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Court of Appeals and Appellate Practice | MONDAY, AUGUST 25, 2014 | S21

Aggrieved
defendant summary judgment on the sub- And yet, the lack of aggrievement continues
2. 76 A.D.3d 144 (2d Dep’t 2010).
3. 76 A.D.3d at 146.
stantive issue that plaintiff was not owed to surface in appellate decisions as one of the 4. Id. at 156-57 (footnotes omitted).
the money because plaintiff had not been more common reasons for the dismissal of 5. The term “skin in the game” has been variously at-
prevented from performing the contract, as appeals.17 In the more than four years since tributed to sources ranging from investor Warren Buffet
« Continued from page S17
it had claimed. Plaintiff appealed and defen- Mixon was decided, it has been cited more to William Shakespeare (the “pound of lesh” in “The
had failed to file a notice of appeal and, dant did not.11
than two dozen times for the aggrievement Merchant of Venice”). Whatever the source, the meaning is clear—a real interest in the outcome.
therefore, were not parties to the appeal.7
The threshold question confronting the issue. Obviously the aggrievement issue is one 6. Id. at 146.
• Second, the court dismissed that part of Court of Appeals was: Could defendant, which that recurs with some degree of regularity.
7. Id. at 156. The consequences of failing to ile a
the limousine defendants’ appeal addressed had prevailed below on the substantive issue, Aggrievement can, however, arise in a timely notice of appeal are fatal in virtually all cases.
to that part of the order that dismissed plain- obtain review of their procedural argument more subtle context than an appeal from an However, this is another topic for another day. See CPLR
5513 (establishing 30-day deadline for taking of appeal as of right). See also Hecht v. City of New York, 60 N.Y.2d
tiffs’ complaint against the shuttle defendants that the lower court had rejected? As a irst order dismissing another party’s claims. For 57 (1983).
inding that the limousine defendants were step, the Court of Appeals noted, a prevailing example, a party who assigned its rights to a 8. Id. at 159.
not aggrieved by that part of the order.8 In party cannot appeal since it has neither the note was not aggrieved by an order attaching 9. Id. at 159.
other words, the shuttle defendants were not need nor the right to appeal. The one excep- the proceeds of that note.18 Nor is a member 10. 60 N.Y.2d 539 (1982).
11. Id. at 543-44.
harmed by the dismissal of plaintiffs’ claims tion to this rule is where a party prevails, of a limited liability company aggrieved by a 12. Id. at 544-45.
against the limousine defendants.
but is not granted all of the relief that it had judgment against the LLC.19 Nor is a plaintiff 13. Id. at 545-46. In the end, the Court of Appeals con-
• Third, the court modiied that part of requested.12
aggrieved by the dismissal of defendant’s cluded that the complaint should have been dismissed
the order that dismissed the limousine defen- The Court of Appeals found its answer to third-party claim against a subcontractor.20
on the procedural notice of claim issue. Id. at 548-49.
14. 76 A.D.3d at 152.
15. See also DiMare v. O’Rourke, 35 A.D.3d 346, 346
dants’ indemnity/contribution cross-claims this threshold question in CPLR 5501(a)(1), Likewise, a party who has not requested (2d Dep’t 2006) (“To be ‘aggrieved,’ the party must have
against the shuttle defendants and reinstated which allows a party to raise on appeal any relief is not aggrieved.21 Nor is the guardian ‘a direct interest in the controversy which is affected
those claims, inding that (a) the limousine issue which, “if reversed, would entitle the of an incapacitated person aggrieved by an by the result,’ and the adjudication must have ‘a bind-
defendants were, in fact, aggrieved by the respondent to prevail in whole or in part on order directing a payment from the funds ing force against the rights, person or property of the party.’”).
part of the order that dismissed their cross that appeal.” Thus, a respondent who fully of an incapacitated person.22 Nor are defen- 16. In Matter of the Arbitration between Kenmore-
claims and (b) the motion court had erred in prevailed below but is unhappy with the ind- dants aggrieved by an order granting plaintiff Town of Tonawanda Union Free School District, 110
inding that there were no issues of fact as to ings, opinion or rationale of the order in its leave to amend a complaint to add a new A.D.3d 1494, 1496 (4th Dep’t 2013) (“The fact that the
the shuttle defendants’ negligence.9
favor may not appeal from the order because party, since no relief was granted against the order contains language or reasoning that [respondent]
Why were the limousine defendants it won and it has nothing from which to appeal defendants.23
deems adverse to its interests does not furnish a ba- sis for standing to take a[ ] [cross] appeal”); Photonics
Industries International v. Zhao, 39 A.D.3d 610, 612 (2d
aggrieved by one part of the summary judg- because it is not aggrieved. However, if the It is always good advice, before deciding Dep’t 2007) (party who prevails cannot appeal merely
ment order and not the other? The second adverse party appeals, the prevailing party whether to perfect an appeal, to think long because order contains language, reasoning or dictum
part of the two-part test formulated by Judge may urge afirmance on any ground raised and hard about the possible consequences that party deems adverse to its interests); Edge Manage- ment Consulting v. Irmas, 306 A.D.2d 69, 69 (1st Dep’t
Skelos comes into play. The shuttle defen- below, if rejected by the lower court, thus of perfecting the appeal. One of the conse- 2003).
