New York Civil Procedure: Appellate Division Orders and Appeals to the Court of Appeals, Study notes of Law

Download New York Civil Procedure: Appellate Division Orders and Appeals to the Court of Appeals and more Study notes Law in PDF only on Docsity! September 2020 THE NEW YORK COURT OF APPEALS CIVIL JURISDICTION AND PRACTICE OUTLINE Table of Contents I. APPEALS AS OF RIGHT ........................................................................................................3 A. Individual Jurisdictional Predicates ................................................................................................... 3 1. Two-Justice Dissent at the Appellate Division -- CPLR 5601(a) ..................................................... 3 2. Constitutional Question -- CPLR 5601(b)(1) .................................................................................. 4 3. Constitutional Question -- CPLR 5601(b)(2) .................................................................................. 5 4. Stipulation for Judgment Absolute -- CPLR 5601(c) ...................................................................... 5 5. Appeal Pursuant to CPLR 5601(d) ................................................................................................. 7 B. Rule 500.10 Review ........................................................................................................................... 8 II. MOTIONS FOR LEAVE TO APPEAL ................................................................................. 9 A. Certiorari Jurisdiction ........................................................................................................................ 9 B. What is a Motion for Leave? ............................................................................................................. 9 C. Statutory Requirements -- Jurisdictional Predicates......................................................................... 9 D. How to Move for Leave to Appeal -- Rule 500.22 Requirements ................................................... 11 E. Common Errors in Motions for Leave ............................................................................................. 12 III. GUIDELINES FOR PREPARING A MOTION FOR LEAVE TO APPEAL .......................... 15 A. Certiorari Factors ............................................................................................................................ 15 B. Some Reasons Why the Court Denies Leave .................................................................................. 16 C. Some Reasons Why the Court Grants Leave ................................................................................... 17 IV. RULE 500.11 REVIEW -- ALTERNATIVE PROCEDURE FOR SELECTED APPEALS ... 17 A. What Is It? ....................................................................................................................................... 17 B. When Is It Invoked? ........................................................................................................................ 17 C. Countering Misconceptions about the Alternative Procedure ....................................................... 17 D. Benefits of the Alternative Procedure ............................................................................................ 18 E. How the Alternative Procedure Works ........................................................................................... 18 V. APPEALABILITY AND REVIEWABILITY ......................................................................... 19 A. Definitions ....................................................................................................................................... 19 B. Appealability ................................................................................................................................... 19 1. Appropriate Court ....................................................................................................................... 19 2. Aggrievement .............................................................................................................................. 19 3. Finality ......................................................................................................................................... 20 4. Miscellaneous Appealability Problems ....................................................................................... 20 1 2 C. Reviewability ................................................................................................................................... 22 1. Preservation -- Issues Reviewable ............................................................................................... 22 2. CPLR 5501(a) -- Review of Prior Nonfinal Orders and Determinations ....................................... 24 3. Scope of Review .......................................................................................................................... 25 VI. WHAT IS A FINAL DETERMINATION? -- A SYSTEMATIC APPROACH ......................... 28 A. Constitutional Requirement............................................................................................................ 28 B. Nonfinality ....................................................................................................................................... 28 1. Merits Not Addressed -- Too Early .............................................................................................. 28 2. Merits Not Addressed -- Too Late ............................................................................................... 29 3. Merits Addressed -- Remittals for Further Judicial Action .......................................................... 31 4. Merits Addressed -- Claims Pending ........................................................................................... 33 C. Exceptions to Nonfinality ................................................................................................................ 34 1. Express Severance ....................................................................................................................... 34 2. Implied Severance ....................................................................................................................... 35 3. Party Finality ............................................................................................................................... 35 4. Irreparable Injury ........................................................................................................................ 