# Opposition Brief — Tinelli v. Redl

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1025%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 813

## Text

Supreme Court, U.S. |
FILED
5 ;
(gy JUN 4.9 d¢09
No. 99-1807
| CLERK |
IN THE :

Supreme Court of the United States

JOSEPH V. TINELLI, SR.,
Petitioner,
v.
FRANK E. REDL, et ail.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
Unrrep STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

DesorA A. PITMAN
CONWAY, FARRELL, CURTIN
& KELLY, P.C.
Attorneys for Respondent
63 Wall Street
New York, NY 10005-3001
(212) 785-2929

160441 @ Counsel Press LLC
(800) 274-3321 + (800) 359-6859

i
QUESTIONS PRESENTED

A. Did the Court of Appeals for the Second Circuit
properly decline to certify an unresolved question of state
common law to the highest court of the state and decide the
question, relying solely on lower court precedent and
decisions from other jurisdictions, and hold that under New
York law the question whether the failure to perfect an appeal
caused damages was a question of law for the Court and not
a question of fact for the jury?

B. By declining to certify an unresolved question of state
common law to the highest court of the state did the Court
of Appeals for the Second Circuit give rise to a conflict with
the decisions of this Court and other Circuit Courts
concerning the applicable principles for determining the
propriety of certification?

il

TABLE OF CONTENTS
Page

Questions POROGNINE .ociceccuddsacsanitieacess i

Tabte OF ComteeS occkdctivs teens ee ieee il

Reasons for Denying the Writ ................. 6

A. The Court of Appeals for the Second Circuit
properly declined to certify an unresolved
question of state common law to the highest
court of the state and decided the question,
relying solely on trial court precedent and
decisions from other jurisdictions, holding
that under New York law the question
whether the failure to perfect an appeal
caused damages was a question of law for
the Court and not a question of fact for
CO RNY. 2. cccctnkasédeeeenr cusses 6

B. By declining to certify an unresolved |
question of state common law to the highest
court of the state, the Court of Appeals for
the Second Circuit acted consistently with the
precedents set out by this Court and created
no conflict with the decisions of other Circuit
Courts concerning the applicable principles
for determining the propriety of certifying
SUG QUUMOME, os 6 60indcdhu eae asees ban 10

COROMNGEOM 6 a 6006kancseasb elena, 13

ili

TABLE OF CITED AUTHORITIES

Page
Cases:
Bank of New York v. Amoco Oil Co., 35 F.3d 643

CEE 6 bias Sed paw ia kuwt dees s 7
Bellotti v. Baird, 428 U.S. 132 (1976) ........... 9
Charles Reinhart Co. v. Winiemko, 444 Mich. 579,

513 N.W.2d 773 (Mich. 1994) ............... 8,9
City of Houston v. Hill, 482 U.S. 451 (1987) ..... 8
Dan Nelson Constr. Co. v. Nodland & Dickson, 2000

N.D. 61, 608 N.W.2d 267 (N.D. 2000) ........ 9
Envtl. Control Sys., Inc. v. Andrews, 301 Ill. App.

3d 612, 703 N.E.2d 1001 (Ill. App. Ct. 1998)

SLATED CEN Cea Sed RNS Ch hea ee cases 9
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ... 11
Henry v. Merck & Co., 877 F.2d 1489 (10th Cir.

ans ba vce ened ek dah ew wR h So 11
In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d

I I 0 aya ik 4's bed RAW 7

Katsaris v. Scelsi, 453 N.Y.S.2d 994 (Sup. Ct.
Es CONE ais haw dhe e ese dave aavess 8

iv

Cited Authorities

Klaxon C. v. Stentor Elec. Mfg. Co., Inc., 313 U.S.
er SEED 65 awk chastened

Lehman Bros. v. Schein, 416 U.S. 386 (1974) ....

