Highly Skilled Appellate Attorneys

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Skilled Appellate Attorneys

Appeals present a unique opportunity and a unique challenge. Whether we are working to preserve a hard-fought victory or reverse an error in trial court decisions, the attorneys on Phillips Lytle’s Appellate Practice Team are distinguished in their ability to represent our clients effectively before state and federal appellate courts.

Within the last six years alone, we have served as counsel of record on over 90 appeals to the Appellate Division of the New York State Supreme Court, with cases across all four Judicial Departments, and on 17 appeals to the United States Court of Appeals for the Second Circuit. During that time, our attorneys have also briefed and argued four appeals before the New York Court of Appeals, New York State’s highest court.

Our Appellate attorneys share a fierce commitment to our clients and their causes. An appeal is more than an academic exercise, and we understand the importance of an appeal to our clients. Our clients know they can depend on us to recognize the nuances of their cases, identify and distill all of the legal issues, and advance those issues in the most persuasive manner.

Phillips Lytle Appellate Expertise

Our lawyers have expertise not only in appellate advocacy, but in appellate jurisdiction, practice and procedure. Each is a highly skilled written and oral advocate, and has successfully briefed and argued multiple appeals. Many members of our team started their careers by clerking for state and federal appeals courts, giving them a keen understanding of how those courts operate and what they find compelling.

Phillips Lytle’s Appellate attorneys are often called upon by lawyers from other firms to consult and assist with pending appeals. Members of our team have also served as appellate consultants, helping trial counsel from other firms ensure that their appellate argument is fully preserved and properly framed during trial. Whatever our role, at trial or in appeals court, we have the experience, knowledge and advocacy skills to maximize our clients’ chances of success before the appellate courts.

Industry Recognition

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Phillips Lytle Appellate Representation