36 D. Separate Special Proceedings ......................................................................................................... 37 VII. THE “NECESSARILY AFFECTS” REQUIREMENT ........................................................ 38 A. General Overview ........................................................................................................................... 38 B. The "Necessarily Affects" Requirement .......................................................................................... 39 C. Examples of Orders That Necessarily Affect Final Judgments ........................................................ 39 D. Examples of Nonfinal Orders That Do Not Necessarily Affect Final Judgments ............................. 40 FINALITY CONTINUUM ........................................................................................................... 41 5 need not prevail on the merits to support an appeal on constitutional grounds (see Rose v Moody, 83 NY2d 65, 69 [1993]). 3. Constitutional Question -- CPLR 5601(b)(2) -- Direct Appeal from Court of Original Instance (When That Court Is Not the Appellate Division) a. The only question involved must be the constitutionality of a statutory provision; where issues are involved that must be resolved in addition to the constitutional question, the appeal is transferred to the Appellate Division (Jetro Cash and Carry Enters. v State of New York Dept. of Taxation and Fin., appeal transferred 81 NY2d 776 [1992] [discussion of plaintiff's possible failure to exhaust administrative remedies]; Town of Brookhaven v State of New York, appeal transferred 70 NY2d 999 [1998] [Court required to determine whether disputed material issues of fact existed prior to determining whether summary judgment could be granted on constitutional claims; threshold finality inquiry]; Matter of Morley v Town of Oswegatchie, appeal transferred 70 NY2d 925 [1987] [question of statutory interpretation that could be dispositive of constitutional question]; New York State Club Assn. v City of New York, appeal transferred 67 NY2d 717 [1986] [ripeness, standing, subject matter jurisdiction, issue whether declaratory judgment action is proper vehicle to test constitutionality of legislative enactment]; Kerrigan v Kenny, appeal transferred 64 NY2d 1109 [1985] [mootness]). b. The effectiveness of a stipulation to eliminate nonconstitutional issues will be strictly scrutinized by the Court. Presence of nonconstitutional issues is fatal to a direct appeal. 4. Stipulation for Judgment Absolute -- CPLR 5601(c) (see Karger, §§ 8:1-8:2, at 251-285; 12 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 5601.13, 5601.16) a. The Appellate Division must grant a new trial or hearing (as opposed to a first or initial hearing) (Matter of Knight-Ridder Broadcasting v Greenberg, mot to dismiss appeal denied 69 NY2d 875 [1987]; Matter of Town of Highlands v Weyant, appeal dismissed 30 NY2d 948 [1977]; see also CPLR 5615). b. The stipulation for judgment absolute must not be illusory. Such was the case where a judgment was originally entered in plaintiff's favor on liability but awarding plaintiff no damages and the 6 Appellate Division reversed and ordered a new trial on damages. Even if defendant lost on appeal, a new trial would still have to be held to determine the amount of the damages to which plaintiff was entitled. Thus, defendant gave up nothing by stipulating to judgment absolute (Goldberg v Elkom Co., appeal dismissed 36 NY2d 914 [1975]). Likewise, where a defendant stipulates to judgment absolute on the issue of liability in the event of an affirmance, no appeal lies pursuant to CPLR 5601(c). A stipulation for judgment absolute must effect a final determination of the action as to both liability and damages (Lusenskas v Axelrod, appeal dismissed 81 NY2d 300 [1993]). The stipulation, to be effective, must be for judgment absolute. Thus, a plaintiff-appellant who stipulates only to a reduction in the damages awarded at trial -- as opposed to dismissal of the complaint -- may not appeal pursuant to CPLR 5601(c) (Hedgepeth v Merz, appeal dismissed 70 NY2d 836 [1987]). c. In this regard, it is worth noting that the Appellate Division does not have the power to grant leave to appeal on a certified question from an order granting a new trial or hearing (Fishman v Manhattan and Bronx Surface Tr. Op. Auth., mot to dismiss appeal granted 78 NY2d 878 [1991]). When a new trial or hearing is ordered, the Appellate Division cannot grant leave to appeal even if no appeal would lie as of right under CPLR 5601(c) (Maynard v Greenberg, appeal dismissed 82 NY2d 913 [1994]). d. Even if the appellant would be otherwise aggrieved under normal agrievement rules, CPLR 5601(c) does not authorize an appeal to the Court of Appeals by a party in whose favor the Appellate Division has reversed a judgment and granted a new trial (Huerta v New York City Tr. Auth., 98 NY2d 643 [2002]). e. Even in the rare cases where an appeal lies under CPLR 5601(c), appealing under this predicate involves certain dangers that can trap the unwary appellant. To prevail on an appeal on a stipulation for a judgment absolute, the appellant must show that the Appellate Division erred as a matter of law in granting a new trial or hearing. If, however, the Court of Appeals determines that the Appellate Division's order turned on a question of fact or an exercise of discretion, the Court has no alternative but to automatically affirm and render a judgment absolute (see Clayton v Wilmot and Cassidy, 34 NY2d 992 [1974]). Thus, if the Appellate Division reversal turned on an unpreserved issue, the determination below would be pursuant to the Appellate Division's discretionary interest 7 of justice review powers, and the appellant would end up with an affirmance and a judgment absolute in the Court of Appeals. 