Marshall v. Nacht, 172 A.D.2d 127, 569 N.Y.S.2d
DED Ge, SPE 5 6c cla cba Vache 808k

Nunez De Villavicencio v. Cerny, 662 F. Supp. 243
CRAM es SUE S etscn awa Gneeo canescens

Peckham vy. Continental Casualty Ins Co., 895 F.2d
eS oe Be ere Peer ee ore oe

Riordan vy. Nationwide Mut. Fire Ins. Co., 977 F.2d
ig Le Re rn peer remere Ter

Steeves v. Bernstein, Shur, Sawyer & Nelson, P.C.,
1998 Me. 210, 718 A.2d 186 (Me. 1998) ......

Sturgis v. Skokos, 335 Ark 41,977 S.W.2d 217 (Ark.
ROUGE dvi nada cede éts ee eas

Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114
CE Gk TI 6 ikskn cds eacliiva Wwe tiacs

West v. Am. Tel. & Tel. Co., 311 U.S. 223 (1940) ...

Page

Cited Authorities

Page
Statutes:
N.Y. Cow. Pome: 1, ae RO ccs oc ss ae 2
N.Y. Civ. Prac. L. @R: TOOMa) oo. cccneccucs 2
I, SC, Beas OP i ok lias Ca ]
Rules:
sepeias Coat Gate 15.30 i oe he 5
U.S. Ct. of App. 2nd Cir. Rule § 0.27 (1999) ..... 6

N.Y. Comp. Codes R. & Regs tit. 22 § 500.17 .... 6

l
STATEMENT OF THE CASE

Petitioner was retained by the Town of Pawling, New
York (the “Town”) as Chief Code Enforcement Officer
(“CEO”) in 1984. In December, 1988, the Town’s Board
voted to discharge Petitioner after five years of service.
Petitioner retained Respondent, a solo practitioner, in
connection with the Town’s action.

Respondent advised the Town that its discharge of
Petitioner violated the requirements of N.Y. Civ. Serv. L.
§ 75 (McKinney 1986) (“N.Y. Civ. Serv. L. §75”)!.
Thereafter, the Town served Petitioner with a Notice of
Hearing, Statement of Charges and an Amended Statement
of Charges. In March, 1989, two full days of hearings
concerning the Town’s charges against Petitioner were held
before Stein, an impartial arbitrator appointed by the Town
pursuant to N.Y. Civ. Serv. L. § 75.2 Respondent represented
Petitioner during these hearings.

In June, 1989, Stein issued his Opinion, Findings of Fact
and Recommendation finding Petitioner guilty of two charges
relating to his conduct toward women and one charge of
failing to enforce the Town Code and recommending that

1. N.Y. Civ. Serv. L. § 75(2) requires that a person against
whom removal or other disciplinary action is proposed receive
written notice thereof and be furnished with a copy of the charges
and be allowed at least eight days for answering the same in writing.

2. N.Y. Civ. Serv. L. § 75(2) provides in relevant part that
“[t]he hearing upon such charges shall be held by the officer or
body having the power to remove the person against whom such
charges are preferred, or by a deputy or other person designated by
such officer or body in writing for such purpose.”

2

Petitioner be discharged. The Town Board unanimously
adopted Stein’s recommendation and discharged Petitioner.

In July 1989, Respondent filed an Article 78 proceeding
(the “Article 78 proceeding”), essentially an appeal,’ seeking
to annul the Town’s discharge of Petitioner. The Article 78
proceeding was transferred to the Appellate Division of the
New York State Supreme Court at the Town’s request,
pursuant to N.Y. Civ. Prac. L. & R. 7804(g) (McKinney
1987) on October 18, 1989. The time to perfect the Article
78 proceeding expired in April, 1989. Respondent did not
perfect the Article 78 proceeding nor did Respondent seek
to enlarge the time in which to do so.

