practice handbook on certification of state … · · 2016-04-20practice handbook on...
TRANSCRIPT
PRACTICE HANDBOOK ON
CERTIFICATION OF STATE
LAW QUESTIONS
BY THE UNITED STATES
COURT OF APPEALS
FOR THE SECOND CIRCUIT
TO THE NEW YORK STATE
COURT OF APPEALS
ADVISORY GROUP TO THE
NEW YORK STATE
AND FEDERAL
JUDICIAL COUNCIL
Third Edition
March 2016
©2016 Advisory Group to the New York State and Federal Judicial Council
All Rights Reserved
Foreword
Federal courts are sometimes called upon to make decisions on issues that
cannot be resolved fully without the determination of questions of state
constitutional, common, or statutory law. This task is straightforward when the
rule of decision has been articulated by that state’s highest court. But often there
is no authoritative state court decision clearly on point.
In 1986, New York joined a growing number of states that allowed
questions of state law arising in cases pending in another jurisdiction to be
certified to the state’s highest court for resolution. The New York Court of
Appeals is authorized, but not required, to consider and decide questions of New
York state law certified by certain other courts.
Thirty years have passed since the certification procedure was adopted,
and its results have met with enthusiastic approval. Some practitioners, however,
remain unaware of how the procedure operates and when it may be invoked. For
example, not all practitioners are aware that state law questions in cases reaching
the U.S. Supreme Court or federal courts of appeal by way of 28 U.S.C. §1292(b)
or Federal Rule of Civil Procedure 54(b) may be certified, so that such questions
may be decided by the New York Court of Appeals prior to the time that the
entire case has reached the stage of judgment in the district court. This is the
third edition of the Practice Handbook, which was developed by the Advisory
Group to the New York State and Federal Judicial Council to provide readily
accessible guidance to attorneys litigating within the United States Court of
Appeals for the Second Circuit faced with the possibility that their clients may
wish, or other parties may ask, the federal court to refer state law issues to the
New York Court of Appeals for determination, or that the Second Circuit may
certify state law questions sua sponte.
We wish to thank John Asiello, Clerk of the New York Court of Appeals,
and his staff, and Catherine O’Hagan Wolfe, Clerk of the Second Circuit Court
of Appeals, and her staff, for their kind assistance in the preparation of this
Handbook.
We also wish to thank Counsel Press for generously agreeing to print the
first two editions of the Handbook free of charge, and now again printing this
Third Edition free of charge, for the benefit of the Courts and practitioners.
ADVISORY GROUP TO THE STATE
AND FEDERAL JUDICIAL COUNCIL
JAMES L. BERNARD AND
SHARON M. PORCELLIO, CO-CHAIRS
Kevin N. Ainsworth
Hon. Evelyn L. Braun
Arthur T. Cambouris
Michael A. Cardozo
Hon. Carmen Beauchamp Ciparick
Linda J. Clark
Carrie H. Cohen
Hon. Diane Davis
Evan A. Davis
Lisa Dell
Ira M. Feinberg
Hon. Helen E. Freedman
Tracy Catapano-Fox
Robert J. Giuffra, Jr.
James S. Gleason
Alan J. Goldberg
David M. Gouldin (emeritus member)
Hon. Victoria A. Graffeo
Henry M. Greenberg
Gregory P. Joseph
Jonathan G. Kortmansky
Marilyn C. Kunstler (emeritus member)
Bernice K. Leber
Alan Levine
Hon. Howard A. Levine (emeritus member)
Roger J. Maldonado
Marjorie Peerce
Hon. Albert M. Rosenblatt (emeritus member)
Jay G. Safer
Doreen A. Simmons
Sheldon K. Smith
Guy Miller Struve
Stuart A. Summit (emeritus member)
Jeffrey A. Wadsworth
James M. Wicks
Catherine O’Hagan Wolfe
Background
New York, like the vast majority of states, has adopted a procedure by
which courts from outside the state court system may seek from the New York
Court of Appeals the answers to New York state law questions at issue in
litigation before them. This development was made possible by a 1985
amendment to the New York State Constitution1 and subsequent adoption of a
rule of practice by the Court of Appeals, which became effective on January 1,
1986. That rule was renumbered and slightly revised, effective September 1,
2005.
Under the Constitution and §500.27(a) of the New York Court of Appeals
Rules of Practice, the Court of Appeals will consider questions certified by the
highest court of another state, a federal circuit court of appeals, or the United
States Supreme Court. New York is thus unlike most other jurisdictions that will
accept questions certified by United States district courts,2 and unlike some
jurisdictions that will accept questions certified by any federal court.3
1 New York State Constitution Article 6, §3(b)(9) provides:
The court of appeals shall adopt and from time to time may amend a rule
to permit the court to answer questions of New York law certified to it
by the Supreme Court of the United States, a court of appeals of the
United States or an appellate court of last resort of another state, which
may be determinative of the cause then pending in the certifying court
and which in the opinion of the certifying court are not controlled by
precedent in the decisions of the courts of New York.
2 Forty-eight states, the District of Columbia and Puerto Rico allow certification
from the U.S. Supreme Court and any U.S. court of appeals. In 36 of these
jurisdictions, any U.S. district court may certify questions, as well. Indeed, as a
general matter, outside New York, “more questions are answered from district
courts than circuit courts.” Jona Goldschmidt, Certification of Questions of
Law: Federalism in Practice, published by the American Judicature Society
(1995), at 34.
3 Seventeen jurisdictions permit certifications from any federal court, and thus
will accept questions certified by, for example, bankruptcy courts and the U.S.
Court of Claims.
2
Between 1986, the first year that certification was possible, and the end of
2015, the Court of Appeals received 138 certifications. The Court promptly
accepted 131 of the certifications.4 One hundred thirty three of the certifications
were sent by the Second Circuit. One certification was sent by the Eleventh
Circuit Court of Appeals and answered by the Court of Appeals in 1999; one
certification was sent by the Third Circuit Court of Appeals and answered by the
Court of Appeals in 2003; and three certifications were sent by the Supreme
Court of Delaware, two of which the Court of Appeals answered in 2010 and
2014, respectively, and one of which is pending before the Court after the Court
accepted the certification in June 2015. The number of certifications has ranged
from a low of 1 in 1986 to a high of 10 in both 1998 and 2014. Over the last five
years, the Court of Appeals on average has accepted approximately five
certifications annually.
4 A list of the cases in which certifications were sent to the New York Court of
Appeals and their subsequent history appears at Appendix A hereto.
3
Procedures for Certification in
the Second Circuit Court of Appeals
Section 0.27 of the Second Circuit’s Local Rules Relating to the
Organization of the Court provides for the certification by that Court to the
highest court of a state unsettled and significant questions of state law that will
control the outcome of a federal case.5
Questions of state law may be certified
either by the Court sua sponte or on request of any party.