Matter of Nonhuman Rights Project, Inc. v. Breheny (New York Court of Appeals): Successfully obtained affirmance from the Appellate Division, First Department and the New York Court of Appeals following dismissal of petition for writ of habeas corpus filed on behalf of an elephant residing at the Bronx Zoo. The firm represented the Wildlife Conservation Society, which operates the Bronx Zoo. The five-to-two decision by the Court of Appeals established a uniform rule in New York State that nonhuman animals are not entitled to habeas corpus relief because they are not “persons.”
Matter of Chavez v. Occidental Chemical Corp. (New York Court of Appeals): Upon an unsettled question of law certified by the Second Circuit Court of Appeals, the Firm successfully argued that a putative class action against a chemical manufacturer by plaintiffs claiming tortious exposure was time-barred. The decision established that New York recognizes cross-jurisdictional tolling until it is no longer objectively reasonable for absent class members to rely upon the putative class action to vindicate their rights.
Matter of Birjukow v. Niagara Coating Services, Inc. (Fourth Department): Successfully obtained reversal of a Supreme Court decision that denied summary judgment to the plaintiff, in suit seeking to recover on promissory notes and guarantees. The Appellate Division rejected the defense of “economic duress” for lacking sufficient evidentiary support, and thereby re-affirmed that a defendant cannot raise a triable issue of fact through conclusory, unsubstantiated and internally inconsistent evidence.
Matter of Amalfi, Inc. v. 428 Co., Inc. (Fourth Department): Successfully obtained reversal of a Supreme Court decision to grant summary judgment for the defendant in a plaintiff’s suit seeking to enforce contractual right of first refusal and established the rule of tax estoppel, which prevents parties from taking a position in litigation that is contrary to one taken in a tax return.
Matter of P. & E. T. Foundation (Fourth Department): Represented the attorney trustee in an appeal of denial of preliminary injunction, obtaining preliminary injunction from the Appellate Division that maintained the attorney trustee’s position pending final resolution of the appeal, before the decision of the Surrogate’s Court was ultimately affirmed on grounds of irreparable harm with the Presiding Justice dissenting in favor of reversal.
Matter of Board of Managers of French Oaks Condominium v. Town of Amherst (New York Court of Appeals): Successfully defended the Town of Amherst’s assessment of condominium property for real property tax purposes and established the cardinal rule that an appraisal should be disregarded in a tax certiorari proceeding if a party’s appraiser fails to adequately set forth the facts, figures and calculations supporting that appraiser’s conclusions.
Salerno v. City of Niagara Falls, et. al. (United States Court of Appeals for the Second Circuit): Successfully defended three individual claims and a class action for personal injuries and property damages arising out of allegations that chemicals supposedly migrated from an adjacent and previously remediated landfill under agency supervision, that such migration was caused by the negligence of the firm’s client, and that such migration resulted in exposures that caused the alleged personal injuries and property damages, and obtained dismissal, affirmed by the appellate court, on grounds the allegations were neither plausibly nor sufficiently pleaded.
Matter of Massaro v. Palladino (Fourth Department): Holding invalid purported amendments to multiemployer pension and welfare plans established under the Labor Management Relations Act.
National Fuel Gas Supply Corp. v. Schueckler, 35 N.Y.3d 297 (2020); National Fuel Gas Supply Corp. v. Gurov, 185 A.D.3d 1481 (4th Dep’t 2020); and National Fuel Gas Supply Corp. v. Oprea, 185 A.D.3d 1481 (4th Dep’t 2020): Successfully represented our client in connection with appeals arising out of condemnation proceedings under New York’s Eminent Domain Procedure Law that were premised upon Federal Energy Regulatory Commission’s issuance of a Certificate of Public Convenience and Necessity (which landowners had challenged as insufficient to permit the taking of their properties).
Levin v. City of Rochester, 203 A.D.3d 1540 (3d Dep’t 2022): Obtained an order compelling the City of Rochester to produce the termination notice sent to a City employee, which had been improperly withheld in discovery. We successfully defended the appeal from that order, resulting in affirmance.
Matter of Champlain Centre North LLC v. Town of Plattsburgh, 165 A.D.3d 1440 (3d Dep’t 2018): Obtained judgment after trial, reducing tax assessments on commercial property located in the Town of Plattsburgh to the amounts sought by the property owner. Also successfully defended that verdict on appeal and obtained affirmance of that judgment.
Ferland v. GMO Renewable Resources LLC, 105 A.D.3d 1158 (3d Dep’t 2013): Obtained an order granting summary judgment to a landowner who leased recreational property to fish and game club and was subsequently sued by an injured snowmobiler, based on immunity under New York’s recreational use statute. Also successfully briefed and argued the appeal resulting in affirmance of that order.
Saturn Club v. City of Buffalo, 12 A.D.3d 1084 (4th Dep’t 2004): Obtained judgment after trial, reducing tax assessments on commercial property located in the City of Buffalo to the amounts sought by the property owner. Also successfully briefed and argued the appeal that resulted in affirmance of that order, wherein the Appellate Division refused to disturb the referee’s determination that the analysis by the City’s appraiser was “so damaged by cross-examination that he placed ‘no reliance on his valuation analysis and conclusions.’”
United Union of Roofers, Waterproofers and Allied Workers Local No. 210 v. A.W. Farrell & Son, Inc., 547 Fed. Appx. 17 (2d Cir. 2013): Successfully briefed and argued the appeal that resulted in affirmance of trial court judgment dismissing ERISA claims alleged by Union against employer and individual owners.
Ficel Transport, Inc. v. State, 209 A.D.3d 1153 (3d Dep’t 2022): Successfully advocated on behalf of ten former members of a group self-insurance trust against the New York State Workers’ Compensation Board’s construction of a most-favored nations clause in those former members’ contract with the Board. We obtained reversal of the award of summary judgment to the Board and those former members’ claim against the Board for money damages.
Matter of Miranda Holdings, Inc. v. Town of Orchard Park, 206 A.D.3d 1662 (4th Dep’t 2022): Obtained affirmance of a Trial Court Order that invalidated a local zoning ordinance because it was enacted absent compliance with the requirements of the New York State Environmental Quality Review Act (SEQRA).
Buffamante Whipple Buttafaro, Certified Public Accountants, P.C. v. Dawson, 118 A.D.3d 1283 (4th Dep’t 2014): Successfully advocated on behalf of an accounting firm for reversal of Trial Court Orders that had: (1) erroneously awarded summary judgment to a competing accountant on causes of action that alleged unfair competition and tortious interference with contractual relations and (2) incorrectly applied the law concerning privileges and trade secrets in denying a motion to compel disclosure.
Matter of Robida v. Ziemba, 92 A.D.3d 1247 (4th Dep’t 2012): Obtained affirmance of a Trial Court Order that had denied a CPLR Article 78 petition that had challenged the termination of the employment of a municipal police officer on the ground that the petition was untimely commenced.
Spaulding Lake Club, Inc. v. Jiang, 78 A.D.3d 1668 (4th Dep’t 2010): Successfully advocated on behalf of a homeowners’ association for affirmance of the award of an injunction against a homeowner member who made exterior modifications to his home without the approval of the association’s board of directors, in violation of real property covenants that governed the association’s members.