Jurisdictional Tidbits in Recent New York Court of Appeals' Decision

As reported in this prior post, the case of Pavlou v. City of New York raises some extremely interesting issues.  The seriously injured plaintiff commenced an action against the City of New York (the site's owner) under, among other statutes, Labor Law sec. 241(6) for violation of the specific State Industrial Code concerning maximum weight loads for cranes.  The City, in turn, commenced an action against the plaintiff's employer for contribution and indemnity based on its negligent maintenance of the crane; allegations existed that the crane had a crack in it before the accident.

The Majority and Dissenting opinions of the Appellate Division, First Department grapple with the jury verdict in which the jury found that the City's violation of the Labor Law was not a substantial cause of the accident but asserted 99% liability against the employer (a third-party plaintiff), even though the jury asserted no liability against the direct parties.

The New York Court of Appeals' held that the First Department did not abuse its discretion of reversing the trial court's order granting a new trial.  The first procedural tidbit is that the Court's review power over the certified question was restricted to whether the First Department abused its discretion in reversing the trial court's grant of a new trial.  Because the trial court granted a new trial based on its discretion and in the "interest of discretion," and the First Department reversed essentially in the interest of justice (even though it stated it did so on the law), the Court's review power is restricted to whether the First Department abused its discretion (the explanation of reviewability is best understood by reading Levo v.Greenwald, 66 NY2d 962, 963 (1985).

An additional jurisdiction point is that the Court could not review a prior nonfinal order, even if it necessarily affected the First Department Decision and Order below.  The appeal came up to the Court as a certified non-final question and, therefore, the Court did not have jurisdiction to review the prior nonfinal order (the best explanation for this conclusion is reading CPLR 5501(a)(1) ).