Sua Sponte Certification. When the certification is made sua sponte, it
occurs after briefs and appendices have been filed and oral argument has been
heard on the merits of the appeal. After the Court certifies questions, it retains
jurisdiction to entertain a motion to amend or withdraw the questions. A party
may file a motion with the Court for such purpose in accordance with FRAP
27(a). Such motion will be decided by the panel that certified the questions.
Certification on Request By a Party. The Second Circuit also may certify
questions at the request of any party. A party may either file a motion requesting
the Second Circuit to certify questions of state law, or include such a request in
its appellate brief.
Motions for Certification. Motions to certify questions of state law may be
filed with the Clerk of the Court any time after the notice of appeal has been
filed, pursuant to §0.27 of the Local Rules Relating to the Organization of the
Court. The movant may propose the questions in the moving papers. When a
motion to certify questions of state law is filed before the briefing of the appeal,
5 Local Rule 0.27 provides:
Where authorized by state law, this Court may certify to the highest court
of a state an unsettled and significant question of state law that will control
the outcome of a case pending before this Court. Such certification may be
made by this Court sua sponte or on motion of a party filed with the clerk
of this Court. Certification will be in accordance with the procedures
provided by the state’s legislature or highest state court rules, e.g., Conn.
Public Act No. 85-111; New York Court of Appeals Rule [500.27].
Certification may stay the proceedings in this Court pending the state
court’s decision whether to accept the certification and its decision of the
certified question.
4
the motion should be filed as any other motion. It is the practice of the motions
panel to refer the motion to the panel that will hear the merits of the appeal, and
the motion then will be decided by the latter panel after full briefing and oral
argument on the merits. However, if the party wishes the motion to certify to be
decided by the motions panel in advance of briefing and argument on the merits,
it may so request (although the motions panel will not necessarily grant the
request) and should include in its papers a statement alerting the motions panel to
the reasons why the motion to certify should be heard prior to the full briefing of
the appeal. Although oral argument is not required, it is the practice of the
Second Circuit to grant oral argument on the motion for certification of questions
if requested, and such motion will be heard on a Tuesday together with all other
scheduled motions, if the motions panel agrees to hear rather than refer the
motion. When the motion to certify questions of state law is filed after the
briefing of the appeal, it automatically will be referred to the panel hearing the
merits of the appeal and argument thereon will be consolidated with the argument
on the merits. Motions to certify sometimes are made after oral argument on the
merits of the appeal, in which case they are referred to the panel that heard the
argument. Oral argument on a motion to certify is never allowed if the motion
was not made until after argument on the merits. In all cases, the opposition to a
motion to certify must be filed as any other motion and any response will be due
within the usual time for any other motion, unless shortened or extended by the
Court. See FRAP 27(a)(3).
Stay Pending Decision on Certification. When certification of questions is
sought prior to the briefing of the appeal, any party may file a separate motion
for a stay of the briefing schedule pending the determination of the motion for
certification. When making such a stay motion, the movant should cross-
reference the motion for certification and give any other reasons for seeking the
stay. Alternatively, and only if all parties agree, for cases subject to the Civil
Appeals Management Plan, i.e., civil cases in which all parties are represented by
counsel, in lieu of filing a motion for a stay of the briefing schedule the parties
may request an extended briefing schedule from staff counsel at the time of the
pre- argument conference,6
stating that the reason an extended schedule is
requested is that a motion for certification has been, or shortly will be filed.
6 See Section 5 of Part C (Civil Appeals Management Plan) of the Second Circuit
Appendix to the Federal Rules of Appellate Procedure.
5
Suggestion for Certification in Appeal Brief. In lieu of filing a separate
motion for certification as described above, the party seeking certification may
include in its brief on the merits of the appeal the suggestion that questions be
certified.
Once Certification is Granted. If certification is granted, the Second
Circuit issues an opinion containing the questions it requests the Court of
Appeals answer, which opinion the Clerk of the Second Circuit sends to the
Clerk of the Court of Appeals. The Second Circuit may use questions as
submitted by a party, modify or restate those questions, or draft the questions
itself. See discussion at pp. 8-9, infra, of how questions should be framed to
maximize the chance that the Court of Appeals will accept them. The Second
Circuit Clerk’s office also will copy the entire appellate record, which may
include an appendix containing relevant portions of the district court record, and
send it to the Clerk of the Court of Appeals.7 Once the certification opinion is
sent to the Court of Appeals, that Court decides whether to accept the questions.
See Procedures for Responding to Certifications in the New York Court of
Appeals, below.
Settlement Prior to Action by the State Court. If a civil case is settled
following certification, but before the Court of Appeals decides the questions, the
parties should notify the Second Circuit, which will then enter an order
dismissing the appeal in the Second Circuit and withdrawing the certification to
the Court of Appeals.
Once Questions are Answered by the State Court. When the Court of
Appeals issues its opinion deciding the questions, it sends the opinion to the
Second Circuit and the parties. Prior to its final determination of the appeal, the
Second Circuit, sua sponte or on request of any party, may request additional
briefing on the merits in light of the Court of Appeals’ answers.
7 Generally, the entire record is not sent to the Second Circuit, but instead is
retained in the district court. In lieu of sending the complete record, the district
court clerk will provide an index of the record to the Second Circuit.
6
State Law Questions
Before U.S. District Courts
As noted above, under New York constitutional and state law, the Court of
Appeals may not consider certified questions directly from United States district
courts. Federal procedural law, however, specifically 28 U.S.C. §1292(b)8 and
Federal Rule of Civil Procedure 54(b),9 provide mechanisms whereby state law
questions before a district court may, in appropriate circumstances, reach a U.S.
federal appeals court including the U.S. Supreme Court, which may, in turn,
generate questions certified to the Court of Appeals.
Appeal Pursuant to 28 U.S.C. §1292. Under §1292(b), a party may seek
an interlocutory appeal of a district court order where the movant establishes that
the challenged order “(1) involves a controlling question of law, (2) about which
there is a substantial ground for difference of opinion, and (3) that an immediate
appeal would materially advance the ultimate termination of the litigation.”
Ryan, Beck & Co., LLC v. Fakih, 275 F. Supp. 2d 393, 395 (E.D.N.Y. 2003),
8 28 U.S.C. §1292(b) provides:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court of Appeals which
would have jurisdiction of an appeal of such action may thereupon, in its
discretion, permit an appeal to be taken from such order, if application is
made to it within ten days after the entry of the order: Provided,
however, That [sic] application for an appeal hereunder shall not stay
proceedings in the district court unless the district judge or the Court of
Appeals or a judge thereof shall so order.
9 Federal Rule of Civil Procedure 54(b) provides:
When more than one claim for relief is presented in an action, whether
as a claim, counterclaim, cross-claim, or third-party claim, or when
multiple parties are involved, the court may direct the entry of a final
judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for delay
and upon an express direction for the entry of judgment. . . .
