The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiffs move for a certification of an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), of this Court's Opinion and Order dated June 12, 2006 ("Order"), granting Defendant's motion for summary judgment. For the reasons set forth below, Plaintiffs' Motion is DENIED.
The facts giving rise to this action are set forth in this Court's Order, with which familiarity is assumed. Plaintiff Claudia Estevez-Yalcin filed a complaint on behalf of herself and her two minor children against Samuel Toffel, The Children's Village, and Westchester County Health Care Corporation ("WCHCC"), alleging sexual abuse of her two children.
Plaintiffs alleged that Toffel, a volunteer at WCHCC and Children's Village, sexually assaulted the two children, and that Children's Village and WCHCC were negligent in their supervision and hiring of Toffel. On January 23, 2002, Judge Koeltl, to whom the case was originally assigned, entered a default judgment against Defendant Toffel, concluding that damages against Toffel would be assessed at trial. (Pls.' Notice of Mot. Ex. C.) On August 9, 2004, Judge Koeltl granted WCHCC's motion for summary judgment.*fn1 See Estevez-Yalcin v. Children's Village, 331 F. Supp. 2d 170 (S.D.N.Y. 2004). Thereafter, Children's Village moved for summary judgment, which the Court granted in an Opinion and Order on June 12, 2006. Estevez-Yelcin v. Children's Village, No. 01 Civ. 8784, 2006 WL 1643274 (S.D.N.Y. June 13, 2006).
Subsequent to this Court's Order granting Defendant summary judgment, Plaintiffs pursued a direct appeal to the Second Circuit Court of Appeals, only to withdraw their direct appeal upon discovery that the judgment was not final.*fn2 (Def.'s Mem. of Law in Opp'n to Pls.' Mot. Under 28 U.S.C. 1292(B) at 1.) After withdrawing their direct appeal, Plaintiffs petitioned this Court for certification of an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). Plaintiffs request that the Court certify the following question: "Did the District Court erred [sic] in concluding that summary judgment should be granted in connection with plaintiff's claim sounding in negligent retention and supervision of the pedophile, Samuel Toffel?" (Pls.' Reply Affirmation in Supp. of Mot. ¶ 39.)
Section 1292(b) provides that a district court may certify an immediate appeal of an interlocutory order if the court is "of the opinion that such order involves 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." 28 U.S.C. § 1292(b). "[D]istrict court judges have broad discretion to deny certification even where the statutory criteria are met." Nat'l Asbestos Workers Med. Fund v. Philip Morris, Inc., 71 F. Supp. 2d 139, 166 (E.D.N.Y. 1999) (stating that the authority to deny certification, even where the three statutory criteria are met, is "independent" and "unreviewable"); cf. Williston v. Eggleston, 410 F. Supp. 2d 274, 276-77 (S.D.N.Y. 2006) (citing, inter alia, 19 James Wm. Moore et al., Moore's Federal Practice, § 203.31, at 203-86-87 (ed. 1999) ("[I]n practice the courts treat the statutory criteria as a unitary requirement, and the decisions granting and discussing interlocutory appeals under 28 U.S.C. § 1292(b) uniformly cite all three of the elements as being present in any particular case.")).
Even if this Court certifies an interlocutory appeal, the Court of Appeals may decline to hear the appeal. See 28 U.S.C. § 1292(b); Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) ("The appellate court may deny the [interlocutory] appeal for any reason, including docket congestion." (footnote omitted)); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 313 F.3d 70, 81 (2d Cir. 2002) ("Upon entry of . . . an order [certifying interlocutory appeal], the court of appeals has the discretion to accept or decline jurisdiction.").
The Second Circuit has explained that "[i]t is a basic tenet of federal law to delay appellate review until a final judgment has been entered." Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996) (citing Coopers, 437 U.S. at 475); see also 28 U.S.C. § 1291. Indeed, the Court of Appeals has consistently emphasized that a district court is to "exercise great care in making a § 1292(b) certification." Westwood Pharm., Inc. v. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992); see also Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (noting that "the power [to grant an interlocutory appeal] must be strictly limited to the precise conditions stated in the law") (quoting Gottesman v. Gen. Motors Corp., 268 F.2d 194, 196 (2d Cir. 1959) (internal quotation marks omitted)). Thus, immediate appeals as provided for in section 1292(b) should be "a rare exception to the final judgment rule that generally prohibits piecemeal appeals." Koehler, 101 F.3d at 865. "[O]nly 'exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Klinghoffer, 921 F.2d at 25 (quoting Coopers, 437 U.S. at 475).
As noted above, to prevail on this motion, Plaintiffs must demonstrate that (i) there is a controlling question of law, (ii) about which there is a substantial difference of opinion, and (iii) an appeal would not prolong the litigation, but would terminate the lawsuit.
1. The Absence of a Controlling Question of Law On November 17, 2006, the Court heard oral argument on this Motion. At oral argument, Plaintiffs conceded that their petition presents no controlling question of law. Nonetheless, Plaintiffs maintain that it would not be an abuse of this Court's discretion to certify an interlocutory appeal, because after conducting an inquest on damages, Plaintiffs could appeal by right. Plaintiffs argue that it would be more efficient for this Court to grant them an immediate appeal, rather than requiring Plaintiffs to conduct an inquest on damages of Toffel, whom they perceive to be judgment proof.*fn3 There is no authority supporting Plaintiff's argument, and all relevant legal precedent suggests that certification of an interlocutory appeal is unwarranted in this case. Thus, Plaintiffs' argument for circumvention of the final judgment rule and certification of an ...