5. Appeal Pursuant to CPLR 5601(d) a. This jurisdictional predicate permits review of an Appellate Division order that satisfies all of the jurisdictional requirements for an appeal as of right pursuant to CPLR 5601(a) or (b)(1), except finality, on the basis of a subsequent order or judgment which finally determines the action or proceeding in which the earlier Appellate Division order was issued. Only the earlier nonfinal order is reviewed on such an appeal (CPLR 5501[b]; see Matter of Greatsinger, 66 NY2d 680, 682-683 [1985]; Matter of Farber v U.S. Trucking Corp., 26 NY2d 44, 55 [1970]). An appellant who wishes to challenge new matters decided by the trial court, instead of taking a CPLR 5601(d) appeal, must take a second appeal to the Appellate Division, which will review only the new matters. The appellant can thereafter take a CPLR 5601(d) appeal from the second Appellate Division order, obtaining Court of Appeals review only of the prior nonfinal Appellate Division order (see Curiale v Ardra Ins. Co., appeal dismissed in part 86 NY2d 774 [1995]; Gilroy v American Broadcasting Co., 46 NY2d 580 [1979]). If jurisdictional predicate requirements for an appeal as of right are not met by the second order, the appellant must also move for leave to appeal in order to obtain review of the issues decided in the second Appellate Division order. If jurisdictional requirements for an appeal as of right are met by the second Appellate Division order, the appellant need not use CPLR 5601(d) to obtain Court of Appeals review. Rather, the appellant can appeal as of right from the second order, and obtain Court of Appeals review of the prior nonfinal order pursuant to CPLR 5501, assuming the nonfinal order “necessarily affects” the final order (see Sections V-C-2 and VII of this outline). Note that an adversary’s appeal from the final judgment to the Appellate Division does not extend a party's time to take a CPLR 5601(d) appeal. The failure to take an available CPLR 5601(d) appeal after entry of the final judgment may render the appeal untimely or otherwise waived (see Goldman Copeland Assoc. v Goodstein Bros. & Co., lv dismissed 96 NY2d 796 [2000]). b. Besides the requirement that the earlier Appellate Division order satisfy all of the requirements for an appeal as of right pursuant to 10 CPLR 5602(a)(1)(ii) allows a litigant to by-pass a second appeal to the Appellate Division when the movant only seeks review of the Appellate Division's prior nonfinal order and not the subsequent final order made by the nisi prius court after the Appellate Division's remittal. CPLR 5602(a)(1)(ii) is the parallel to CPLR 5601(d), which applies to appeals as of right. In order for a motion seeking leave to appeal pursuant to CPLR 5602(a)(1)(ii) to lie, the following requirements must be met: a. The judgment sought to be appealed from must be a final judgment. The parties cannot simply enter a "nonfinal" judgment on the Appellate Division order (Burnside Coal & Oil v City of New York, lv dismissed 73 NY2d 852 [1988]). The Court has deemed a stipulation between the parties finally resolving all remaining claims a judgment to allow a motion for leave to appeal pursuant to CPLR 5602(a)(1)(ii) (Voorheesville Gun Club v E.W. Tompkins Co., 82 NY2d 564, 568 [1993]). Where the "final" judgment or order on which the motion or appeal is predicated is based on a stipulation between the parties concerning damages, the Court will check the stipulation to make sure it is not illusory or conditional (see Udell v New York News, lv dismissed 70 NY2d 745 [1987] [where stipulation expressly provided that it could not be construed as a concession by plaintiff that damages were limited to any amount, stipulation was deemed illusory and motion was dismissed for nonfinality]; Costanza Constr. Co. v City of Rochester, appeal dismissed 83 NY2d 950, 951 [1989] [dismissal of counterclaims only conditional]). b. The prior nonfinal Appellate Division order must “necessarily affect” the final order or judgment. For a detailed discussion of the “necessarily affects” requirement, see Section VII, infra. 3. Motions for Leave To Appeal from Nonfinal Orders -- CPLR 5602(a)(2) – Administrative Context CPLR 5602(a)(2) allows a motion for leave to appeal from a nonfinal Appellate Division order in "a proceeding instituted by or against one or more public officers or a board, commission or other body of public officers or a court or tribunal." a. By its terms, this section only applies to motions for leave to appeal (compare language of CPLR 5601 with CPLR 5602). Moreover, the section only applies to proceedings, not to actions (John T. Brady & Co. v City of New York, lv dismissed 56 NY2d 711 [1982]). 11 b. The remittal must be to the agency and not to (1) a lower court, or (2) a lower court and an agency (see Matter of Golf v New York State Dept. of Social Servs., lv dismissed 88 NY2d 960 [1996]). c. The public body must be participating in the litigation as an adjudicatory or administrative body. If the body participating is in the capacity of any other litigant, prosecuting or defending a claim before an adjudicatory tribunal, CPLR 5602(a)(2) will not apply (see Matter of F.J. Zeronda, Inc. v Town of Halfmoon, 37 NY2d 198, 200-201 [1975]). d. Any party to a proceeding which comes within the ambit of CPLR 5602(a)(2) may benefit from the section (see id. at 201 n *). e. In Workers' Compensation Board cases, review by the Appellate Division is by appeal, so there is no proceeding "instituted by or against" a public body and, thus, a nonfinal Appellate Division order is not appealable by permission pursuant to CPLR 5602(a)(2) (Matter of Marcera v Delco Prods., lv dismissed 88 NY2d 804 [1995]). The same rule applies to unemployment insurance cases where review by the Appellate Division is by appeal under Labor Law § 624 (see Matter of Caufield-Ori [Blumberg - Sweeney], 89 NY2d 982 [1997]). 4. Motions for Leave To Appeal by Permission of the Appellate Division -- CPLR 5602(b) Note that in addition to the statutory predicates discussed above, the Appellate Division can also grant leave to appeal from certain final and nonfinal orders as to which the Court of Appeals lacks constitutional and statutory power to grant leave. Consult CPLR 5602(b). However, the Appellate Division's authority to grant leave from a nonfinal order, where it certifies a question for Court of Appeals review, has limitations (see CPLR 5602[b][1]; Bryant v State of New York, 7 NY3d 732 [2006]). D. How to Move for Leave to Appeal -- Rule 500.22 Requirements 1. What the document should look like A motion is made on a copy of the record or appendix used in the court below and an original and one copy of the moving papers. One copy of the moving papers must be served on the adverse party. The moving papers shall be a single document bound on the left (22 NYCRR 500.1; 500.22[b]). 