7
citing Nat’l Asbestos Workers Medical Fund v. Philip Morris, Inc., 71 F. Supp.
2d 139, 162 (E.D.N.Y. 1999). The district court must find and certify to the
circuit court that these prerequisites are met, and the circuit court may then
exercise its discretion to review the order subject to the interlocutory appeal.
Once the circuit court accepts the interlocutory appeal, questions can be certified
in the traditional manner, assuming they meet all other requirements. See, e.g.,
Landoil Res. Corp. v. Alexander & Alexander, 77 N.Y.2d 28 (1990) (answering
certified question by the Second Circuit considering a §1292(b) appeal).
Appeal Pursuant to FRCP 54(b). A final judgment adjudicating fewer than
all of the claims in an action can also be appealed to the circuit court in specific
circumstances. Pursuant to FRCP 54(b), where a district court makes a final
judgment in regard to at least one claim or party, the partial final judgment may
be appealed to the circuit court while the district court adjudicates the remaining
issues. For a judgment to be final under Rule 54(b), “(1) multiple claims or
multiple parties must be present, (2) at least one claim, or the rights and
liabilities of at least one party, must be finally decided within the meaning of 28
U.S.C. § 1291, and (3) the district court must make ‘an express determination
that there is no just reason for delay’ and expressly direct the clerk to enter
judgment.” Ginett v. Computer Task Group, Inc. 962 F.2d 1085, 1091 (2d Cir.
1992) (emphasis in original). Given the high standard for entry of judgment
under FRCP 54(b), the Rule has somewhat limited use in certifying questions to
the Court of Appeals. However, once a partial final judgment is entered pursuant
to FRCP 54(b) and appealed, the circuit court may certify questions to the Court
of Appeals. See, e.g., Baker v. Health Management Systems, Inc., 98 N.Y.2d 80
(2002) (answering certified question by the Second Circuit considering a FRCP
54(b) appeal).
8
Procedures for Responding to Certifications
in the New York Court of Appeals
The state court side of the certification procedure is governed by §500.27
of the Court of Appeals Rules of Practice.10 Section 500.27(a) explains that
certification to the Court of Appeals is appropriate when “determinative
questions of New York law are involved . . . for which no controlling precedent
of the Court of Appeals exists . . . .” The Court of Appeals’ involvement
commences when the certification from the certifying court is received by the
Clerk of the Court of Appeals.
Certification. The Second Circuit will state the questions to which it seeks
answers from the Court of Appeals. The questions should properly be framed to
satisfy the criteria of N.Y. Const. Art. 6, §3(b)(9) and Rule of Practice
§500.27(a). In the past, the Court of Appeals has declined to answer some or all
of the questions certified in a case for the following reasons:
The question posed “is not likely to be dispositive of the
[underlying]matter.” Yesil v. Reno, 92 N.Y.2d 455, 457 (1998) (per
curiam).
There had already been a “lengthy delay in adjudication of” the claims,
especially if the claims require prompt resolution. See Tunick v. Safir,
94 N.Y.2d 709, 711 (2000) (per curiam). In Tunick, a civil rights action,
the Court of Appeals declined to answer the question certified “in the
mutual interest of expeditious resolution of the preliminary
injunction/prior restraint issue.” Id.
The action “presents a fact pattern that would most likely not arise in
any State court proceeding.” Yesil, 92 N.Y.2d at 457; see also Grabois
v. Jones, 88 N.Y.2d 254, 255 (1996) (per curiam) (“the likely rarity of
any recurrence of this issue” mitigates against acceptance).
The question has a “theoretical quality,” is “[a]bstract” or “overly
generalized.” Yesil, 92 N.Y.2d at 457.
The issue may be “more appropriate for resolution in the first instance
by the Federal courts.” Grabois, 88 N.Y.2d at 255.
10 The full text of §500.27 is reproduced at Appendix B hereto. It became
effective September 1, 2005, replacing §500.17, with only minor modifications to
the prior version of the rule.
9
Because the parties, being pro se or lacking a real interest in the matter
as “mere stakeholders,” are not expected by the Court to give much
assistance in deciding the issue. See id.
The parties “did not raise, brief or argue [the] State constitutional
issue” posed by the circuit court. Tunick, 94 N.Y.2d at 711.
Because the question calls for the “application of existing principles of
law to the facts.” Liriano v. Hobart Corp., 92 N.Y. 2d 232, 236 (1998)
(answering one part of a certified question but declining to answer the
second part of it).
The questions tendered were answered in a recent New York Supreme
Court order being reviewed by the Appellate Division and thus “[in]
the circumstances, it is unquestionably preferable in the resolution of
significant State law issues to secure the benefit afforded by our normal
process -- the considered deliberation and writing of our intermediate
appellate court in a pending litigation.” Rufino v. United States, 69
N.Y.2d 310, 312 (1987) (per curiam).
Both parties agreed, after certification, how the question should be
answered. See Gelb v. Board of Elections, 96 N.Y.2d 748, 749 (2001).
The Court of Appeals also has reframed questions it agreed to answer. In
Wildenstein & Co. v. Wallis, 79 N.Y.2d 641 (1992), the Court declined to answer
pure questions of law divorced from the facts of the particular case, e.g., “Does
the New York Rule Against Perpetuities apply to preemptive rights and future
consignment interests in personal property,” id. at 644, and gave only case-
specific answers, “Wildenstein’s preemptive and exclusive consignment rights . .
. are not subject to the Rule Against Perpetuities.” Id. at 651. See also In re
Southeast Banking Corp., 93 N.Y.2d 178 (1999) (because the Eleventh Circuit’s
question as framed did not call for an affirmative or negative response, i.e.,
“[w]hat, if any, language does New York law require . . .,” the Court of Appeals
responded by adopting a “general framework” for the resolution of the issue). In
a certification order, the Second Circuit may invite the Court of Appeals to
expand, reformulate or modify a question, and the Court of Appeals may accept
such an invitation. See Israel v. Chabra, 537 F.3d 86, 102 (2d Cir. 2008); 12
N.Y.3d 158, 163 (2009); 601 F.3d 57, 62 (2d Cir. 2010).
10
Supporting or Objecting to Acceptance of Certification. In deciding
whether to accept certified questions, the Court of Appeals typically relies only
upon what it receives from the certifying court. There is no procedure for
making a motion in the Court of Appeals for acceptance or rejection of a
certification. On occasion, however, parties have sent letters to the Court
arguing why the Court should or should not agree to answer the certified
questions, and the Court will consider these if received before its conference on
the certification (see below).
Acceptance or Rejection of Questions. Once a certification is received, the
Office of the Clerk of the Court (“Clerk’s Office”) prepares a report describing
the case and the question or questions certified. The report is circulated to the
Court, and the certification is then discussed in a conference at which the Court
will decide whether to accept or reject it.
