Opinion
Motion No: M-5826
01-05-2017
In the Matter of the Application of Daisy Wright, et al., Petitioners-Respondents, For a Judgment Under Article 78 of the Civil Practice Law and Rules, Action No. 1 v. Jewish Home Lifecare, Manhattan, Respondent-Appellant, -and- New York State Department of Health, et al., Respondents. In the Matter of the Application of The Friends of P.S. 163, Inc., et al., Petitioners-Respondents, For a Judgment Under Article 78 of the Civil Practice Law and Rules Action No. 2 v. Index No. 100546/15 Jewish Home Lifecare, Manhattan, Respondent-Appellant, New York State Department of Health, et al., Respondents.
(M-5826) -2- January 5, 2017 Petitioners-respondents in both actions, having moved for reargument of the order of this Court entered October 27, 2016 (M-2452), or for a stay of proceedings pending their application for leave to appeal to the Court of appeals from the order of this Court entered October 27, 2016 (M-2452), or for leave to file a brief in response to the Attorney General's amicus brief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied. All concur except Tom, J., who dissents in a memorandum as follows:
Tom, J. (dissenting) Because the majority's October 27, 2016 decision (M-2452) permitting State respondents, who failed to take an appeal of an adverse ruling, to file an amicus brief in place and stead of an appellants' brief overlooked and misapprehended critical issues of law, I would grant petitioners' motion for reargument, and upon reargument, would direct the appeal panel not to consider the improperly accepted amicus brief. I would also grant a stay of a determination of the appeal pending the resolution of petitioners' motion seeking leave to appeal the October 27, 2016 order to the Court of Appeals. Finally, in the alternative, I would grant petitioners' unopposed request to file a brief responding to the State respondents' amicus brief. As was set forth in greater detail in the October 27, 2016 decision, this action concerns respondent-appellant Jewish Home's plan to build a new building on the Upper West Side which is opposed by the community appurtenant to a school adjacent to the project site and by other community members. Two separate article 78 proceedings were brought to challenge the approval of the project by respondent New York State Department of Health (DOH). Jewish Home, DOH, and its Commissioner were named as respondents in both proceedings. Although Jewish Home appealed Supreme Court's order vacating DOH's determination approving the project and remanding it to DOH for an additional environmental review of the project, the State respondents failed to file a notice of appeal from that adverse ruling against them.
(M-5826)-3- January 5, 2017 The State respondents, determined to make up for their failure to comply with basic procedural and jurisdictional rules for appellate practice, then moved for leave to intervene, or in the alternative for leave to appear as amici, and for leave to participate in oral argument. On April 19, 2016, this same panel unanimously denied the motions in their entirety (2016 NY Slip Op 70773[u] [1st Dept 2016]). Thereafter, the State respondents moved to reargue this Court's unanimous order insofar as it denied that branch of their prior motion for leave to file an amicus curiae brief after having failed to take an appeal of an adverse ruling against them. The issue raised on that motion to reargue was whether this same panel of judges - which previously denied the State respondents motion to file a brief as an intervenor, or in the alternative for leave to appear as amici - had overlooked or misapprehended any issues of fact or law regarding the request to file an amicus brief when we unanimously denied the motion (see People v D'Alessandro, 13 NY3d 216, 219 [2009]["a motion to reargue must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion'"], quoting CPLR 2221[d][2]). However, rather than apply the appropriate standard on that motion, the majority in the October 27, 2016 decision opined that the State respondents - parties to this action - should be permitted to file an amicus brief, an unprecedented, improper and legally inconsistent outcome. In other words, the majority could not and did not identify anything that was overlooked or misapprehended on the prior motion, as is required to grant a motion for reargument. The majority, contrary to well settled law and contrary to this Court's precedent and internal rules, permitted a partisan party who neglected to take an appeal to file an amicus brief. On this motion, petitioners seek to reargue the October 27, 2016 order initially because the majority did not apply the appropriate standard for a reargument motion. As noted, because the majority did not point to anything overlooked or misapprehended on the first motion for leave to intervene or file an amicus brief, petitioners are correct. Moreover, the majority in the October 27, 2016 decision misapprehended the rules applicable to amicus briefs and the authority upon which it relied. Crucially, the majority overlooked that the very definition of "amicus curiae," is, a "friend of the court," or "one who, as a stander by . . . may inform the court" (3B Carmody-Wait 2d § 26:4). In other words, the purpose of an amicus brief is to provide the court with the (M-5826)-4- January 5, 2017 perspective of a nonparty whose interests could generally be affected by the court's ruling, but who has no direct stake in the litigation. "It denotes the situation in which a nonparty with an interest in the case wishes to argue and support a particular side" (Siegel, NY Prac § 525 at 923 n15 [5th ed 2011]). Indeed, it has been noted that the amicus curiae is "not a party, and cannot assume the functions of a party; he must accept the case before the court with issues made by the parties, and may not control the litigation" (Kruger v Bloomberg, 1 Misc 3d 192, 196 [Sup Ct, New York County 2003], quoting Kemp v Rubin, 187 Misc 707, 709 (Sup Ct, Queens County 1946]). In fact, this Court has consistently declined to allow a party that neglected to take an appeal to file a brief for reversal nonetheless. And, we have explicitly ruled it inappropriate to permit a partisan amicus curiae, noting that that is a "contradiction in terms" (People v Reason, 44 AD2d 533, 533 [1st Dept 1974], affd 37 NY2d 351 [1975] citing Central Hanover Bank & Trust Co. v Saranac