on the merits of the same accident, which resulted in a defense verdict)

  • O&G Industries v. Amtrak, 537 F.3d 153 (2d Cir. 2008) (holding, in case of first impression, that a Connecticut statute nullifying indemnity agreements drafted to insulate a contracting party from its own negligence was preempted by the Amtrak Reform and Accountability Act of 1997)

  • Falk v. Chittenden, 11 N.Y.3d 73 (2008) (disqualifying plaintiff’s counsel from representing the PBA president in disciplinary proceedings and effectively disqualifying the counsel from representing the plaintiff in the related federal Section 1983 litigation)

  • Southern California Regional Rail Auth. v. Superior Court, 77 Cal Rptr. 3d 765 (Ct. App. 2d Dist. 2008) (holding, in case argued by firm, that federal regulations preempted numerous claims by plaintiffs based on state common law standards with respect to the operation of a passenger train in a “push” mode, with the locomotive in the rear and a control cab in the front)

  • Vega v. New York City Housing Authority, 859 N.Y.S.2d 438 (App. Div. 1st Dep’t 2008) (affirming trial court’s grant of summary judgment to defendant in a lead paint action because (1) defendant was not chargeable with notice of the infant, having denied the father’s application for residency at the grandmother’s apartment, and (2) it had exercised due care)

  • Rivera v. Anilesh, 8 N.Y.3d 627 (2007) (rejecting the Appellate Division's ruling that the defendant dentist could not rely upon testimony as to her customary practice in treating a patient to support a reasonable inference that the dentist acted in accordance with that same routine when treating the plaintiff patient)

  • In Stowe v. National Railroad Corp., 2012 WL 4360436 (2d Cir. 2012), affirming 793 F. Supp. 2d 549 (E.D.N.Y. 2011), the Second Circuit rejected all of the plaintiff's arguments on appeal and upheld a zero damages verdict after LCBF's client had conceded negligence. Among other things, the plaintiff had argued that the Supreme Court's Decision in CSX Transp. Inc. v. McBride, 131 S. Ct. 2630 (2011) required a new trial because the FELA jury charge on causation omitted the phrase "no matter how small. "The plaintiff asserted this phrase was mandatory after McBride because the charge approved in McBride had contained that language. Agreeing with the LCBF position on appeal, the Second Circuit ruled that because the jury charge given by the trial court tracked the language of the statute, the charge was not erroneous. The LCBF team was headed by Gerry Ford and Mark Landman

  • Adeptech Systems, Inc. v. Federal Home Loan Mortgage Corp., 2012 WL 6720927 (4th Cir. 2012), aff’g, 2011 WL 6820184 (E.D.Va. 2011) (affirming summary judgment on behalf of Freddie Mac dismissing plaintiff software vendor’s multi-million dollar breach of contract, tortious interference and conspiracy claims)

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