Requests for Expedited Resolution. Although the average time from the
Court of Appeals’ receipt of a request to answer certified questions to its
determination of whether to accept is only 27 days, and the average time from
the Court’s decision to accept certified questions to its issuance of an opinion is
only seven months, one of the concerns parties have expressed about the
certification procedure is that it adds to the length of time for final resolution of
the appeal. While certified questions are calendared as expeditiously as possible,
a party seeking a preference should advise the Court as soon as practicable of
that need by letter to the Clerk of the Court, with proof of service of one copy on
each other party. The letter should state why a preference is needed, why
alternative remedies, such as submission without argument, are not appropriate,
and opposing counsel’s position on the request.
Clerk’s Notification to Attorney General’s Office. Pursuant to §500.27(f)
of the Court of Appeals Rules of Practice and Executive Law §71, if a
certification involves the “constitutionality of an act of the Legislature of this
state” and neither the State nor an agency thereof is a party to the action, the
Clerk’s Office will notify the Attorney General. Executive Law §71 states that
“the attorney-general shall be permitted to appear . . . in support of the
constitutionality of such statute.”11
11 Because a court would not certify a question of federal constitutional law to the
Court of Appeals, the “constitutionality” at issue with respect to the notification
procedures relates to state constitutional questions.
11
If Certification Rejected. If the Court of Appeals declines to accept the
certification it will so notify the certifying court and the parties. The Court may
explain in its order the reasons why it declined to answer the questions. See, e.g.,
Tunick v. Safir, 94 N.Y.2d 709 (2000) (per curiam); see also Gelb v. Board of
Elections, 96 N.Y.2d 748 (2001) (per curiam) (although the Court initially
accepted the question for review, the parties later agreed on the answer to the
question and therefore it declined to answer the question for lack of a live
controversy); Joseph v. Athanasopoulos, 18 N.Y.3d 946 (2012) (the Court
initially accepted the question for review, but, upon reconsideration, declined to
accept the question in light of the appellant’s unwillingness to litigate the
certified question and to continue to prosecute the appeal in the Second Circuit,
and the apparent disintegration of the attorney-client relationship between the
appellant and its counsel).
If Certification Accepted. If the Court of Appeals agrees to accept the
certification it will either answer the questions as drafted by the certifying court
or, on occasion, rewrite the questions after it receives the parties’ briefs. See,
e.g., Wildenstein & Co. v. Wallis, 79 N.Y.2d 641 (1992). The Court of Appeals
prefers that the certification include the following language, frequently used by
the Second Circuit, see, e.g., Securities Investor Protection Corp. v. BDO
Seidman, LLP, 222 F.3d 63, 81-82 (2d Cir. 2000):
Although we certify to the Court of Appeals the questions as framed
above, we also wish to make clear that we have no desire to restrict
the Court of Appeals’ consideration of any state law issues it might
wish to resolve in connection with this appeal. Therefore, though our
immediate request is for answers to the questions as framed, we
would welcome any guidance the Court of Appeals may care to
provide with respect to any state law issues presented by this appeal.
12
Once the certification is accepted, the following procedures then are followed:
Notification to Certifying Court and Parties: The Court of Appeals will instruct the Clerk to notify the certifying court that it has accepted the
certification. The Court also will instruct the Clerk to advise the parties of
the schedule for briefing that it has set and to calendar argument on the
certified questions on notice to the parties.
Briefing. Although the certified questions may be determined
pursuant to the Court’s alternative “sua sponte merits” procedure (see
§500.11 of the Court’s Rules of Practice), the preferred method of handling
is full briefing and oral argument on an expedited schedule. The parties will
submit opening, opposition and reply briefs on the certified questions
according to the schedule set by the Court of Appeals, which will be
communicated by the Clerk’s Office. The order of briefing will be set forth
in the schedule and will not depend on the parties’ status as
plaintiff/defendant or appellant/appellee in the federal action. The party
who supports an affirmative answer to the question usually will be directed
to file the opening and reply briefs and the party who supports a negative
answer usually will be directed to file the opposition brief. The caption on
these briefs should be the same as the caption in the certifying court, with
the exception that in the Court of Appeals the “appellee” is referred to as
the “respondent”. The same procedures and form requirements apply to
these papers as apply to appeals from the lower New York courts, with the
exception that a §500.9 Preliminary Appeal Statement is not required for
certified questions.
Appendix. Appellant shall prepare an appendix for the Court of
Appeals, which should include all court orders and any documents from the
record that are relevant to the questions of New York law to be answered
(see §500.14[b]).
Argument. Oral argument is expected for certified questions, as it is
for all normal-coursed appeals before the Court of Appeals (see §500.18).
The name of the arguing attorney and argument time requested shall appear
in the upper right corner of the party’s brief cover (see §500.13). The
Clerk will notify the parties of the date of argument and time allotted each
party.
13
Decision By Court of Appeals. Section 500.27(g) provides that
“[w]hen a determination is rendered by the Court with respect to the
questions certified, it shall be sent by the clerk of the Court to the certifying
court.” It is the practice of the Clerk’s Office to send copies of the
Court of Appeals’ decision directly to the parties and to the certifying
court. Decisions are also made publicly available on the Court’s website
immediately after issuance. See Procedures for Certification in the Second
Circuit Court of Appeals, supra, for discussion of procedure upon receipt of
answers. Although a party may seek reconsideration of the Court of
Appeals’ answer to certified questions as with other decisions of that Court,
a party has no right to seek review of the Court of Appeals’ decision by the
United States Supreme Court.
1
Appendix A
The cases in which certifications were sent to the New York Court of Appeals
from 1986, when the certification procedure became effective, through 2015, and
their subsequent history where available, are as follows:
Kidney v. Kolmar Labs., Inc., No. 86-7194 (2d Cir. July 7, 1986); 68 N.Y.2d
343 (1986); 808 F.2d 955 (2d Cir. 1987).
*Rufino v. United States, No. 86-6175 (2d Cir. Jan. 21, 1987); 69 N.Y.2d 310
(1987) (certification declined); 829 F.2d 354 (2d Cir. 1987).
Loengard v. Santa Fe Indus., Inc., No. 86-7682 (2d Cir. Jan. 28, 1987); 70
N.Y.2d 262 (1987).
*Retail Software Servs., Inc. v. Lashlee, 838 F.2d 661 (2d Cir. 1988); 71
N.Y.2d 788 (1988) (certification declined); 854 F.2d 18 (2d Cir. 1988).
Home Ins. Co. v. Am. Home Prods. Corp., 873 F.2d 520 (2d Cir. 1989); 75
N.Y.2d 196 (1990); 902 F.2d 1111 (2d Cir. 1990).
