Our appellate lawyers have handled hundreds of appeals and oral arguments on the state and federal levels including the New York State Appellate Divisions, the New York State Court of Appeals, the Delaware Supreme Court, and the United States Court of Appeals for the Second Circuit, among other appellate venues, as well as petitions to the United States Supreme Court. Our team has substantial trial and appellate experience built over decades in private practice and as in-house counsel, as Assistant District Attorneys and Assistant U.S. Attorneys, and in other government positions.
Practice chair Patrick McCormick has built a reputation as a strategic and talented appellate attorney over nearly three decades in the field. As Dean of the Suffolk Academy of Law, the educational arm of the Suffolk County Bar Association, McCormick has spearheaded the continuing education of thousands of New York lawyers, requiring him to stay ahead of the latest legal updates, policy changes, and trends on a broad range of legal topics. He has argued countless appeals, including three at the New York State Court of Appeals – the state’s highest court – and is a past Chair of the Suffolk County Bar Association’s Appellate Practice Committee. McCormick’s insight and experience uniquely qualify him to handle appeals on a wide variety of issues, and his colleagues across the legal profession routinely turn to him for appellate guidance at all stages of litigation.
We welcome inquiries from potential appellants and respondents seeking assistance with an appeal, trial counsel looking for an appellate partner throughout the progression of trial to ensure the proper preservation of issues for eventual appellate review, and attorneys looking for critical appellate experience to benefit their clients in the aftermath of a trial or motion.
Read highlights of our appellate experience in these featured decisions.
- Cusimano v. Schnurr, 26 N.Y.3d 391, 23 N.Y.S.3d 137 (2015) – One of several cases Patrick McCormick has argued before the New York Court of Appeals, this appeal concerned issues of applicability of the Federal Arbitration Act and waiver of the right to arbitrate.
- Worldcare Intl., Inc. v. Kay, 119 A.D.3d 554, 989 N.Y.S.2d 495 (2d Dep’t 2014) – This appeal stemmed from a thorny fact pattern and a Complaint with over 20 causes of action. The trial court dismissed several of our clients’ causes of action against former employees and related parties concerning breach of contract, tortious interference, breach of fiduciary duty, and diversion of corporate opportunity allegations. On appeal, the Court reversed the dismissal of several of these causes of action.
- Rodeo Family Enters., LLC v. Matte, 99 A.D.3d 781, 952 N.Y.S.2d 581 (2d Dep’t 2012) – The issues stemming from this complicated fact pattern included accrual of accounting malpractice claims and application of the continuous representation doctrine.
- Halasz v. Dean, 203 A.D.2d 327, 610 N.Y.S.2d 299 (2d Dep’t 1994). The client appealed denial of a summary judgment motion in an action to recover an instrument for payment. The Appellate Division held that evidence of an oral agreement regarding repayment would not be enforced and was barred by the parol evidence rule.
Land Use; Fair Housing
- Safe Harbor Retreat LLC v. Town of East Hampton, New York, 629 Fed.Appx. 63 (2d Cir. 2015) – We represented the owner/operator of a residential retreat for individuals recovering from drug and alcohol addiction in a case concerning abuse of power by a local municipality and its Zoning Board of Appeal with respect to violations of the Americans with Disabilities Act and the Fair Housing Act. Issues concerned ripeness, reasonable accommodation, special permits, and defining the functional equivalent of a family. We also filed a petition for certiorari with the U.S. Supreme Court in connection with this critical land use case.
Wills, Trusts & Estates
- McCarthy v. Kaminski, 131 A.D.3d 950, 15 N.Y.S.3d 892 (Mem) (2d Dep’t 2015) – This appeal from a decree of the Suffolk County Surrogate’s Court dismissing the Complaint against two defendants concerned the existence of a valid inter vivos gift (the donor’s intent, actual or constructive delivery, and the donee’s acceptance) in a case involving videotaped testimony of the decedent.
- Matter of Jones, 47 A.D.3d 931, 851 N.Y.S.2d 216 (2d Dep’t 2008) – This Second Department appeal concerned the admission of a lost will to probate and the preclusion of testimony of nonparty witnesses.