On April 18, 1996, petitioner commenced this action in
the United States District Court for the Southern District of
New York invoking that Court’s diversity jurisdiction to
recover damages against Petitioner,‘ inter alia, for legal
malpractice. After the conclusion of discovery, Respondent
moved for summary judgment asserting that Petitioner had
failed to state any claims upon which relief could be granted.
In support of that motion, Respondent admitted commencing
but not perfecting the Article 78 proceeding and admitted
that he did not move to enlarge the time to perfect the Article

3. An appeal pursuant to Article 78 is a special proceeding to
challenge, inter alia, “whether a determination was made in violation
of a lawful procedure, was affected by an error of law or was arbitrary
and capricious or an abuse of discretion, including abuse of
discretion as to the measure or mode of penalty or discipline
imposed.” N.Y. Civ. Prac. L. & R. 7803 (McKinney’s 1994).

4. Petitioner did appeal from that part of the District Court’s
Order that granted summary judgment in favor of co-defendant
Hankin, Hanig, Stall & Caplicki.

3

78 proceeding. Respondent argued that under the applicable
law, Petitioner would have been unsuccessful had the Article
78 proceeding been perfected. Accordingly, Respondent’s
failure to perfect the Article 78 proceeding did not cause
Petitioner to suffer any damages. For purposes of the
summary judgment motion, Respondent assumed, arguendo,
but did not concede that he had a duty to perfect the Article
78 proceeding.°

In a Report and Recommendation dated November 17,
1998, United States Magistrate Judge Douglas Eaton
recommended that summary judgment be granted to
Respondent holding that

the question of whether an appeal woul.’ have
been successful is a question of law — a question
to be decided by “review of the transcript and
record of the underlying action, the argument of
counsel and subject to the same rules of review
as should have been applied by the appellate
courts.”

(Appendix C, C-9-10). The Magistrate Judge, applying the
New York Court of Appeals criteria for review of
administrative hearings in Article 78 proceedings, found that
the record of the Stein Hearings contained “substantial
evidence” to support Stein’s detailed findings and that Stein
did not abuse his discretion in recommending Petitioner’s
discharge. (Appendix C, C-11-16). Finding that the Article

5. Petitioner misstates the facts by asserting that “[Respondent]
conceded having had a duty and breaching it.” (Petition at 5).
Respondent’s assumption, that he had a duty was duly noted by the
Magistrate Judge in his Report and Recommendation. (Appendix
C-9).

4

78 proceeding would not have been successful, the
Magistrate Judge concluded that Petitioner had not suffered
any damages as result of Respondent’s failure to perfect the
Article 78 proceeding.

On January 2, 1999, Petitioner objected to the Report
and Recommendation arguing that causation issues were
factual determinations and that the question whether the
Article 78 proceeding would have been successful should
not have been decided summarily, but rather, should have
been presented to a jury. By Order dated January 27, 1999,
The United States District Court for the Southern District of

-New York accepted the Report and Recommendation in its

entirety and granted summary judgment to Respondent ruling
that the question of an appeal’s success, when raised in a
legal malpractice action, was a question of law to be decided
by the Court. (Appendix B, B-4). Judgment was entered in
favor of Respondent on February 3, 1999. On March 2, 1999,
Petitioner filed a Notice of Appeal from the District Court’s
judgment.

During oral argument of Petitioner’s appeal, the Second
Circuit raised, sua sponte, the possibility of certifying to the
New York Court of Appeals the question of whether the
success of an appeal when forming the basis for a legal
malpractice action was one of law or one of fact. (Appendix
A, A-7). Relying on the decision of a New York trial court
and the opinions of 21 other jurisdictions who had uniformly
addressed the issue, the Second Circuit declined to certify
the question and predicted that the New York Court of
Appeals would rule that in a legal malpractice action, the
question whether damages resulted from an attorney’s failure
to perfect an appeal was a question of law to be decided by
the Court. (Appeal A, A-7-8).

5

The Second Circuit affirmed the District Court’s decision
addressing only the issue of whether Petitioner had shown
that Respondent’s “breach of duty caused any damage, i.e.,
whether, but for [Respondent’s] failure to perfect the Article
78 Appeal, [Petitioner] ultimately would have prevailed on
appeal in challenging the finding of misconduct and
incompetence and consequent termination of his
employment.” (Appendix A, A-6).