Alexander & Alexander Servs., Inc. v. Lloyd’s Syndicate 317, 902 F.2d 165 (2d
Cir. 1990); sub nom Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 77
N.Y.2d 28 (1990); sub nom Alexander & Alexander Servs., Inc. v. Lloyd’s Syndicate
317, 925 F.2d 44 (2d Cir. 1990).
Banque Worms v. BankAmerica Int’l, No. 90-7106 (2d Cir. May 30, 1990); 77
N.Y.2d 362 (1991); 928 F.2d 538 (2d Cir. 1991).
Ass’n of Surrogates & Supreme Court Reporters v. State of New York, No. 90-
9036 (2d Cir. Mar. 21, 1991); 78 N.Y.2d 143 (1991); 940 F.2d 766 (2d Cir. 1991).
Wildenstein & Co., Inc. v. Wallis, 949 F.2d 632 (2d Cir. 1991); 79 N.Y.2d 641
(1992); 983 F.2d 1047 (2d Cir. 1992).
Unigard Sec. Ins. Co., Inc. v. N. River Ins. Co., 949 F.2d 630 (2d Cir. 1991);
79 N.Y.2d 576 (1992); 4 F.3d 1049 (2d Cir. 1993).
Hertz Corp. v. City of N.Y., 967 F.2d 54 (2d Cir. 1992); 80 N.Y.2d 565 (1992);
1 F.3d 121 (2d Cir. 1993).
Gonzales v. Armac Indus., Ltd., 970 F.2d 1123 (2d Cir. 1992); 81 N.Y.2d 1
(1993); 990 F.2d 729 (2d Cir. 1993).
2
Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47 (2d Cir. 1992); 984
F.2d 69 (2d Cir. 1993) (certification withdrawn before decision by the Court of
Appeals).
Westinghouse Elec. Corp. v. N.Y.C. Transit Auth., 990 F.2d 76 (2d Cir. 1993);
82 N.Y.2d 47 (1993); 14 F.3d 818 (2d Cir. 1994).
Longway v. Jefferson County Bd. of Supervisors, 995 F.2d 12 (2d Cir. 1993);
83 N.Y.2d 17 (1993); 24 F.3d 397 (2d Cir. 1994).
Bocre Leasing Corp. v. Gen. Motors Corp., 20 F.3d 66 (2d Cir. 1994); 84
N.Y.2d 685 (1995).
Madden v. Creative Servs., Inc., 24 F.3d 394 (2d Cir. 1994); 84 N.Y.2d 738
(1995); 51 F.3d 11 (2d Cir. 1995).
Denny v. Ford Motor Co., 42 F.3d 106 (2d Cir. 1994); 87 N.Y.2d 248 (1995);
79 F.3d 12 (2d Cir. 1996).
Consorti v. Owens-Corning Fiberglas Corp., 45 F.3d 48 (2d Cir. 1995); 86
N.Y.2d 449 (1995); sub nom Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003
(2d Cir. 1995).
West-Fair Elec. Contractors v. Aetna Cas. & Sur. Co., 49 F.3d 48 (2d Cir.
1995); 87 N.Y.2d 148 (1995); 78 F.3d 61 (2d Cir. 1996).
Fed. Home Loan Mortgage Corp. v. N.Y. State Div. of Housing Community
Renewal, No. 94-7677 (2d Cir. Apr. 28, 1995); 87 N.Y.2d 325 (1995); 83 F.3d 45 (2d
Cir. 1996).
Mount Vernon Fire Ins. Co. v. Creative Housing Ltd., 70 F.3d 720 (2d Cir.
1995); 88 N.Y.2d 347 (1996); 93 F.3d 63 (2d Cir. 1996).
M.J.F.M. Kools v. Citibank, N.A., 73 F.3d 5 (2d Cir. 1995); No. 957209,
1996 WL 450776 (2d Cir. Aug. 5, 1996) (certification withdrawn before decision by
the Court of Appeals).
*Grabois v. Jones, 77 F.3d 574 (2d Cir. 1996); 88 N.Y.2d 254 (1996)
(certification declined); 89 F.3d 97 (2d Cir. 1996).
Norcon Power Partners, L.P. v. Niagara Mohawk Power Corp., 110 F.3d 6
(2d Cir. 1997); 92 N.Y.2d 458 (1998); 163 F.3d 153 (2d Cir. 1998).
3
Ins. Co. of N. Am. v. ABB Power Generation Inc., 112 F.3d 70 (2d Cir. 1997);
91 N.Y.2d 180 (1997).
Rooney v. Tyson, 127 F.3d 295 (2d Cir. 1997); 91 N.Y.2d 685 (1998).
Liriano v. Hobart Corp., 132 F.3d 124 (2d Cir. 1998); 92 N.Y.2d 232 (1998);
170 F.3d 264 (2d Cir. 1999).
Joblon v. Solow, 135 F.3d 261 (2d Cir. 1998); 91 N.Y.2d 457 (1998); 152 F.3d
55 (2d Cir. 1998).
Royal Indem. Co. v. Providence Wash. Ins. Co., No. 97-7301 (2d Cir. Mar. 6,
1998); 92 N.Y.2d 653 (1998); 172 F.3d 38 (2d Cir. 1999).
Great N. Ins. Co. v. Mount Vernon Fire Ins. Co., 143 F.3d 659 (2d Cir. 1998);
92 N.Y.2d 682 (1999); 170 F.3d 275 (2d Cir. 1999).
Engel v. CBS, Inc., 145 F.3d 499 (2d Cir. 1998); 93 N.Y.2d 195 (1999); 182
F.3d 124 (2d Cir. 1999).
Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v. Aegis Group
PLC, 150 F.3d 194 (2d Cir. 1998); 93 N.Y.2d 229 (1999); 186 F.3d 135 (2d Cir.
1999).
Tanges v. Heidelberg N. Am., Inc., No. 97-9312 (2d Cir. July 17, 1998); 93
N.Y.2d 48 (1999); 173 F.3d 846 (2d Cir. 1999).
*Yesil v. Reno, 172 F.3d 39 (2d Cir. 1998); 92 N.Y.2d 455 (1998)
(certification declined); 175 F.3d 287 (2d Cir. 1999).
Southeast Banking Corp. v. First Trust of N.Y., 156 F.3d 1114 (11th Cir.
1998); 93 N.Y.2d 178 (1999); 179 F.3d 1307 (11th Cir. 1999).
Arg. v. Emery World Wide Delivery Corp., 161 F.3d 108 (2d Cir. 1998); 93
N.Y.2d 554 (1999); 188 F.3d 86 (2d Cir. 1999).
Messenger v. Gruner + Jahr Printing & Publ’g, 175 F.3d 262 (2d Cir. 1999);
94 N.Y.2d 436 (2000); 208 F.3d 122 (2d Cir. 2000).
*Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000); 94 N.Y.2d 709 (2000)
(certification declined); 228 F.3d 135 (2d Cir. 2000).