12 2. What should be addressed a. Notice of return date (any non-holiday Monday, or next non-holiday business day following a Monday holiday within the meaning of CPLR 5516, 8 [if papers served personally], 9 [if served by overnight delivery]; 13 [if by mail within the state; or 14 [if by mail outside the state] days after service of notice, whether or not the Court is in session) and relief requested. b. Questions presented. Counsel should note that "if a party in its application for leave to appeal specifically limits the issues it seeks to have reviewed, it is bound by such limitation and may not raise additional issues on the appeal" (Quain v Buzzetta Constr. Corp., 69 NY2d 376 [1987]). c. Procedural history and timeliness chain (22 NYCRR 500.22[b][2]). d. Jurisdiction (CPLR 5602). e. Argument as to why leave should be granted. f. A disclosure statement, if required (22 NYCRR 500.1[f]; 500.22[b][5]). g. One copy of all relevant orders, judgments, opinions or memoranda, one copy of the record or appendix below and one copy of each party's briefs below. E. Common Errors in Motions for Leave 1. Failure to provide proof of service Without proof of service, the Court is unable to determine whether the motion is timely and what the appropriate return date should be. Proof should indicate service of two copies (22 NYCRR 500.22[a]). 2. Failure to establish timeliness chain Rule 500.22(b)(2) requires a demonstration of the timeliness of the motion (CPLR 5513), including the timeliness of any prior motion in the Appellate Division for leave to appeal to the Court of Appeals, which extends the time to move in the Court of Appeals (CPLR 5514[a]). A failure to comply with this requirement can result in the dismissal of the motion for such defects (see Horowitz v Incorporated Vil. of Roslyn, lv dismissed 74 NY2d 835 [1989]). 15 3. Failure to address finality Rule 500.22(b)(3) requires a showing that the Court has jurisdiction of the motion and of the proposed appeal, including that the order sought to be appealed from is a final determination or comes within the special class of nonfinal orders which are appealable by permission of the Court of Appeals (CPLR 5602[a][2]). To show finality, the status of every claim, counterclaim, cross claim, or other request for relief pleaded in the action must be indicated. Any post-submission changes in status of such claims must promptly be reported to the Court (see Court of Appeals Notice to the Bar [9-19-89]; 22 NYCRR 500.6). A failure to comply with these requirements can result in the dismissal of the motion for such defects (see Rose v Green, lv dismissed 74 NY2d 836 [1989]). To evaluate whether a particular order is final for purposes of Court of Appeals jurisdiction, see Section VI of this outline. Many attorneys mistakenly assume that moving for leave to appeal is a way to cure finality problems. When moving for leave to appeal in the Court of Appeals, as opposed to the Appellate Division, this is absolutely wrong. Except for the limited circumstances authorized by CPLR 5602(a)(2), a motion seeking leave to appeal must be taken from a final determination (see CPLR 5602[a][1]). 4. Failure to show where arguments are preserved in the record (see 22 NYCRR 500.22[b][4]; see also Section V-C of this outline). 5. Exclusive concentration on the merits of the substantive argument without adequately addressing why leave should be granted. Arguing error below is not enough. The certiorari factors listed in Rule 500.22(b)(4) must be addressed. The primary function of the Court of Appeals is to decide legal issues of State-wide significance, not to correct error made in the Appellate Division. III. GUIDELINES FOR PREPARING A MOTION FOR LEAVE TO APPEAL A. Certiorari Factors -- 22 NYCRR 500.22(b)(4) Question of law should be "novel or of public importance, or involve a conflict with prior decisions of this Court, or involve a conflict among the departments of the Appellate Division." Denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see Matter of Marchant v Mead- Morrison Mfg. Co., 252 NY 284 [1929]). 16 B. Some Reasons Why the Court Denies Leave The Court does not state reasons why it does not grant leave to appeal in any particular case. Generally, some reasons why the Court may deny leave: 1. The questions presented are not reviewable. Many motions are denied because they simply present questions of fact which have been resolved against the movant. The Court of Appeals may review findings of fact which have been affirmed by the Appellate Division only to determine if there is support in the record for them. Rarely is a motion challenging affirmed findings of fact granted. The same is true for cases involving exercises of discretion by the lower courts. Such questions are beyond the Court's review absent an abuse of discretion. 2. Questions are not preserved. 3. The law is settled. a. Law is settled and correctly applied. b. Law is settled and any error below did not lead to substantial injustice. c. General principles of law settled and case involves mere application to unique facts. 4. The law is not settled, but . . . a. Case offers nothing beyond the parties -- no State-wide implications (e.g. construction of a unique contract provision between private parties). b. Arguably correct result reached below or the law has not been sufficiently developed by lower courts. 5. Good issue/bad case a. Important issues of unsettled law but record is insufficient to address the legal issues. b. Legal issues not squarely presented by attorneys. 17 C. Some Reasons Why the Court Grants Leave To address important legal Issues and 1. Address a split in authority among Departments of the Appellate Division. 2. Construe statutes in developing areas of regulation. 3. Develop emerging areas of common law. 4. Reevaluate outmoded precedent. 5. Correct error below -- incorrect statements of law in a writing by Appellate Division. 6. Correct error below -- to cure substantial injustice. IV. RULE 500.11 REVIEW -- ALTERNATIVE PROCEDURE FOR SELECTED APPEALS A. What Is It? Sometimes referred to as the Sua Sponte Merits examination or SSM, alternative review is in essence the presentation of an appeal to the full Court without oral argument. B. When Is It Invoked? -- Criteria in 22 NYCRR 500.11(b) Rule 500.11(b) states: Appeals may be selected by the Court for alternative review on the basis of (1) the presence of lower courts' nonreviewable discretion, mixed questions of law and fact or affirmed findings of fact, all of which are subject to a limited scope of review; (2) clear recent controlling precedent; (3) narrow issues of law not of overriding or State-wide importance; (4) nonpreserved issues; (5) a party’s request for such review or (6) other appropriate factors. C. Countering Misconceptions about the Alternative Procedure 1. Alternative review is not used only when the Court decides to affirm. 