The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY
Plaintiffs have moved under 28 U.S.C. § 1292(b) for a modification of this court's order of September 11, 1992, so as to allow an interlocutory appeal from the portion of that order denying plaintiff's motion for summary judgment on the issue of the applicability of the Rule against Perpetuities to a landlord's option to repurchase a leasehold. For the following reasons that motion is granted.
28 U.S.C. § 1292(b) permits a district judge to certify an interlocutory appeal if there is "a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."
"Where the effect of a district court's order, if not reviewed, is the death knell of the action, review should be allowed." Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2d Cir.), cert. denied 87 S. Ct. 1487, 386 U.S. 1035, 18 L.Ed,2d 598 (1966). In the instant controversy, it appears that unless an interlocutory appeal is allowed, a death knell will toll for plaintiffs cause of action.
To qualify, plaintiff must show that (a) there is a controlling question of law, (b) a substantial ground for difference of opinion, and (c) that the ultimate termination of the litigation may be advanced substantially.
Defendants here, citing this court's recent decision in Shipping Corp. of India v. American Bureau of Shipping, 752 F. Supp. 173 (S.D.N.Y. 1990), argue that in order for a question of law to be deemed "controlling" it must affect a wide spectrum of cases. Defendants' assertion is incorrect. In Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990) this Circuit expressly disagreed with the instant defendants' construction of the "controlling law" requirement.
The Klinghoffer court further held that for a question to involve "substantial grounds for difference of opinion" it is enough if the issues are "difficult and of first impression." 921 F.2d at 25. Clearly, the instant controversy satisfies that criterion.
As to the third prong, this court agrees that determination of the question of law involved would significantly advance the ultimate termination of the lawsuit. If this court"s decision is affirmed, then the continuance of the litigation may cease as the plaintiff's remaining claims may not be worth pursuing economically. To proceed with plaintiff's remaining claims may not be a wise use of scarce judicial resources since affirmation would probably end the case. Thus decision now on the Rule Against Perpetuities question may materially advance termination of the instant case one way or another.
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