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  • Writer's pictureDaniel Schneider

An Argument for a Comprehensive Opposition to an Appeal of a Successful Motion to Dismiss

Farber Schneider Ferrari LLP was successful in fending off an appeal from a formidable and persistent litigant who has previously appealed to the New York Court of Appeals and won. See Kralik v. 239 E. 79th St. Owners Corp., 5 N.Y.3d 54, 57 (2005).

Kralik sued our client, an attorney, for legal malpractice based upon the unsuccessful prosecution of an arbitration. We succeeded, before the trial court, in having the case dismissed because the statute of limitations had run. See Decision of the trial court.

The linchpin of the dismissal was the decision that "the continuing violation doctrine" did not apply. Essentially, that doctrine tolls a statute of limitations to the end of a representation of a single subject matter. Managing Partner, Daniel J. Schneider, convinced the trial court that the decision to bring the arbitration and the arbitration itself were separate matters since, the arbitration was dead on arrival pre commencement, itself barred by its own statute of limitations.

The trial court held that Kralik's claim accrued before the commencement of the arbitration because his injury, if there was one, was knowable pre-arbitration. Thus, the Court held that the continuing violation doctrine did not extend the accrual date past the commencement of the arbitration. Since that was more than three years prior to the commencement of this action, it was time barred.

Mr. Kralik elected to appeal. We are excited to report that the Appellate Division unanimously affirmed the lower court's ruling. See Decision of the Appellate Division.

But it did so for entirely different reasons! It reversed the reasoning of the trial court and held that the action was timely. However, it analyzed the other justifications for dismissal presented by our client, and held that two of them, despite the reversal on the statute of limitations issue, required affirmation of the dismissal of the case.

While we are overjoyed at the result, this decision highlights the importance of strategy even in appellate practice. While the appeal limited itself to the statute of limitations issue Farber Schneider Ferrari employed its extensive appellate experience to decide to present to the appellate court all arguments presented to the trial court. In response to Kralik's 13 page brief, our client interposed a brief in opposition that exceeded 40 pages.

Such disparity might be seen as overkill, but in this case, it was vital. It permitted the appellate court to analyze the other bases for dismissal that had been present to the trial court and find alternative justification to affirm. "On appeal, the standard of review is for the Court to examine the [issues] de novo." Duane Reade, Inc. v. Cardtronics, LP, 54 A.D.3d 137, 140 (1st Dept. 2008). This means the Appellate Court has the power to look to every justification for dismissal presented to the court below, not just the one the trial court relied upon in dismissing the case.

However, had our client not presented the full panoply of arguments in her opposition brief, the court might not have known of them. Legal arguments from the court below are not part of the record before the appellate court and therefore, if any legal argument was made below, it will not be seen by the appeals court unless it is present in the legal brief submitted to the appeals court—in essence, remade.

Farber Schneider Ferrari LLP employed its acumen in appeals work to make sure that all appropriate arguments were before the court to obtain this successful result.


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