Non-Appealing Defendants Entitled to Benefit of Appealing Defendant's Successful Appeal

On September 6, 2019, Justice Grays of the Queens County Commercial Division issued a decision in Glaubach v. Slifkin, 2019 NY Slip Op. 33242(U), holding that non-appealing defendants were entitled to the benefit of an appealing defendant's successful appeal, explaining:

A non-appealing defendant may renew a motion to dismiss the complaint insofar as asserted against him because of an appellate court's decision to grant dismissal of the complaint as to a co-defendant. The grant of a dismissal to a co-defendant at the appellate level may form the basis of a renewal motion (in the Court below) by a nonappealing defendant on the ground of law of the case. The employee defendants contend that they are so similarly situated that the Appellate Order with respect to one defendant directly impacts the other defendant. The Court agrees that the employee defendants are now entitled to the dismissal of the remaining causes of action against them on the same grounds that the appealing defendants prevailed upon.

(Internal quotations and citations omitted).

It is risky to depend on a co-defendant's appeal to benefit your own defense, but as this decision shows, there are circumstances where a non-appealing defendant can get that benefit. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding the effect of a co-party's appeal.