Green v. Montgomery, 219 F.3d 52 (2d Cir. 2000); 95 N.Y.2d 693 (2001); 245
F.3d 142 (2d Cir. 2001).
4
Sec. Investor Prot. Corp. v. BDO Seidman, LLP, 222 F.3d 63 (2d Cir. 2000);
95 N.Y.2d 702 (2001); 245 F.3d 174 (2d Cir. 2001).
Rangolan v. County of Nassau, 217 F.3d 77 (2d Cir. 2000); 96 N.Y.2d 42
(2001).
Hamilton v. Beretta U.S.A., Corp., 222 F.3d 36 (2d Cir. 2000); 96 N.Y.2d 222
(2001); 264 F.3d 21 (2d Cir. 2001).
*Gelb v. Bd. of Elections of City of N.Y., 224 F.3d 149 (2d Cir. 2000); 95
N.Y.2d 879 (2000); 96 N.Y.2d 748 (2001) (certification declined); 7 Fed. Appx. 97
(2d Cir. 2001).
Darby v. Compagnie Nat’l, 13 Fed. Appx. 37 (2d Cir. 2001); 96 N.Y.2d 343
(2001); 13 Fed. Appx. 37 (2001).
Friends of Van Cortland Park v. City of N.Y., 232 F.3d 324 (2d. Cir. 2000); 95
N.Y.2d 623 (2001).
Rosner v. Metro. Prop. and Liab. Ins. Co., 236 F.3d 96 (2d Cir. 2000); 96
N.Y.2d 475 (2001); 14 Fed. Appx. 123 (2001).
Shaffer v. Schenectady, 245 F.3d 41 (2d Cir. 2001); 96 N.Y.2d 271 (2001).
Huang v. Johnson, 251 F.3d 65 (2d Cir. 2001); 96 N.Y.2d 599 (2001); 274
F.3d 682 (2d Cir. 2001).
Allstate Ins. Co. v. Serio, 261 F.3d 143 (2d Cir. 2001); 98 N.Y.2d 198 (2002);
293 F.3d 95 (2d Cir. 2002).
Baker v. Health Mgmt., 264 F.3d 144 (2d Cir. 2001); 98 N.Y.2d 80 (2002);
298 F.3d 146 (2d Cir. 2002).
Murdza v. Zimmerman, 292 F.3d 328 (2d Cir. 2002); 99 N.Y.2d 375 (2003);
59 Fed. Appx. 416 (2d Cir. 2003).
Tri-State Employment Servs., Inc. v. Mountbatten Sur. Co., Inc., 295 F.3d 256
(2d Cir. 2002); 99 N.Y.2d 476 (2003); 328 F.3d 703 (2d Cir. 2003).
Mark A. Varrichio and Assocs. v. Chicago Ins. Co., 312 F.3d 544 (2d Cir.
2002); 328 F.3d 50 (2d Cir. 2003) (certification withdrawn); 100 N.Y.2d 527 (2003)
(certification withdrawn).
5
Golden v. Winjohn Taxi Corp., 311 F.3d 513 (2d Cir. 2002); 323 F.3d 185 (2d
Cir. 2003) (certification withdrawn); 99 N.Y.2d 636 (2003) (certification withdrawn).
Prats v. Port Authority, 315 F.3d 146 (2d Cir. 2003); 100 N.Y.2d 878 (2003);
350 F.3d 58 (2d Cir. 2003).
**Marsh v. Prudential Sec. Inc., 1 N.Y.3d 146 (2003) (answering question
from the Third Circuit).
N.Y. Univ. v. First Fin. Ins. Co., 322 F.3d 750 (2d Cir. 2003); sub nom First
Fin. Ins. Co. v. Jetco Contracting Corp., 1 N.Y.3d 64 (2003); sub nom N.Y. Univ. v.
First Fin. Ins. Co., 352 F.3d 653 (2d Cir. 2003).
Carney v. Phillippone, 332 F.3d 163 (2d Cir. 2003); 1 N.Y.3d 333 (2004); 368
F.3d 164 (2d Cir. 2004).
Krohn v. N.Y. Police Dep’t, 341 F.3d 177 (2d Cir. 2003); 2 N.Y.3d 329 (2004);
372 F.3d 83 (2d Cir. 2004).
Blue Cross and Blue Shield of N.J., Inc. v. Phillip Morris USA, Inc., 344 F.3d
211 (2d Cir. 2003); 3 N.Y.3d 200 (2004); sub nom Empire Healthchoice, Inc. v.
Philip Morris USA, Inc., 393 F.3d 312 (2d Cir. 2004).
Nicholson v. Scoppetta, 344 F.3d 154 (2d Cir. 2003); 3 N.Y.3d 357 (2004);
116 Fed. Appx. 313 (2d Cir. 2004).
Carvel Corp. v. Noonan, 350 F.3d 6 (2d Cir. 2003); 3 N.Y.3d 182 (2004).
McGrath v. Toys “R” Us, Inc., 356 F.3d 246 (2d Cir. 2004); 3 N.Y.3d 421
(2004); 409 F.3d 513 (2d Cir. 2005).
U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 369 F.3d 102 (2d Cir.
2004); 3 N.Y.3d 592 (2004); 395 F.3d 24 (2d Cir. 2005).
Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471 (2d Cir. 2004); 4
N.Y.3d 540 (2005).
State Farm Mut. Auto. Ins. Co. v. Mallela, 372 F.3d 500 (2d Cir. 2004); 4
N.Y.3d 313 (2005).
Regatos v. North Fork Bank, 396 F.3d 493 (2d Cir. 2005); 5 N.Y.3d 395
(2005); 431 F.3d 394 (2d Cir. 2005).
6
Country Wide Ins. Co. v. Nat’l R.R. Passenger Corp., 407 F.3d 84 (2d Cir.
2005); 5 N.Y.3d 728 (2005) (argued on January 4, 2006).
Stichting v. Schreiber, 407 F.3d 34 (2d Cir. 2005); 421 F.3d 124 (2d Cir. 2005)
(certification withdrawn); 5 N.Y.3d 820 (2005) (certification withdrawn).
King v. Fox, 418 F.3d 121 (2d Cir. 2005); 5 N.Y.3d 798 (2005).
Colavito v. New York Organ Donor Network, Inc., 438 F3d 214 (2d Cir.
2006); 8 NY3d 43 (2006); 486 F3d 78 (2d Cir. 2007)
Morris v. Schroeder Capital Mgt. Intl., 445 F3d 525 (2d Cir. 2006); 7 NY3d
616 (2006); 481 F3d 86 (2d Cir. 2007)
Policano v. Herbert, 453 F3d 75 (2d Cir. 2006); 7 NY3d 588 (2006); 507 F3d
111 (2d Cir. 2007)
Rosenberg v. MetLife, Inc., 453 F3d 122 (2d Cir. 2006); 8 NY3d 359 (2006);
493 F3d 290 (2d Cir. 2007)
White Plains Coat & Apron Co., Inc. v. Cintas Corp., 460 F3d 281 (2d Cir.