On March 17, 2000, Petitioner filed a Petition for a Writ
of Certiorari from the Order and Judgment of the United
States Court of Appeals for the Second Circuit in Tinelli v.
Redl, 199 F.3d 603 (2d Cir. 1999). The petition was docketed
on May 12, 2000. By letter dated June 7, 2000, Respondent’s
counsel requested an additional seven days in which to file
Respondent’s Brief in Opposition. By letter dated June 8,
2000, this Court granted Respondent an extension of seven
days up to and including June 19, 2000 to file Respondent’s
Brief in Opposition. Respondent’s Brief in Opposition is filed
on June 19, 2000, pursuant to Supreme Court Rule 15.3 as
extended by the Clerk of this Court.

6

REASONS FOR DENYING THE WRIT

A. The Court of Appeals for the Second Circuit properly
declined to certify an unresolved question of state
common law te the highest court of the state and
decided the question, relying solely on trial court
precedent and decisions from other jurisdictions,
holding that under New York law the question
whether the failure to perfect an appeal caused
damages was a question of law for the Court and not
a question of fact for the jury.

The rules of the Second Circuit permit certification of a
question of law to the New York Court of Appeals where
there is no controlling New York precedent on an issue. The
Second Circuit may “certify to the highest court of a state
an unsettled and significant question of state law that will
control the outcome of a case pending before [the] Court.”
U.S. Ct. of App. 2nd Cir. Rule § 0.27 (1999). The correlative
provision in the rules of the New York Court of Appeals
gives that court the discretion to accept or reject a question
so certified.

Whenever it appears to the . . . United States Court
of Appeals ... that determinative questions of
New York law are involved in a cause pending
before it for which there is no controlling
precedent of the Court of Appeals, such court may
certify the dispositive questions of law to the
[New York] Court of Appeals.

N.Y. Comp. Codes R. & Regs tit. 22 § 500.17.

7

The decision of a federal court to certify questions of
law pursuant to state established procedures of this type rests
in the sound discretion of the court. Lehman Bros. v. Schein,
416 U.S. 386, 391 (1974). Historically, the Court of Appeals
for the Second Circuit has only certified questions to the
New York Court of Appeals in the following three
circumstances: (i) where there is a split of authority on an
issue; (ii) where the statute’s plain language is subject to
more than one interpretation or does not indicate the answer;
or (iii) when presented with a complex question of New York
common law for which no New York authority can be found.
Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 51
(2d Cir. 1992).

However, even where the law of a state may be uncertain,
a federal court may deny certification where it believes it
can “predict” how the state court would resolve the
ambiguity. Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d
114, 119 (2d Cir. 1994). In making this prediction, the federal
court may be guided by decisions of lower state courts,
In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 850
(2d Cir. 1994), and relevant cases from other jurisdictions.
Bank of New York v. Amoco Oil Co., 35 F.3d 643, 650
(2d Cir. 1994).

Petitioner contended that Respondent was liable for legal
malpractice in failing to perfect the Article 78 proceeding.
To prevail on a claim for legal malpractice under New York
law, a plaintiff must demonstrate “(1) a duty, (2) a breach of
the duty, and (3) proof that actual damages were proximately
caused by breach of that duty.” Marshall v. Nacht, 172
A.D.2d 127, 569 N.Y.S.2d 113, 114 (2d Dept. 1991).
Respondent contended that had the Article 78 proceeding
been perfected, it would not have been successful.

8

Accordingly, Petitioner could not show that the failure to
perfect the Article 78 proceeding caused Petitioner any
damages. On appeal to the Court of Appeals for the Second
Circuit, Petitioner claimed that the District Court erred in
deciding the issue of causation as a matter of law, contending
that the question of whether the Article 78 proceeding would
have succeeded was a factual matter to be resolved by a jury.
(Appendix A, A-6).