2. Rule 500.11 appeals are decided by the full Court. The deliberative process is essentially the same for all appeals. Consequently, a Rule 500.11 appeal receives the same attention as a normal course appeal. 20 b. No appeal lies from an Appellate Division order dismissing an appeal from a determination entered upon a default judgment (CPLR 5511; Matter of Lizette Patricia C., 98 NY2d 688 [2002]). c. Where the Appellate Division reverses a trial court's judgment and orders a new trial limited to the issue of damages unless plaintiff stipulates to a reduction of damages, and plaintiff so stipulates, the court had held that plaintiff is not aggrieved by the Appellate Division order (see Whitfield v City of New York, 90 NY2d 777, 780 n * [1997]; see also Smith v Hooker Chem. & Plastics Corp., cross mot for lv dismissed 69 NY2d 1029 [1987]). However, in Adams v Genie Indus. (14 NY3d 535 [2010]), the court "conclude[d] that...[i]t is unfair to bar a party from raising legitimate appellate issues [as to liability] simply because that party has made an unrelated agreement on the amount of damages" (id. at 541). The court rejected the aggrievement rule in Whitfield and Batavia Turf Farms v County of Genesee (lv dismissed 91 NY2d 906 [1998]) "to the extent that they go beyond the original Dudley v Perkins (235 NY 448, 457 [1923]) holding" (14 NY3d at 536, 542). 3. Finality -- covered in detail in Section VI of this outline. 4. Miscellaneous Appealability Problems a. Dual Review -- Where the same party both appeals to the Appellate Division and appeals to the Court of Appeals, the appeal to the Court will be conditionally dismissed. Where the same party both appeals to the Appellate Division and moves for leave to appeal to the Court of Appeals, the motion will be dismissed outright. Dual review is generally not permitted (Parker v Rogerson, 35 NY2d 751, 753 [1974]; see also CBS Inc. v Ziff Davis Pub., lv dismissed 73 NY2d 807 [1988]). However, where different parties pursue different avenues of appeal or motion before the Court, they will be permitted to continue (Harry R. Defler Corp. v Kleeman, 18 NY2d 797 [1966]). b. Appealable paper -- An appeal will be dismissed where the improper paper is sought to be appealed. 21 i. No order or judgment -- Where appellant/movant seeks to appeal from something other than an order or judgment, the appeal/motion will be dismissed (Matter of Sims v Coughlin, appeal dismissed 86 NY2d 776 [1995] [decision]; Matter of Abdurrahman v Berry, lv dismissed 73 NY2d 806 [1998] [letter]). ii. Subsequent Supreme Court order or judgment -- CPLR 5611 reads in part "[I]f the Appellate Division disposes of all the issues in the action its order shall be considered a final one, and a subsequent appeal may be taken only from that order and not from any judgment or order entered pursuant to it" (see American Acquisition Co. v Kodak Elec. Printing Sys., 87 NY2d 1049 [1996]). iii. Order of individual Appellate Division Justice -- No appeal lies from an order of an individual Justice of the Appellate Division (People ex rel. Mahler v Jablonsky, appeal dismissed 82 NY2d 919 [1994]). iv. The finality of an Appellate Division order dismissing an appeal to that court is determined by an examination of the finality of the underlying order (Langeloth Found. v Dickerson Pond Assocs., lv dismissed 74 NY2d 841 [1989]). v. No civil motion for leave to appeal or appeal as of right lies directly from the order of the Appellate Term of Supreme Court (Williamson v Housing Preservation and Dev. of City of New York, lv dismissed 82 NY2d 919 [1994]). c. Dismissal of Prior Appeal for Failure To Prosecute A prior dismissal of an appeal for failure to prosecute is a determination on the merits and acts as a bar to a subsequent appeal raising the issues that could have been raised on the prior appeal (see Bray v Cox, 38 NY2d 350 [1976]). Thus, the subsequent motion/appeal may be dismissed (see id.; compare Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Faricelli v TSS Seedman's, 94 NY2d 772 [1999] [Appellate Division has discretion to entertain appeal notwithstanding dismissal of prior appeal for failure to prosecute]). 22 d. Criminal Appeals Appeals in criminal cases must be taken pursuant to the Criminal Procedure Law, not CPLR 5601 or 5602 (Matter of Newsday, Inc., 3 NY3d 651 [2004] [newspaper’s motion to intervene and obtain access to record in criminal case]; People v Blake, appeal dismissed 73 NY2d 985 [1989] [CPL 450.15, 460.15 application]; People v Dare, appeal dismissed 74 NY2d 707 [1989] [application for writ of error coram nobis]). e. Corporation Appearance CPLR 321(a) dictates that a motion or appeal by a corporate party must be filed by an attorney. f. Mootness Where the issues presented are no longer determinative of a live controversy, the Court will not entertain an appeal or motion for leave to appeal. The Court cannot entertain the motion or appeal because it cannot give advisory opinions (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 [1980]). However, the Court may entertain an appeal or motion when each of the three prongs of the mootness exception is satisfied: "(1) a likelihood of repetition . . .; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e. substantial and novel issues" (id. at 714-715). C. Reviewability Once it is determined that an order is appealable, a litigant must consider which issues and orders that arose in the litigation are reviewable by the Court of Appeals. 1. Preservation -- Issues Reviewable a. The Court of Appeals' power to review lower court rulings made on motions, applications and points of evidence is, in part, limited by statutes and case law requiring that appropriate objections be registered below as a prerequisite to appellate review (see CPLR 4017, 4110-b and 5501[a][3] and [4]). The Court will determine whether an issue has properly been preserved below, whether or not the parties raise the question of preservation (see Halloran v Virginia Chems., 41 NY2d 386, 393 [1977]). Counsel bears the 25 b. Note that CPLR 5501(a)(1), which applies to prior nonfinal orders and judgments, contains the “necessarily affects” requirement. CPLR 5501(a)(3), which applies to trial rulings, however, does not. c. For an in-depth discussion of the “necessarily affects” requirement, see Section VII of this outline. 