dants sought and obtained dismissal of the obtaining, in effect, appellate review of the quences of not carefully considering whether 17. See, e.g., Espiritu v. Shuttle Express Coach, 115
limousine defendants’ cross-claims, therefore lower court’s indings, opinion or rationale the proposed appellant has been aggrieved— A.D.3d 787, 788 (2d Dep’t 2014); Ahrorgulova v. Mann,
the limousine defendants were aggrieved by even if it has not “lost” and is, therefore, not and an embarrassing consequence at that—is 108 A.D.3d 581, 582 (2d Dep’t 2013); Allan v. DHL Express (USA), 99 A.D.3d 828, 829 (2d Dep’t 2012); Cusson v. Hill-
that part of the order that dismissed their aggrieved by the order.13
dismissal of the complaint on a purely pro- ier Group, 97 A.D.3d 1042, 1043 (3d Dep’t 2012); Coons
cross-claims. In other words, the limousine In analyzing the Court of Appeals’ decision cedural ground. As demonstrated in Mixon v. Beltrone Construction, 4 A.D.3d 584, 585 (3d Dep’t
2004).
defendants’ skin was lacerated by the dis- in Parochial Bus Systems, the court in Mixon and the other cases cited here, one of the 18. Advanced Distribution Systems v. Frontier Ware-
missal of their cross-claims.
concluded that “aggrievement turns on relief, things that appellate counsel must think housing, 27 A.D.3d 1151, 1152 (4th Dep’t 2006).
19. Michael Reilly Design v. Houraney, 40 A.D.3d 592,
In Mixon, the Second Department focused not reasoning.”14 This provides a simple and about before proceeding with an appeal is 593 (2d Dep’t 2007).
on the Court of Appeals decision in Parochial useful test that any lawyer contemplating an whether their client is aggrieved by the order 20. Murray v. City of New York, 43 A.D.3d 429, 430.
Bus Systems v. Board of Education of the City appeal should be able to easily apply in con- and whether they may appeal.
But see Klinge v. Ithaca College, 235 A.D.2d 724, 725 (3d
of New York,10 which arose out of a contract sidering whether to proceed with an appeal: Dep’t 1997) (college that had duty to indemnify faculty members was aggrieved and could appeal denial of mo-
dispute over the amount due to plaintiff under Does the order have a direct and real impact •••tion by faculty members to dismiss claim where faculty
a contract between the parties. Defendant on the client? If it does not, the party is not ••••••••••••••••••••••••••
members chose not to appeal).
1. Stunk & White in “The Elements of Style” (3d ed. 21. Edgar S. v. Roman, 115 A.D.3d 931, 931 (2d Dep’t
moved for summary judgment arguing that aggrieved and there is no right to appeal.15 1979), irmly lays down the distinction between the two. 2014).
plaintiff had not iled a notice of claim. The Unhappiness with the logic or language of My grammar school teachers, attempting to drive the point home to students who asked “Can I go to the bath- 22. In the Matter of Matthew L., 85 A.D.3d 917, 917-18 (2d Dep’t 2011).
motion court rejected defendant’s notice of an order does not make a person aggrieved room?” would respond “Yes, you can; but no you may 23. Finkelstein v. Lincoln National, 107 A.D.3d 759, 759-
claim procedural motion and instead granted
for appellate purposes.16
not!”
60 (2d Dep’t 2013).

components could be replaced easily and distinguished Hoover from Robinson, opining safe at the time it leaves the manufacturer’s 17. Caronia, 22 N.Y.3d at 446.
cheaply.”34 The court stated its intention was that the post-hole digger in this case was safe hands. A manufacturer is not liable for dan- 18. Id. at 448.
19. See Donovan v. Philip Morris USA, 455 Mass. 215,
not to create a manufacturing environment at the time of sale because, while the safety gers created by substantial alterations to the 225-27, 914 N.E.2d 891, 901-03 (2009) (concluding that
where no safety device is reasonably safe shield remained in place, it could not have product thereafter.”37
the cause of action is in tort, not equity)
unless it is designed to last the lifetime of the caused Bowers’ accident, and the safety shield •••••••••••••• •••••••••••••• •
20. See Bower v. Westinghouse Elec., 206 W. Va. 133, 140-42, 522 S.E.2d 424, 431-33 (1999) (holding that a
product on which it is installed but that “the would have remained in place if Smith had not plaintiff who does not allege a present physical injury
manufacturer must still ‘use reasonable care’ removed, discarded, and failed to replace it.