2006); 8 NY3d 422 (2007); 228 Fed. Appdx 126 (2d Cir. 2007)
Highland Capital Mgmnt, L.P. v. Schneider, 460 F3d 308 (2d Cir. 2006); 8
NY3d 406 (2007); 485 F3d 690 (2d Cir. 2007)
Thyroff v. Nationwide Mut. Ins. Co., 460 F3d 400 (2d Cir. 2006); 8 NY3d 283
(2007); 493 F3d 109 (2d Cir. 2007)
City of Syracuse v. Onondaga County, 464 F3d 297 (2d Cir. 2006); 9 NY3d
888 (2007) (certification withdrawn)
Benesowitz v. Metropolitan Life Ins. Co., 471 F3d 348 (2d Cir. 2006); 8 NY3d
661 (2007), rearg denied 9 NY3d 913 (2007); 514 F3d 174 (2d Cir. 2007)
Reliance Ins. Co. v. PolyVision Corp., 474 F3d 54 (2d Cir. 2007); 9 NY3d 52
(2007); 292 Fed. Appdx 106 (2d Cir. 2008)
ITC Ltd. v. Punchgini, Inc., 482 F3d 135 (2d Cir. 2007); 9 NY3d 467 (2007);
518 F3d 159 (2d Cir. 2008)
O’Mara v. Town of Wappinger, 485 F3d 693 (2d Cir. 2007); 9 NY3d 303
(2007); 518 F3d 151 (2d Cir. 2008)
7
Ehrenfeld v. Bin Mahfouz, 489 F3d 542 (2d Cir. 2007); 9 NY3d 501 (2007);
518 F3d 102 (2d Cir. 2008)
Rivkin v. Century 21 Teran Realty LLC, 494 F3d 99 (2d Cir. 2007); 10 NY3d
344 (2008); 535 F3d 105 (2d Cir. 2008)
Pachter v. Bernard Hodes Group, Inc., 505 F3d 129 (2d Cir. 2007); 10 NY3d
609 (2008), rearg denied 11 NY3d 751 (2008); 541 F3d 461 (2d Cir. 2008)
Reddington v. Staten Isl. University Hosp., 511 F3d 126 (2d Cir. 2007); 11
NY3d 80 (2008); 543 F3d 91 (2d Cir. 2008)
Briggs Ave. LLC v. Ins. Corp. of Hanover, 516 F3d 42 (2d Cir. 2008); 11
NY3d 377 (2008); 550 F3d 246 (2d Cir. 2008)
Amalfitano v. Rosenberg, 533 F3d 117 (2d Cir. 2008); 12 NY3d 8 (2009); 572
F3d 91 (2d Cir. 2009)
Jaramillo v. Weyerhaeuser Co., 536 F3d 140 (2d Cir. 2008); 12 NY3d 181
(2009); 570 F3d 487 (2d Cir. 2009)
Israel v. Chabra, 537 F3d 86 (2d Cir. 2008); 12 NY3d 158 (2009); 601 F3d 57
(2d Cir. 2010)
Fuentes v. Bd. of Educ. of City of New York, 540 F3d 145 (2d Cir. 2008); 12
NY3d 309 (2009); 569 F3d 46 (2d Cir. 2009)
City of New York v. Smokes-Spirits.com, Inc., 541 F3d 425 (2d Cir. 2008),
revd 559 US 1 (2010); 12 NY3d 616 (2009)
Koehler v. Bank of Bermuda Ltd., 544 F3d 78 (2d Cir. 2008); 12 NY3d 533
(2009); 577 F3d 497 (2d Cir. 2009)
Matter of Peaslee, 547 F3d 177 (2d Cir. 2008); 13 NY3d 75 (2009); 585 F3d
53 (2d Cir. 2009)
Trust for Certificate Holders of Merrill Lynch Mtge. Invs., Inc. Mtge. Pass-
Through Certificates, Series 1999-C1 v. Love Funding Corp., 556 F3d 100 (2d Cir.
2009); 13 NY3d 190 (2009); 591 F3d 116 (2d Cir. 2010)
Runner v. New York Stock Exchange, Inc., 568 F3d 383 (2d Cir. 2009); 13
NY3d 599 (2009); 590 F3d 904 (2010)
8
Zakrzewska v. New School, 574 F3d 24 (2d Cir. 2009); 14 NY3d 469 (2010);
620 F3d 168 (2d Cir. 2010)
Kuhne v. Cohen & Slamowitz, LLP, 579 F3d 189 (2009); 14 NY3d 786 (2010)
(certification withdrawn)
Kirschner v. KPMG LLP, 590 F3d 186 (2d Cir. 2009); 15 NY3d 446 (2010);
626 F3d 673 (2d Cir. 2010)
Kramer v. Phoenix Life Ins. Co., 15 NY3d 539 (2010)
**Teachers’ Retirement Sys. of La. v. PricewaterhouseCoopers LLP, 998 A2d
280 (Del. 2010); 14 NY3d 796 (2010); 11 A3d 228 (Del. 2011)
City of New York v. Golden Feather Smoke Shop Inc., 597 F3d 115 (2d Cir.
2010); 15 NY3d 799 (2010) (certification withdrawn)
Giordano v. Market America, Inc., 599 F3d 87 (2d Cir. 2010); 15 NY3d 590
(2010); 634 F3d 183 (2d Cir. 2011)
Penguin Group (USA) Inc. v. Amer. Buddha, 609 F3d 30 (2d Cir. 2010); 16
NY3d 295 (2011); 640 F3d 497 (2d Cir. 2011)
Commodity Futures Trading Commn. v. Walsh, 618 F3d 218 (2d Cir. 2010);
17 NY3d 162 (2011); 658 F3d 194 (2d Cir. 2011)
Bessemer Trust Co., N.A. v. Branin, 618 F3d 76 (2d Cir. 2010); 16 NY3d 549
(2011); 675 F3d 130 (2d Cir. 2012)
NML Capital v. Republic of Argentina, 621 F3d 230 (2d Cir. 2010); 17 NY3d
250 (2011); 435 Fed. Appdx 41 (2d Cir. 2011)
*Joseph v. Athanasopoulos, 648 F3d 58 (2d Cir. 2011); 18 NY3d 946 (2012)
(on reconsideration of prior order accepting certification [17 NY3d 848 (2011)],
certification declined)
Licci v. Lebanese Can. Bank, SAL, 673 F3d 50 (2d Cir. 2012); 20 NY3d 327
(2012); 732 F3d 161 (2d Cir. 2013)
Schlessinger v. Valspar Corp., 686 F3d 81 (2d Cir. 2012); 21 NY3d 166
(2013); 723 F3d 396 (2d Cir. 2013)
Gutierrez v. Smith, 692 F3d 256 (2d Cir. 2012); withdrawn by Second Circuit
by order dated 10/12/12 before COA decision on whether to accept certification
9
Commonwealth of Northern Mariana Islands v. Canadian Imperial Bank of
Commerce, 693 F3d 274 (2d Cir. 2012); 21 NY3d 55 (2013); 717 F3d 266 (2d Cir.
