Albany Law Review

A student-run journal that publishes critical and analytical articles written by judges, lawyers, and law school professors, as well as notes and comments on legal topics written by Law Review members and other Albany Law School students. Academic and pro

Articles from Vol. 74, No. 2, Winter

An Empirical Study of Dissent at the Supreme Court, Appellate Division, Third Department
I. INTRODUCTION An empirical study of a court can reveal a great deal. Courts must decide the cases before them and, in doing so, the judges who comprise those courts cannot possibly avoid weighing several, often competing, considerations in order...
An Empirical Study of the Vindicated Dissents of the New York Appellate Division, Fourth Department, from 2000 to 2010
To be able to write an opinion solely for oneself, without the need to accommodate, to any degree whatever, the more-or-less-differing views of one's colleagues; to address precisely the points of law that one considers important and no others; to...
A Practitioner's Continued Uncertainty: Disclosure from Nonparties
Prior to a 1984 amendment to New York's Civil Practice Law and Rules ("CPLR") 3101(a)(4), a party seeking discovery from a nonparty was required to show "special circumstances." (1) Notwithstanding the removal of that requirement, some Departments...
A Prevailing Party Can Still Be a "Sore" Winner on Appeal under CPLR 5501(a)(1); Raising Alternative Arguments That Necessarily Affect the Final Judgment to Ensure Winning on Appeal
There's an old sporting adage in competition that says, basically, don't be a "sore loser"; however, there is no such advice for winners. This appears to hold true in New York civil litigation. After a losing party has just expended a significant amount...
Closing the Loophole: Shea's Law and DWI Blood Draws in New York State under Vehicle and Traffic Law (Section) 1194(4)(a)(1)
Every year in New York State, drunk drivers are responsible for approximately 9000 accidents and 400 deaths. (1) On July 13, 2010, New York State took another step to reduce this troublesome statistic with the passage of "Shea's Law." (2) This legislation,...
Dissenting: Why Do It?
A woman bound for a honeymoon cruise made some last-minute purchases at a pharmacy--birth control pills and pills for seasickness. The pharmacist was bemused. "It's none of my business, lady," he said, "but if it makes you sick, why do it?" Dissenting...
Dissent & Vindication in the Departments: An Empirical Study
Last year's inaugural issue of New York Appeals featured a section devoted to the New York State Court of Appeals. Beginning with a comparison between the Chief Judge Kaye and the Chief Judge Lippman courts, (1) the section then profiled each judge...
Lost Profits for Breach of Contract: Would the Court of Appeals Apply the Second Circuit's Analysis?
"I coulda been a contender." --Marlon Brando (1) A party that establishes a breach of contract claim may recover benefit of the bargain damages to put it in the position it would have enjoyed had the contract not been breached. (2) Such damages...
New York Appeals: An Evolving Tradition
The Albany Law Review is delighted to present its second annual issue of New York Appeals. The goal of the New York Appeals issue is to elucidate emerging issues in appellate practice faced by judges on the bench, attorneys in practice, and professors...
New York State Class Actions: Make It Work - Fulfill the Promise
The purpose of this article is to demonstrate that New York's class action statute, Article 9 of the Civil Practice Law and Rules ("CPLR"), is underutilized and has been during its entire thirty-five-year history. This article identifies what types...
Pleading Fraud in New York: CPLR 3016(b)'s Heightened Pleading Standard and Why It's Important
I. INTRODUCTION For New York civil actions, the baseline standard for the content of all pleadings--often called the "notice" standard--is set forth in 3013 of the New York Civil Practice Law and Rules ("CPLR"). CPLR 3013 requires that "[s]tatements...
Press Freedom and Private People: The Life and Times (and Future) of Chapadeau V. Utica Observer-Dispatch
I. INTRODUCTION: THE ROOTS OF THE GROSS IRRESPONSIBILITY STANDARD IN LIBEL On a June night in 1971, a high school teacher in Utica, New York, was arrested for heroin possession, and a small revolution in the law of libel in the state of New York...
Quality in Numbers? the Dynamics of Decision-Making in the Second Department
The utility of dissenting opinions has long been the subject of debate amongst the bench and bar. Proponents urge that the dissenting opinion "safeguards the integrity of the judicial decision-making process," both "by keeping the majority accountable...
Recent Interpretations of the CPLR by New York Appellate Courts
To borrow an analogy from Charles Dickens, New York's Civil Practice Law and Rules CCPLR") might appropriately be described as the "tale of two faces." (1) Or perhaps the better allusion is to Robert Louis Stevenson's "Strange Case of Dr. Jekyll and...
State & Local Economic Sanctions: The Constitutionality of New York's Divestment Actions and the Sudan Accountability & Divestment Act of 2007
I. INTRODUCTION Economic sanctions, the deliberate, government-motivated withdrawal, or threat of withdrawal, "of customary trade or financial relations," are a foreign policy tool designed to isolate another country. (1) They can take multiple...
The Arbitration Fairness Act: Performing Surgery with a Hatchet Instead of a Scalpel?
Arbitration of employment disputes has become an increasingly controversial issue in recent years. Many plaintiff-side employment lawyers and other commentators have been intensely critical of predispute arbitration agreements. This groundswell of...
The Controversial Contradiction between Traditional Precedent and Recent Failure to Warn Jurisprudence in New York
I. INTRODUCTION It is axiomatic that an entity is ultimately responsible to adequately warn about any hazards associated with the use of a product it manufactures, sells, or distributes. However, what liability issues arise when a relatively safe...
The First Department: An Empirical Study of the Court at the Heart of New York City
First and foremost, a dissenting opinion serves the interests of the truth. (1) I. INTRODUCTION Attorneys and law students focus most of their study on majority opinions. Often, a dissenting opinion is quickly overlooked or ignored; however,...
The Truth Behind "Final and Binding" Arbitration: A Study of Vacated Arbitration Awards in the New York Appellate Division
I. INTRODUCTION Despite decades of federal and state jurisprudence favoring arbitration as an efficient, economical alternative to the courtroom, recent trends across the New York Supreme Court, Appellate Division suggest that arbitration may not...
What Do Grapes and Federal Lawsuits Have in Common? Both Must Be Ripe
More and more land use litigation is being brought in federal court as landowners, discouraged by their inability to get state courts to grant relief from what they perceive to be biased land use boards, attempt to focus the debate on violations of...