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Carothers to the COA (I missed it)February 21, 2018

Andrew Carothers, M.D., P.C. v Progressive Insurance Company, 2017 NY Slip Op 90794(U)(2d Dept. 2017)

For some reason, I missed this decision and order.  I read the Court of Appeals order stating that the court was without jurisdiction to grant leave.  Some of you may be unaware that the Court of Appeals may not grant leave to hear a civil cause that starts in the Civil Court, District Court, City Court, Justice Court, County Court (first or second departments), Town Court or Village Court.  On the criminal side, an appeal from one of the above Courts to the Appellate Term or County Court (upstate) bypasses the Appellate Division and goes to the Court of Appeals (if leave is granted).

I was unaware that following the Court of Appeals order, Carothers went back to the Second Department and sought leave to appeal.  Furthermore, I also was unaware that leave was actually granted.  This will mean that this matter will result in four published opinions.  Judge Sweeney, Appellate Term (it was not a U cite), Appellate Division (signed opinion) and now the Court of Appeals.

“ORDERED that the motion is granted, and the following question is certified to the Court of Appeals: Was the opinion and order of this Court dated April 5, 2017, properly made?

Questions of law have arisen, which, in our opinion, ought to be reviewed by the Court of Appeals (see CPLR 5713).”

Who would have thought.

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