3. Scope of Review Once it is determined which orders, determinations, and issues are reviewable, the scope of the Court’s review must be considered. a. Limited to questions of law As noted earlier, the State Constitution limits the Court's review powers to questions of law. Questions of fact are not reviewable except in: i. death penalty cases (CPL 470.30[1]); ii. Commission on Judicial Conduct matters (see e.g. Matter of Edwards, 67 NY2d 153 [1986]); iii. cases where the Appellate Division reverses or modifies and finds new facts, in which case the Court’s review power is limited as discussed further below (CPLR 5501[b]); and iv. defamation cases involving a public figure defendant -- where the issue concerns whether plaintiff has proven the essential element of actual malice, the Court has a constitutional duty to review the evidence and to "exercise independent judgment to determine whether the record establishes actual malice with convincing clarity" (Prozeralik v Capital Cities Communications, 82 NY2d 466, 474-475 [1993], quoting Harte-Hanks Communications v Connaughton, 491 US 657, 659 [1989]). 26 b. Questions that are never reviewable i. An Appellate Division determination whether the trial judge correctly decided a CPLR 4404(a) motion to set aside the verdict as "contrary to the weight of the evidence" is not reviewable (Levo v Greenwald, 66 NY2d 962 [1962]; Gutin v Frank Mascali & Sons, Inc., 11 NY2d 97, 98-99 [1962]). However, where a jury verdict has been set aside on the ground that, as a matter of law, the verdict is not supported by sufficient evidence, that determination is reviewable. The relevant inquiry is whether there is any "valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Where it is not clear from the Appellate Division writing whether the Appellate Division has set aside a verdict on sufficiency of evidence or weight of evidence grounds in a jury tried case, examine the court's corrective action. New trial ordered -- weight; dismissal of complaint -- sufficiency (see id. at 498). The foregoing analysis cannot be used in bench trial cases because the Appellate Division can render judgment for the appealing party as a matter of fact without the need for a new trial. When, in a jury case, the Appellate Division reverses a judgment entered on a plaintiff's verdict, on both sufficiency and weight of the evidence grounds, the Court can review whether the legal sufficiency ruling was correct. If the Court disagrees with the Appellate Division and concludes that the verdict is supported by legally sufficient evidence, the Court cannot reinstate the judgment entered on the verdict; instead, it must order a new trial because it cannot disturb the Appellate Division's weight of evidence determination (Sage v Fairchild-Swearingen, 70 NY2d 579, 588 [1987]). ii. A determination of excessiveness (or inadequacy) of the jury's verdict (Rios v Smith, 95 NY2d 647, 654 [2001]; Woska v Murray, 57 NY2d 928 [1982]; Zipprich v Smith Trucking Co., 2 NY2d 177, 188 [1956]). 27 iii. An Appellate Division determination to reverse a judgment in a civil action on the basis of unpreserved legal error (Brown v City of New York, 60 NY2d 893 [1983]). The Court of Appeals has no power to review either the unpreserved error or the Appellate Division’s exercise of discretion in reaching the issue (see Elezaj v Carlin Constr. Co., 89 NY2d 992, 994 [1997]). c. Limited Review i. Findings of fact that are affirmed by the Appellate Division are only reviewable to determine if there is evidence in the record to support them (Cannon v Putnam, 76 NY2d 644, 651 [1990]; Morgan Servs. v Lavan Corp., 59 NY2d 796, 797 [1983]). ii. In situations where the Appellate Division reverses or modifies and expressly or impliedly finds new facts, the Court of Appeals can determine which of the findings more nearly comports with the weight of the evidence (CPLR 5501[b]; Matter of Y.K., 87 NY2d 430, 432 [1996]; Loughry v Lincoln First Bank, N.A., 67 NY2d 369, 380 [1986]). iii. Provided the lower courts had the power to exercise discretion (Brady v Ottaway Newspapers, 63 NY2d 1031 [1984]), the Court of Appeals will not interfere with the exercise of that discretion absent an abuse (Herrick v Second Cuthouse, 64 NY2d 692 [1984]). However, an issue of law will be presented where the Appellate Division in exercising its discretion expressly fails to take into account all the various factors that are properly entitled to consideration (Varkonyi v Varig, 22 NY2d 333, 337 [1968]). In such cases, the Court can set out the proper factors and, if judgment cannot be rendered as a matter of law, remit the case to the Appellate Division to exercise its own discretion on the basis of all the relevant factors (id. at 338). 30 - Furey v Furey, lv dismissed 89 NY2d 916 [1996] [motion for a money judgment to enforce a provision of the judgment]. An action seeking a judgment for maintenance or permanent support arrears is considered final, notwithstanding its apparent similarity to an enforcement proceeding (Creque v Creque, lv denied 86 NY2d 707[1995]; Kohn v Kohn, lv denied in part 70 NY2d 999 [1988]). Proceedings commenced via petition under the authority of Family Court Act § 454 to enforce a prior determination are treated as separate special proceedings notwithstanding their apparent similarity to enforcement motions made in the context of matrimonial actions in Supreme Court. b. Contempt Motions - Matter of Public Emp. Fedn. v Division of Classification and Compensation of New York State Civil Serv. Commn., appeal dismissed 66 NY2d 758 [1985] [order granting or denying motion for finding of contempt with respect to an earlier court order to which contemnor was a party is nonfinal]. Compare Matter of Werlin v Goldberg, lv denied 70 NY2d 615 [1988] [order punishing contempt committed in immediate view and presence of court is reviewable in article 78 proceeding and can result in a final order determining a separate special proceeding]. c. Motions To Amend or Resettle Final Judgments or Orders - Matter of Kaplan v Werlin, lv dismissed in part & denied in part 87 NY2d 915 [1996] [motion to "correct" judgment denied; Appellate Division affirmed]. - Cox v Cox, lv dismissed 89 NY2d 860 [1996] [motion to amend granted; Appellate Division reversed]. - Smithtown General Hosp. v State Farm Mut. Automobile Ins. Co., lv dismissed 88 NY2d 1065 [1996] [post judgment motion for attorney's fees, when denied, results in nonfinal order since such orders are treated as denials of motions to amend]; but see Loretto v Group W. Cable, Inc., lv denied 71 NY2d 802 [1998] [order denying CPLR 909 post judgment motion for attorney's fees in class actions pursuant to 42 USC § 1983 treated as finally resolving a separate special proceeding]. 