Riv. Power Corp., 243 App Div 843 [3rd Dept 1935][denying request of partisan party to intervene as amicus curiae]). The majority's decision also overlooked the procedures set forth in this Court's internal Clerk's Manual, which provides that "an amicus curiae is an organization or person, though not a party to an action, who has a broad political, economic, social, intellectual or professional interest, or special expertise in a matter before the court" (Clerk's Manual [C][17][emphasis added]). While the majority stated that there is no "statute or official court rule that would have prohibited the Attorney General from filing a respondent's brief on behalf of the State respondents" this overlooked the import of CPLR 5513. Relatedly, the majority incorrectly viewed the matter as one of discretion as opposed to a fundamental jurisdictional defect. Failure to file a notice of appeal is a jurisdictional defect that cannot be cured and mandates dismissal of an appeal or, where appropriate, striking of a brief (CPLR 5513[a]; Dewey Ballantine LLP v Philippine Natl. Bank, 303 AD2d 178 [1st Dept 2003]; see also Wausau Ins. Cos. v Feldman, 213 AD2d 179, 180 [1st Dept 1995][granting motion to strike brief filed by party which never filed a notice of appeal or cross appeal]). In addition, the majority incorrectly relied on cases purporting to support the State respondents' claim that "other departments of the Appellate Division permit a party in the position of the State respondents to file a brief as respondent." Those cases involved a brief for nonparty State Office of Children & Family Services in an appeal concerning the Surrogate (M-5826)-5- January 5, 2017 Court's authority to vacate or deny recognition to a foreign order of adoption, and two estate matters on which the Attorney General is permitted to represent and enforce the right of certain beneficiaries pursuant to EPTL 8-1.1. Thus, those cases are clearly distinguishable from this matter. Of course, there is no basis to permit State institutions to skirt fundamental jurisdictional and procedural rules. They are bound by the same rules as other parties to a proceeding and do not get special preference because they, as urged by the majority, represent "broader institutional and public interests." If we take the majority's reasoning further, State institutions would never be required to file a notice of appeal because they would never have a personal interest in the outcomes of their determinations. In any event, none of the cases cited by the majority concern a party to an action being permitted to file an amicus brief. Similarly, the majority's reliance on the Court of Appeals decision in Avella v City of New York (27 NY3d 1059, 1059 [2016]) was misplaced. In Avella, the Court of Appeals denied a motion to preclude the City of New York, a party which had not itself sought leave to appeal from an order annulling its approval of a development project, from filing a respondent's brief. Significantly, neither Avella nor any of the other authorities relied upon by the majority or State respondents permits a named party to file an amicus curiae brief. Rather, those authorities concern unique circumstances or the discretion of the Court of Appeals to accept a brief from State agencies, the Attorney General, or the City of New York as a respondent's brief. There are simply no authorities to support the proposition that a party to a lawsuit can appear as amicus curiae. Although the State respondents' brief has been filed and distributed to the appeal bench, in light of the clearly erroneous nature of the majority's October 27, 2016 order, I would direct that the appeal bench not consider the State respondents' jurisdictionally defective brief, or in the alternative, that the appeal be heard before a different bench. Turning to the request for a stay, I note that petitioners have filed a motion asking the Court of Appeals to grant leave to appeal the October 27, 2016 order. Although we cannot stay our October 27, 2016 order since the proposed amicus brief was already filed, given the erroneous outcome of that decision pursuant to CPLR 5519 (c) we should stay the appeal bench's determination of the appeal pending the Court of Appeals decision on the petitioners' request for leave to appeal. Neither Jewish Home nor the State respondents will be prejudiced (M-5826) -6- January 5, 2017 by a slight delay in this matter while the Court of Appeals considers the motion for leave to appeal. Finally, in the alternative, petitioners request leave to file a brief in response to the State respondents' brief, which is in actuality the brief of aggrieved parties to which petitioners would certainly have been able to respond had the State respondents complied with the normal jurisdictional and procedural requirements. Fundamental due process requires that petitioners be given an opportunity to respond to the State respondents' brief, particularly given the unusual circumstances of this case. Indeed, it is well settled that due process mandates an opposing party receive "some opportunity to respond" (Beck-Nichols v. Bianco, 20 NY3d 540 [2013]; see also Mathews v. Eldridge, 424 US 319, 332 [1976]["The fundamental requirement of due process is the opportunity to be heard"]). The majority, in summarily denying petitioners' right, without any explanation, to respond to the State respondents' amicus brief clearly violated petitioners' fundamental due process right. Yet, the majority is inexplicably opposed to giving petitioners this opportunity. This is especially strange since the State respondents explicitly take no position on the request to submit a responsive brief, and thus the request is unopposed. Further, it is curious that the majority believes the appeal bench will "benefit" from the outlook of the State respondents on the appeal while apparently determining that the appeal bench will not benefit from petitioners' response to that outlook, which response petitioners have not yet submitted. Ultimately, given the erroneous outcome of the October 27, 2016 decision, fundamental fairness and due process mandates that petitioners be given a chance to respond to the State respondents brief, as it may impact the determination of the appeal.
ENTERED: January 5, 2017
_____________________ CLERK
PRESENT: Hon. Peter Tom,Justice Presiding, David Friedman Angela M. Mazzarelli Marcy L. Kahn,Justices
M-5826
Index No. 100641/15