1. 22 N.Y.3d 480, 5 N.E.3d 578, 982 N.Y.S.2d 431.
may recover future medical monitoring costs)
in designing the product that is reasonably According to the dissent, Smith was the 2. Civil Practice Law §4504, Public Health Law §4410, and Public Health Law §2803-c.
21. See Redland Soccer Club v. Department of the Army
safe for all of its intended uses and foresee- sole tortfeasor. Judge Smith further noted 3. John Doe v. Guthrie Clinic, No. 11–cv 6089T, 2012 and Dept. of Defense of the U.S., 548 Pa. 178, 195-96, 696
able misuses.”35 Importantly, as the case was that, if the defendant designer and Smith WL 531026, 2012 U.S. Dist. LEXIS 20507, (W.D.N.Y. Feb. A.2d 137, 145-46 (1997) (stating that the injury in a medi- cal monitoring claim is an economic one)
brought to the court in the context of a ruling had equally deep pockets, there would be 17, 2012).
22. Burns v. Jaquays Mining, 156 Ariz. 375, 380, 752
4. John Doe v. Guthrie Clinic, 710 F.3d 492 (2d Cir. 2013). 5. John Doe, 22 N.Y.3d at 482-83.
P.2d 28, 33 (Ariz. Ct. App. 1988).
on a motion for summary judgment, and the no hesitation that Smith, not the designer, 6. N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 739 N.Y.S.2d
23. Caronia, 22 N.Y.3d at 450.
court underscored that defective design is an should compensate Bowers for her injuries. 348, 765 N.E.2d 844 (2002).
24. 521 U.S. 424 (1997).
issue for the jury to decide, the court ruled Instead, he observed, “pockets are not equally 7. John Doe, 22 N.Y.3d at 484.
25. Id. at 443-44.
26. Caronia, 22 N.Y.3d at 451.
that plaintiffs’ proof overcame defendants’ deep, and it should surprise no one that a 8. 268 A.D.2d 183 (3d Dep’t 2000).
27. Id. at 454.
prima facie entitlement for summary judgment jury assigned two-thirds of the fault to the 9. John Doe, 22 N.Y.3d at 485.
10. Id. at 486.
28. 23 N.Y.3d 41, 11 N.E.3d 693, 988 N.Y.S.2d 543, Prod.
based on the substantial modiication defense, companies that designed, manufactured and 11. The Patient Protection and Affordable Care Act,
Liab. Rep. (CCH) P 19,372.
which allowed their design defect claims and sold the machine—irms that could be liable Public Law No. 111-148, 124 Stat. 119 (2010).
29. Hoover, 23 N.Y.3d at 59 (citing Voss v. Black &
defendants’ substantial modiication defense only for the alleged design defects—and 30 12. 22 N.Y.3d 439, 5 N.E.3d 11, 982 N.Y.S.2d 40, Prod.
Decker Mfg., 59 N.Y.2d 106, 106-07 (1983)).
30. 100 A.D.3d 1495, 954 N.Y.S.2d 345 (2012).
Liab. Rep. (CCH) P 19,295.
31. See Robinson v. Reed-Prentice Div. of Package Mach.,
to be brought before the jury at trial.
percent to the farmer, Peter Smith. This kind 13. A “pack-year” is the equivalent of smoking one
pack of cigarettes a day for a year.
49 N.Y.2d at 479, 403 N.E.2d 440, 426 N.Y.S.2d 717 (1980).
Judge Smith wrote a vigorous dissent, stat- of soak-the-rich fact-inding is commonplace 14. Caronia v. Philip Morris USA, No. 06-cv-224, 2010
32. Hoover, 23 N.Y.3d at 59.
ing that there was no more obvious a time in American tort law.”36 The dissent stated WL 5205583 (E.D.N.Y. Feb. 11, 2010).
33. Id. at 56-57.
to apply the Robinson rule than here, and that the point of Robinson was to make it 15. Caronia v. Philip Morris USA, No. 06-cv-224, 2011
34. Id. at 60.
35. Id. at 61.
that the majority failed to properly do so. He clear that “a manufacturer’s duty is to use WL 338425, at *3 (E.D.N.Y. Jan. 13, 2011).
16. Caronia v. Philip Morris USA, 715 F.3d 417 (2d Cir.
36. Id. at 62.
disagreed with the way in which the majority
reasonable care to design a product that is
2013).
37. Id. at 64.