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Morris v. Flaig

June 6, 2007


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


A. Facts

B. Procedural History

Before the Court is plaintiffs Elise Morris On November 12, 2002, plaintiffs filed the ("Morris") and Douglas Katsaros' instant action. In their amended complaint, ("Katsaros") (collectively "plaintiffs") filed on April 8, 2003, plaintiffs asserted petition for certification of an interlocutory eleven causes of action: (1) breach of implied appeal of this Court's October 3, 2005 and warranty of habitability, (2) constructive March 31, 2007 Orders in the above- eviction, (3) negligence, (4) gross negligence, captioned action. (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, (7) violation of New York City's Local Law 1, (8) nuisance, (9) intentional/fraudulent misrepresentation, (10) negligent misrepresentation, and (11) violation of the Plaintiffs brought the instant action RLPHRA, 42 U.S.C. §§ 4851-56.Plaintiffs against their former landlords, defendants sought relief in the form of rent abatement, Herbert Flaig and Marilyn Flaig (collectively, compensatory damages, punitive damages, "defendants"), alleging state claims, as well as and treble damages under the RLPHRA. a violation of the federal Residential Lead-Based Paint Hazard Reduction Act On February 27, 2004, defendants moved ("RLPHRA"), arising from a lead-paint for summary judgment as to all claims, and condition in their Brooklyn residence. plaintiffs cross-moved for partial summary judgment on March 2, 2004. On July 29, damages,*fn1 or, in the alternative, a new trial as 2005, Magistrate Judge Viktor V. Pohorelsky to the amount of punitive damages.

On April issued a Report and Recommendation 13, 2007, plaintiffs moved the Court to amend granting in part and denying in part its October 3, 2005 and March 31, 2007 defendants' motion for summary judgment. Orders, and to certify questions resolved in Specifically, plaintiffs' claims of constructive such orders for interlocutory appeal pursuant eviction, negligent infliction of emotional to 28 U.S.C. § 1292(b). Oral argument was distress, and nuisance were dismissed. The held on April 30, 2007.


Honorable John Gleeson adopted the Report and Recommendation in full on October 3, 2005.


A. Interlocutory Appeal

1. Standard of Review

This case was reassigned to the undersigned on February 10, 2006. From May 15, 2006 through May 30, 2006, a jury trial was held before this Court on the Pursuant to 28 U.S.C. § 1292(b), a district remaining claims. The jury (1) found court may certify an immediate appeal of an defendants liable for the plaintiffs' claims of interlocutory order if the court finds that the negligence and breach of the implied "order involves a controlling question of law warranty of habitability; and (2) declined to as to which there is substantial ground for find defendants liable as to plaintiffs' federal difference of opinion and that an immediate claim under the RLPHRA, as well as appeal from the order may materially advance plaintiffs' claims for gross negligence, the ultimate termination of the litigation." intentional infliction of emotion distress, However, "[d]istrict court judges have broad intentional misrepresentation, and negligent discretion to deny certification even where the misrepresentation. The jury awarded statutory criteria are met." SPL Shipping Ltd. $5,268.01 in compensatory damages, but v. Gujarat Cheminex, Ltd., No. 06-CV-15375 declined to award rent abatement damages. (KMK), 2007 WL 1119753 (S.D.N.Y. Apr. (Court Ex. 5.) The jury also determined that 12, 2007) (quoting Nat'l Asbestos Workers punitive damages were warranted against Med. Fund v. Philip Morris, Inc., 71 F. Supp. defendants. (Court Ex. 5.) After further 2d 139, 166 (E.D.N.Y. 1999) (stating that the deliberation, the jury awarded $110,000 in authority to deny certification, even where the punitive damages solely against defendant three statutory criteria are met, is Herbert Flaig. (Court Ex. 6.) "independent" and "unreviewable")) (additional citation omitted).

The Second disappear in the light of a complete and final the court to amend its order. See, e.g., Green, record,'" and that "Congress also sought to 2006 WL 3335051, at *2(finding defendants' assure the prompt resolution of knotty legal request for certification untimely following problems." Weber v. United States, -- F.3d --, two-month delay); Ferraro v. Sec'y of U.S. 2007 WL 1097077 (2d Cir. Apr. 13, 2007) Dept. of Health & Human Servs., 780 F. Supp. (quoting Koehler v. Bank of Bermuda Ltd., 978, 979 (E.D.N.Y. 1992) (holding that "there 101 F.3d 863, 864 (2d Cir. 1996)) (additional was no justification for plaintiff's delay in citations omitted). Therefore, interlocutory requesting certification" and "[m]oreover, appeal is "'a rare exception' where, in the plaintiff's two and a half month delay is an discretion of the district judge, it 'may avoid indication that the saving of time is of little protracted litigation.'" In re World Trade Ctr. concern in this case"). Similarly, the Seventh Disaster Site Litig., 469 F. Supp. 2d 134, 144 Circuit has held that a district court abused its (S.D.N.Y. 2007) (quoting Koehler, 101 F.3d discretion by granting § 1292(b) certification at 865-66 (2d Cir. 1996)). where the party seeking to appeal waited three months before making the request without Weir v. Propst, 915 F.2d 283, 287 (7th Cir. 1990)

2. Timeliness Providing a Proper Reason for the Delay

Under Section 1292(b), a party may (holding that "[t]he ten day limitation in appeal an order which has been certified for section 1292(b) is not to be nullified by interlocutory review within ten days after the promiscuous grants of motions to amend"). entry of the order. 28 U.S.C. ยง 1292(b). As in Green, Ferraro and Weir, this Court Neither Section 1292(b) nor Fed. R. Civ. P. finds that plaintiffs' request for Section 5(a), which governs petitions for permission 1292(b) certification of a question decided by to appeal, specify a time in which a party must summary judgment order nearly two years ago move for the order itself to be certified for is untimely. The Court therefore could interlocutory appeal. However, courts have decline to certify the October 3, 2005 Order held that any delay in seeking amendment and for interlocutory appeal on timeliness grounds certification "must be reasonable." Green v. alone. In any event, as set forth below, none City of New ...

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