Negligence and Personal Injury
- Fargione v. Chance, 154 A.D.3d 713, 62 N.Y.S.3d 444 (2d Dep’t 2017) – The trial court had dismissed our personal injury client’s case against the owner and operator of the vehicle she was riding in (Vehicle 1) at the time of an accident. CMM argued on appeal that while the driver of the other car (Vehicle 2) may have largely contributed to the crash, that did not absolve the owner and operator of Vehicle 1 of the burden to show they had not also played a role. The Second Department agreed and reversed the decision below.
- Hassan v. Montuori, 99 N.Y.2d 348, 786 N.E.2d 25 (2003) – Christine Malafi argued an appeal relating to the granting of a motion for summary judgment to defendant co-owners of a car, concluding that as a statutory owner of a car, the plaintiff could not maintain an action against the co-owner defendants. The Court of Appeals reversed, holding that the plaintiff was not precluded from bringing a N.Y. Veh. & Traf. Law § 388 claim against other statutory owners, and the fact that her husband operated the vehicle with the consent of the co-owners was sufficient to bring her within the protection of the statute. The case was significant for creating new law.
- Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 790 N.E.2d 772 (2003) – Another case argued by Christine Malafi at the Court of Appeals, the case concerned a summary judgment motion in an action to recover damages for injuries sustained while fighting a fire on the defendant’s property. The case turned on issues of two uncured code violations pertaining to the fire suppression system and the testimony of a fellow firefighter.
- PHH Mtge. Corp. v. Ferro, Kuba, Mangano, Sklyar, Gacovino & Lake, P.C., 113 A.D.3d 831, 979 N.Y.S.2d 536 (Mem) (2d Dep’t 2014) – We prevailed on appeal on behalf of our client, a landlord, achieving reversal of denial of a prior summary judgment motion. The Second Department found that we had established our client’s prima facie entitlement to judgment as a matter of law by demonstrating that the defendant breached its sub-lease by remaining in occupancy beyond the termination date. The matter returned to the Supreme Court for determination of damages, interest, and counsel fees.
- Papa v. 24 Caryl Ave. Realty Co., 23 A.D.3d 361, 804 N.Y.S.2d 112 (2d Dep’t 2005) – After the Supreme Court granted the summary judgment motion of our client (a third-party plaintiff) in a mortgage foreclosure action, the third-party defendant appealed. McCormick argued that the decision below was proper, and the Second Department affirmed.
- Loftain v. Gabis, 6 A.D.3d 396, 774 N.Y.S.2d 368 (Mem) (2d Dep’t 2004) – McCormick successfully argued for dismissal of the defendant’s appeal in this action for specific performance of a binder agreement in connection with the purchase of real property.
- Morton’s of Chicago/Great Neck v. Crab House, 297 A.D.2d 335, 746 N.Y.S.2d 317 (2d Dep’t 2002) – Landlord brought an action against the tenant, seeking a declaration that its acceptance of the tenant’s offer to terminate the lease was valid, as well as holdover use and occupancy payments. The trial court granted the motion, and order was affirmed on appeal.
- 428 Camera Corp. v. Tandy Corp., 272 A.D.2d 72, 707 N.Y.S.2d 101 (1st Dep’t 2000) – The First Department affirmed the trial court’s order granting summary judgment in favor of the main tenant of a commercial building. The case concerned whether the main tenant or landlord was responsible for maintaining, replacing, or repairing the heating system of the leased premises, as well as issues regarding constructive eviction.
- Pines at Setauket v. Retirement Mgt. Group, 246 A.D.2d 528, 667 N.Y.S.2d 762 (2d Dep’t 1998) – An appeal of a motion decided in our client’s favor with respect to leave to enter a deficiency judgment against personal guarantors of a loan was denied when McCormick persuasively demonstrated that the guarantors would not be prejudiced by amendment of judgment of foreclosure and sale to allow deficiency liability.
- People v. Arroyo, 77 N.Y.2d 947, 573 N.E.2d 569 (1991) – One of McCormick’s first arguments before the Court of Appeals, the case concerned a defendant found guilty of a gunpoint robbery of a taxicab driver. The issue on appeal was whether the trial court had committed reversible error in precluding the defendant from calling a particular witness to testify. On behalf of the Bronx County District Attorney’s Office, McCormick successfully argued for the decision below to be affirmed.
- People v. Boston, 75 N.Y.2d 585, 555 N.Y.S.2d 27 (1990) – McCormick’s first argument before the Court of Appeals, this matter concerned the criminal defendant’s waiver of indictment.