31 When motion to amend a final determination is granted, it may create a new final paper (see Matter of Kaplan v Werlin, lv denied 88 NY2d 812 [1996]). d. Motions To Vacate - Matter of Babey-Brooke v Ziegner, appeal dismissed 61 NY2d 758 [1984] [order denying motion to vacate a default judgment]. - Jeffs v Janessa, Inc., lv dismissed 88 NY2d 1037 [1996] [order denying motion to restore action to trial calendar after CPLR 3404 dismissal]; Paglia v Agrawal, lv dismissed 69 NY2d 946 [1987] [order denying motion to vacate prior dismissal pursuant to CPLR 3404]. - Brown Cow Farm v Volvo of America Corp., lv dismissed 63 NY2d 605, 770 [1984] [motion to vacate granted; entire action pending]. - Miles v Blue Label Trucking, lv dismissed 89 NY2d 917 [1996] [motion to vacate granted; Appellate Division reversed]. e. Motions for Renewal, Reargument or Leave To Appeal - Robertson v City of New York, appeal dismissed 90 NY2d 844 [1997] [Supreme Court grants renewal and, on renewal, rules for plaintiff; Appellate Division reverses and denies motion to renew; nonfinal even if rationale supporting Appellate Division order denying motion to renew pertains to merits and not to the standards governing renewal motions]. - Campbell v JSB Realty Co., appeal dismissed 64 NY2d 881 [1985] [Appellate Division order denying leave to appeal to Appellate Division]. - Cherchio v Alley, lv dismissed 66 NY2d 604, 914 [1985] [Appellate Division order denying reargument or leave to appeal to Court of Appeals]. 3. Merits Addressed -- Remittals for Further Judicial Action Does the order leave further judicial or quasi-judicial action pending? This category encompasses many nonfinal orders. Counsel should note that the order need not expressly remit for further action; any order which contemplates further judicial or quasi-judicial action is nonfinal. 32 a. Examples of Remittals - Glass v Weiner, appeal dismissed 64 NY2d 775 [1985] [for assessment of damages]. - Matter of Donald U., lv dismissed 64 NY2d 603, 775 [1985] [for further "processing" of adoption proceeding]. - Matter of Danon v Department of Fin. of City of New York, appeal dismissed 64 NY2d 601, 885 [1984] [for reaudit]. - Matter of Karaminites v Reid, appeal dismissed 65 NY2d 784 [1985] [for imposition of appropriate penalty]. - Cornell Univ. v Bagnardi, appeal dismissed 65 NY2d 923 [1985] [to Zoning Board for further quasi-judicial action]. - State Communities Aid Assn. v Regan, appeal dismissed 66 NY2d 759 [1985] [for calculation of attorney's fees]. b. Exception -- Remittals for Ministerial Action Are the further proceedings merely ministerial? (see generally Karger, § 4:10, at 73-77). If so, the order will be considered final. - Matter of Green v Lo Grande, appeal dismissed 61 NY2d 758 [1984] [remittal to Town Board to issue a special use permit not ministerial because conditions could be imposed]. - Hirschfeld v IC Sec., lv dismissed 72 NY2d 841 [1988] [order remitting to Supreme Court for recalculation of damages in breach of contract counterclaim requires further judicial action and is therefore nonfinal]. - Fra-Dee Constr. v Roberts, lv denied 70 NY2d 611 [1987] [order remitting to Commissioner of Labor to reduce punitive interest rate on a back wages determination from 10% to 6% contemplates purely ministerial action and is final]. c. Exception -- Complete Relief Obtained Although further quasi-judicial action may be contemplated by the order, did the plaintiff/petitioner receive all relief requested? If so, the order will be considered final. 35 2. Implied Severance Are the pending claims impliedly severable from the decided claims? The doctrine of implied severance is applied only where the causes of action the order or judgment resolves "do not arise out of the same transaction or continuum of facts or out of the same legal relationship as the unresolved causes of action" (Burke v Crosson, 85 NY2d 10,16 [1985]). As this language from Burke suggests, this doctrine is rarely invoked and narrowly construed. Burke expressly rejects the analysis used in cases such as Sirlin Plumbing Co. v Maple Hill Homes (20 NY2d 401 [1967]), Orange & Rockland Utils. v Howard Oil Co. (46 NY2d 880 [1979]) and Ratka v St. Francis Hosp. (44 NY2d 604 [1978]) (Burke, 85 NY2d at 17 n 3). Burke holds that "an order dismissing or granting relief on one or more causes of action arising out of a single contract or series of factually related contracts would not be impliedly severable and would not be deemed final where the other claims or counterclaims derived from the same contract or contracts were left pending" (id. at 16). 3. Party Finality Are all claims asserted by or against one party decided? Referred to as party finality, this rule is an exception to the general proposition that the entire case must be resolved before resort to the Court of Appeals will be allowed. Simply stated, party finality is present in any order which fully disposes of that party's claims and all claims, including cross claims and third-party claims, against that party, without resolving the entire litigation (see generally Karger, §5:9 at 128-137). - Barile v Kavanaugh, 67 NY2d 392, 395 n 2 [1986] [party finality where separate causes of action are asserted against different sets of defendants and only one cause of action was finally decided]. - We're Assocs. Co. v Cohen, 65 NY2d 148, 149 n 1 [1985] [party finality as to individual defendants although claims remain pending against corporate defendant]. Compare General Instrument Corp. v Florin, lv dismissed 72 NY2d 909 [1988] [no party finality where order terminates claim against individual partners but leaves claims against partnership pending]. - Herbert v Morgan Drive-A-Way, 84 NY2d 836 [1994] [no party finality; although complaint dismissed as to owner and operator defendants, the complaint remained pending against administrator defendant and that 36 defendant's cross claim against owner and operator defendants had not been dismissed]. - Landon v New York Hosp., appeal dismissed in part 65 NY2d 639 [1984] [in a mother's and father's medical malpractice action, six causes of action asserted: two by each of the parents in their own right and two by the father on behalf of the injured infant. The four causes asserted by the parents were dismissed, leaving pending the two causes asserted on behalf of the child. Party finality as to the mother but not as to the father]. Party finality is an exception to the rule that the action or proceeding must be finally determined and there are instances where countervailing policy considerations make invocation of the doctrine unwarranted (see Sunrise Auto Partners, L.P. v H.N. Frankel & Co., 90 NY2d 842 [1997]). 