In affirming the District Court, the Second Circuit
acknowledged that there was a dearth of case law addressing
this issue in New York. Jd. The Second Circuit initially relied
on existing trial court precedent as set out in Katsaris v.
Scelsi, 453 N.Y.S.2d 994, 996 (Sup. Ct. Broome Co. 1982)
(“The judge ... must determine what the appellate court
would have done. . .”) and Nunez De Villavicencio v. Cerny,
662 F. Supp. 243, 243-44 (S.D.N.Y. 1987) (following
Katsaris and determining, as a question of law, how the
appellate court would have ruled). (Appendix A, A-7-8).
Such reliance on these decisions by the Second Circuit is
consistent with this Court’s recognition that trial court
decisions are “nevertheless laws of the state although the
highest court of the state has never passed upon them.” West
v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940);
see also City of Houston v. Hill, 482 U.S. 451, 470 (1987)
(recognizing that trial rulings on questions of state law are
binding).

The Second Circuit then relied on decisions of other
jurisdictions citing Steeves v. Bernstein, Shur, Sawyer &
Nelson, P.C., 1998 Me. 210, 718 A.2d 186, 191 (Me. 1998)
(“numerous courts have recognized that the determination
of whether an appeal not taken would have been successful
is within the exclusive providence of the court, not the jury.”
Id.) and Charles Reinhart Co. v. Winiemko, 444 Mich. 579,

9

513 N.W.2d 773, 783-84 n.40 (Mich. 1994) (noting that at
least nineteen jurisdictions have concluded that the
determination of whether an appeal would have been
successful is a question of law and that “no reported cases
have held otherwise”) (citing cases). (Appendix A, A-8).
In holding that the District Court properly decided that the
determination of causation of damages on the facts presented
was exclusively a question of law, the Second Circuit stated
that to rule otherwise “would misconstrue the very nature of
appellate review.” (Appendix A, A-8). Notably, Petitioner
has not cited and cannot cite a single case which holds to the
contrary.°

Petitioner misstates the scope of the Second Circuit’s
decision describing the question broadly as “the complex
issue of causation.” In fact, the Second Circuit declined to
certify the question specifically noting “the narrowness of
the issue presented and the unanimity of extensive president
— both in New York and out of New York.” (Appendix A,
A-7). Even where this Court has recognized the importance
of federal abstention pending certification, this Court has
recognized that the availability of certification is not in itself
a sufficient reason to abstain from deciding an issue of state
law. Bellotti v. Baird, 428 U.S. 132, 151 (1976).

6. Three additional states have recently concluded that the
determination of whether an appeal would have been successful is a
question of law. See Sturgis v. Skokos, 335 Ark 41, 51,977 S.W.2d
217, 222 (Ark. 1998) (matter of proximate cause for failure to file
an appeal is a question of law to be decided by a judge); Envil.
Control Sys., Inc. v. Andrews, 301 Ill. App. 3d 612, 621, 703 N.E.2d
1001, 1008 (Ill. App. Ct. 1998) (the issue of proximate cause in an
appellate legal malpractice case should be decided as a matter of
law); accord Dan Nelson Constr. Co. v. Nodland & Dickson, 2000
N.D. 61, 608 N.W.2d 267 (N.D. 2000).

10

It is an inescapable conclusion that the Court of Appeals
for the Second Circuit did not abuse its discretion in declining
to certify the question of state common law presented in
Tinelli v. Redl and Petitioner has not presented any valid
reason for this Court to undertake review of the Second
Circuit's decision.

B. By declining to certify an unresolved question of state
common law to the highest court of the state, the Court
of Appeals for the Second Circuit acted consistently with
the precedents set out by this Court and created no
conflict with the decisions of other Circuit Courts
concerning the applicable principles for determining
the propriety of certifying such questions.

As set out above, the Second Circuit acted in accordance
with the principles articulated by this Court in deciding an
unresolved question of state common law which did not
present complex issues and for which there was uniform
precedent both in New York and in the decisions of sister
States. Accordingly, Petitioner has not demonstrated any
conflict concerning the Second Circuit's declination to certify
the underlying state law question to the highest state court
and the decisions of this Court and the other Circuit Courts.