2013)
Barenboim v. Starbucks Corp., 698 F3d 104 (2d Cir. 2012); 21 NY3d 460
(2013); 549 Fed. Appdx 1 (2d Cir. 2013)
Georgitsi Realty, LLC v. Penn-Star Ins. Co., 702 F3d 152 (2d Cir. 2012); 21
NY3d 606 (2013); 745 F3d 617 (2d Cir. 2014)
Osterweil v. Bartlett, 706 F3d 139 (2d Cir. 2013); 21 NY3d 580 (2013); 738
F3d 520 (2d Cir. 2013)
Doe v. Guthrie Clinic, Ltd., 710 F3d 492 (2d Cir. 2013); 22 NY3d 480 (2014);
740 F3d 864 (2d Cir. 2014)
Cruz v. TD Bank, N.A., 711 F3d 261 (2d Cir. 2013); 22 NY3d 61 (2013); 742
F3d 520 (2d Cir. 2013)
Caronia v. Philip Morris USA, Inc., 715 F3d 417 (2d Cir. 2013); 22 NY3d 439
(2013); 748 F3d 454 (2d Cir. 2014)
Executive Plaza v. Peerless Ins. Co., 717 F3d 114 (2d Cir. 2013); 22 NY3d
511 (2014); 745 F3d 615 (2d Cir. 2014)
Isabella v. Hallock, 733 F3d 384 (2d Cir. 2013); 22 NY3d 788 (2014); 749
F3d 135 (2d Cir. 2014)
Quaker Hills, LLC v. Pacific Indem. Co., 728 F3d 171 (2d Cir. 2013); 22
NY3d 1152 (2014) (certification withdrawn)
**Quadrant Structured Prods. Co., Ltd v. Vertin, 106 A3d 992 (Del. 2013); 23
NY3d 549 (2014); 93 A3d 654 (Del. 2014)
In re Thelen LLP, 736 F3d 213 (2d Cir. 2013); 24 NY3d 16 (2014); 762 F3d
157 (2d Cir. 2014)
In re Coudert Bros., F3d (2d Cir. Dec. 2, 2013); 24 NY3d 16 (2014); 574
Fed. Appdx 15 (2d Cir. 2014)
Motorola Credit Corp. v. Standard Chartered Bank, 740 F3d 108 (2d Cir.
2014); 24 NY3d 149 (2014); 771 F3d 160 (2d Cir. 2014)
10
Tire Engineering and Distribution LLC v. Bank of China Ltd., 740 F3d 108
(2d Cir. 2014); 22 NY3d 1152 (2014) (certification withdrawn)
Ramos v. SimplexGrinnell LP, 740 F3d 852 (2d Cir. 2014); 24 NY3d 143
(2014); 773 F3d 394 (2d Cir. 2014)
Nguyen v. Holder, 743 F3d 311 (2d Cir. 2014); 24 NY3d 1017 (2014)
Matter of Mary Santiago-Monteverde, 747 F3d 153 (2d Cir. 2014); 24 NY3d
283 (2014); 780 F3d 126 (2d Cir. 2015)
Schoenefeld v. State of New York, 748 F3d 464 (2d Cir. 2014); 25 NY3d 22
(2015)
Beardslee v. Inflection Energy, LLC, 761 F3d 221 (2d Cir. 2014); 25 NY3d
150 (2015), rearg denied 25 NY3d 1189 (2015); 798 F3d 90 (2d Cir. 2015)
Eric M. Berman, P.C. v. City of New York, 770 F3d 1002 (2d Cir. 2014); 25
NY3d 684 (2015); 796 F3d 171 (2d Cir. 2015)
Commonwealth of Pennsylvania Pub. Sch. Employees’ Retirement Sys. v.
Morgan Stanley & Co., Inc., 772 F3d 111 (2d Cir. 2014); 25 NY3d 543 (2015); __
F3d __ (2d Cir. Feb. 23, 2016)
Ministers & Missionaries Benefit Bd. v. Snow, 780 F3d 150 (2d Cir. 2015); 25
NY3d 935 (2015) (certification accepted); __ NY3d __ (Dec. 15, 2015) (first
certified question answered in the negative and second certified question not
answered as academic)
Beck Chevrolet Co., Inc. v. General Motors LLC, 787 F3d 663 (2d Cir. 2015);
25 NY3d 1057 (2015) (certification accepted)
**Matter of Viking Pump, Inc., __ A3d __ (Del. June 10, 2015); 25 NY3d
1188 (2015) (certification accepted)
Pasternack v. Laboratory Corporation of America Holdings, 807 F3d 14 (2d
Cir. 2015); __ NY3d __ (Dec. 15, 2015) (certification accepted)
*Certification Declined
**Certification from Court other than Second Circuit Court of Appeals
[Full text of §500.27 to be
reproduced by Counsel Press]
Appendix B
New York State Court of Appeals Rules of Practice
§500.27 — Discretionary Proceedings to Review Certified Questions from
Federal Courts and Other Courts of Last Resort
(a) Whenever it appears to the Supreme Court of the United States, any United
States Court of Appeals, or a court of last resort of any other state that
determinative questions of New York law are involved in a case pending
before that court for which no controlling precedent of the Court of Appeals
exists, the court may certify the dispositive questions of law to the Court of
Appeals.
(b) The certifying court shall prepare a certificate which shall contain the
caption of the case, a statement of facts setting forth the nature of the case
and the circumstances out of which the questions of New York law arise,
and the questions of New York law, not controlled by precedent, that may
be determinative, together with a statement as to why the issue should be
addressed in the Court of Appeals at this time.
(c) The certificate, certified by the clerk of the certifying court under its official
seal, together with the original or a copy of all relevant portions of the record
and other papers before the certifying court, as it may direct, shall be filed
with the clerk of the Court.
(d) The Court, on its own motion, shall examine the merits presented by the
certified question, to determine, first, whether to accept the certification, and
second, the review procedure to be followed in determining the merits.
(e) If the certification is accepted, the clerk of the Court shall request any
additional papers the Court requires for its review. The clerk of the Court
shall notify the parties of the time periods for filing of briefs, if any, and
calendaring of argument, if any, directed by the Court.
(f) If the constitutionality of an act of the Legislature of this state is involved in
a certification to which the State of New York or an agency is not a party,
the clerk of the Court shall notify the Attorney General in accordance with
the provisions of Executive Law § 71.
(g) When a determination is rendered by the Court with respect to the questions certified, it shall be sent by the clerk of the Court to the certifying court.