4. Irreparable Injury Does the doctrine of irreparable injury apply to make an otherwise nonfinal order appealable? The doctrine of irreparable injury will apply to make appealable an otherwise nonfinal order in those rare instances where the order sought to be appealed from directs an irrevocable change in position that will cause immediate irreparable injury (see generally Karger, § 5:2, at 103-109). - Regional Gravel Prods. v Stanton, lv denied in part 71 NY2d 949 [1988] [irreparable injury where order directs transfer of title to real property]. - Matter of Christopher T., lv granted 63 NY2d 601 [1984] [in a proceeding to permanently terminate parental rights, order which authorizes DSS to consent to adoption as to one child and remits for further hearings as to a second child is nonfinal but appealable due to irreparable injury]. - Gardstein v Kemp & Beatley, Inc., mot to dismiss appeal denied 61 NY2d 900 [1984] [order directing corporate dissolution resulting in loss of corporate name and selling off of assets causes irreparable injury]. Compare May v Flowers, lv dismissed 65 NY2d 637 [1985] [order dissolving partnership, expelling certain defendants, and ordering an accounting, but which specifically authorized the business to continue under the same name nonfinal; no irreparable injury]. The irreparable injury doctrine is rarely used, and almost never used where the mere transfer of money is involved (see e.g. Town of Orangetown v Magee, appeal dismissed 86 NY2d 778 [1995]). 37 D. Separate Special Proceedings Does the order finally determine a separate special proceeding? Some apparently nonfinal orders that do not finally determine an entire litigation, but do finally determine a separate special proceeding, are final and appealable for purposes of the finality rule (see generally Karger, §§ 5:21-5:28, at 160-190). Some special proceedings are defined as such in the Consolidated Laws (see e.g. Family Court Act arts 4-10). Others have been recognized as such by the Court. Some examples of separate special proceedings follow: - Baker v New York City Health & Hosps. Corp., 36 NY2d 925 [1975] [an order granting or denying a motion pursuant to section 50-e of the General Municipal Law for leave to serve and file a late notice of claim on a municipality is a final order in a special proceeding]. Compare Marabello v City of New York, appeal dismissed 62 NY2d 942 [1984] [order denying application to supplement an original notice of claim pursuant to General Municipal Law § 50-e(6) is nonfinal] and Barrios v City of New York, lv dismissed 100 NY2d 534 [2003] [order granting application to amend a notice of claim is nonfinal even when the application to amend the notice of claim is the first application filed in court]. - Matter of Departmental Disciplinary Comm. for the First Judicial Dept. [Malatesta], lv denied 61 NY2d 601 [1983] [an order granting or denying a motion to quash a subpoena which is not issued in a pending proceeding, but rather precedes any judicial activity, commences a separate special proceeding]. Compare Weissman v 4 West 16th St. Sponsor Corp., appeal dismissed 68 NY2d 807 [1986] [order in pending proceeding is nonfinal]. - Matter of Codey [Capital Cities, Am. Broadcasting Corp.], 82 NY2d 521, 526-527 [1993] [a CPL 640.10 application by a party to a criminal proceeding in one state to compel the presence of a witness residing in another state or to compel the production of evidence located in another state commences a separate special proceeding on civil side of Court's docket]. - Matter of Board of Educ. of City of Auburn [Auburn Teachers Assn.], lv denied as unnecessary 38 NY2d 740 [1975] [order denying motion to stay arbitration is a final order resolving a separate special proceeding]; see also Flanagan v Prudential-Bache Sec., 67 NY2d 500, 505 n * [1986] [order granting or denying a motion to compel arbitration is a final order resolving a separate special proceeding]; CPLR 7503. However, an order which merely grants a motion to stay an action pending arbitration does not finally determine the action within the meaning of the Constitution (see Kushlin v Bialer, 26 NY2d 748 [1970]). 40 2. An order granting a new trial, but restricting the scope of the issues involved in the retrial (Kenford Co. v County of Erie, mot to dismiss appeal denied 72 NY2d 939 [1988]). However, an order granting a new trial of the whole case, thereby permitting every question raised in the first trial to be raised in the new trial, does not "necessarily affect" the final judgment rendered after retrial (Atkinson v County of Oneida, mot to dismiss appeal granted 57 NY2d 1044 [1982]). 3. An order granting a motion to dismiss counterclaims and third-party claims pleaded with the answer, for failure to state a cause of action (Siegmund Strauss, Inc. v 149th Realty Corp., 20 NY3d 37, 42-43 [2012]). 4. An order granting or denying a motion to amend a pleading to include a new cause of action or defense (Oakes, 20 NY3d at 644-645). D. Examples of Nonfinal Orders That Do Not Necessarily Affect Final Judgments 1. An order which denies a party the right to include certain materials in the record on appeal (Kasachkoff v City of New York, mot to dismiss appeal granted in part 67 NY2d 645 [1986]). 2. An order holding a party in contempt (New York City Tr. Auth. v Lindner, lv dismissed 58 NY2d 796 [1983]). 3. An order denying a party's application for class certification (Karlin v IVF Am., 93 NY2d 282, 290 [1999]). 41 FINALITY CONTINUUM TOO EARLY FINAL TOO LATE Order Administering Course of Litigation Order Awarding or Denying Provisional Relief (e.g., denial of stay pending appeal to intermediate appellate court) Order Denying Motion for Renewal, Reargument or Leave to Appeal; Order Denying Motion to Vacate Order Denying (in whole or part) Motion to Dismiss Order Denying (in whole or part) Motion for Summary Judgment Interlocutory Judgment (e.g., fixing liability but leaving damages to be tried) Order Resolving All Causes of Action in Complaint and all Cross Claims and Counterclaims, including all nonministerial items of relief Order Denying or Granting a Motion to Enforce Final Determination Or Order Denying Motion to Amend Prior Order or Judgment This table is intended for use as a conceptual aid only. Exceptions and variations abound, so make sure you research your particular situation.