Petitioner claims that the Second Circuit’s decision
creates a conflict “with regard to its approach to resolving
the issue of causation as a matter of fact or law.” (Petition
at 8). However, the resolution of the issue of causation, to
the extent presented in the context of a state tort action, is a
matter to be governed by the substantive law of the state and
is an issue about which there may well be conflicts among
the states.

11

There is no general common law. Congress has
no power to declare substantive rules of common
law applicable in a State whether they be local in
their nature or “general,” be they commercial law
or a part of the law of torts. And no clause in the
constitution purports to confer such a power upon
the federal courts.

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). “Whatever
lack of uniformity this may produce between federal courts
in different states is attributable to our federal system, which
leaves to a state, within the limits permitted by the
Constitution, the right to pursue local remedies diverging
from those of its neighbors.” Klaxon C. v. Stentor Elec. Mfg.
Co., Inc., 313 U.S. 487, 496 (1941).

Petitioner relies on two cases as evidencing this
purported conflict. First, Petitioner cites Henry v. Merck &
Co., 877 F.2d 1489 (10th Cir. 1989) for the proposition that
causation can become a question of law when there is no
evidence from which a jury could find a causal nexus between
the careless act and the injury. (Petition at 7). In Henry, the
Tenth Circuit applied Oklahoma’s negligence law to
determine the liability of a chemical maker, who carelessly
stored acid, for injuries sustained as a result of an intervening
theft of the acid and its intentional misuse by the thief causing
injury to a third party. Recognizing that Oklahoma had not
addressed these precise factual circumstance, the Tenth
Circuit analyzed the relevant case law of Oklahoma and
concluded that “Oklahoma’s application of the supervening
cause doctrine would follow the analysis of the Nebraska
Supreme Court.” Jd. 877 F.2d at 496. The Tenth Circuit
looked to the existing law of Oklahoma and then looked to
relevant precedent in other jurisdictions as did the Second

12

Circuit in Tinelli v. Redl. Petitioner has simply failed to show
a conflict between the Second Circuit and the Tenth Circuit.

Petitioner then cites to Peckham v. Continental Casualty
Ins Co., 895 F.2d 830 (1st Cir. 1990) as supporting the
existence of this purported conflict between the Circuits.
(Petition at 7). The Peckham case simply discusses
circumstances in which causation can be determined as a
matter of law and in no way supports Petitioner’s attempt to
create a conflict between the Circuit Courts warranting
review by this Court.

Petitioner argues that there is a “failure of circuit courts
to engage in a uniform approach to addressing issues of
substantive law when no controlling state precedent exists.”
(Petition at 9-10). Unfortunately, petitioner fails to show how
the Second Circuit deviated from the principles articulated
by this Court or how the Second Circuit’s actions created a
conflict with any other Circuit Court.

Petitioner’s assertion that the Second Circuit’s decision
in Tinelli v. Redl creates a conflict with the First Circuit and
the Tenth Circuit is nothing more than an assertion
completely unsupported by the facts and cases relied upon
by Petitioner. Accordingly, Petitioner’s misleading
characterization of a purported conflict provides no basis
for this Court’s review.

13

CONCLUSION

Petitioner raises no new or important questions.
The Second Circuit determined that the issue presented in
Tinelli v. Redl was neither unprecedented or complex and
correctly decided the issue relying on lower court decisions
and the uniform decisions of all other states that had
previously considered the precise issue raised. There is
simply no issue that must be resolved by this Court.

Wherefore, for the above stated reasons, the Petition for
Writ of Certiorari should be denied.

Respectfully submitted,

DEBORA A. PITMAN
CoNnWAY, FARRELL, CURTIN
& KELLY, P.C.

Attorneys for Respondent
63 Wall Street

New York, NY 10005-3001
(212) 785-2929

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1025%3A2. Public record. Not legal advice.