The New York Court of Appeals – A Rarified Practice

By Terrence James Cortelli - a Former New York Court of Appeals Staff Attorney

The Court of Appeals, New York State's highest court, is composed of a Chief Judge and s ix Associate Judges, each appointed to a 14-year term. New York's highest appellate court was established to articulate statewide principles of law in the context of deciding particular lawsuits. The Court thus generally focuses on broad issues of law as distinguished from individual factual disputes. Towards this end, the Court is very selective in terms of what appeals it is willing to consider. It has established a specific jurisprudence that outlines exactly when the Court would be willing to hear your appeal to accomplish this stated goal.

In the civil litigation context, one way the Court will consider your matter is by appealing as of right.1 An appeal as of right essentially occurs under two scenarios. First, the Court will take the appeal if there is a double dissent at the Appellate Division.2 The dissent, however, must be on a question of law and in the appellant's favor. For instance, a dispute between Appellate Division Justices over how to interpret a statute is a question of law3 but an argument over conflicting interpretations of facts is not.4

An appeal as of right also exists where the appeal involves a Constitutional question.5 The caveat, however, is that the Constitutional issue must be "substantial" and directly involved. As such, if the Appellate Division rendered its decision without having to consider the constitutional issue, it is not directly involved.6 And, insofar as substantiality is concerned, if the Constitutional issue is not "novel" or unlikely to be resolved in the appellant's favor, the Court will not hear the case.7 There are a few other as of right scenarios but are fairly uncommon and beyond the purview of this article.8

If an appeal as of right does not lie, a litigant must request permission or leave from the Court to consider the appeal.9 This is done by way of a motion. The motion must contain the underlying record on appeal and supporting appellate briefs.10 More than a brief on the merits with a notice of motion, it is an opportunity for counsel to convince the Court that their case is worthy of the Court's time and limited judicial resources. Motions are randomly assigned to each of the Judges to report, in writing, to the Court as a body. All motions are conferenced and voted on by all Judges. Leave to appeal will be granted upon the concurrence of two Judges.11

The Court warns that in order to obtain leave, the movant must show that the questions of law presented by the appeal are "novel or of public importance, or involve a conflict with prior decisions of [the Court of Appeals], or involve a conflict among the departments."12 In other words, the Court only wants to hear those cases that involve significant issues that involve a large part of our society. Much like the United States Supreme Court, the Court of Appeals is looking for the big and juicy cases. Minor squabbles between litigants that will not have an effect on other parties or similar cases are not the type of matters with which the Court wants to be involved. Thus, the Court is more willing to consider a case involving what constitutes the proper interpretation of Section 240 of the Labor Law13 as opposed to whether Supreme Court properly held that plaintiff failed to show that defendant lacked knowledge of a dog's vicious propensities.14 Further, the purported misapplication of settled law is rarely the type of appeal the Court wants to consider.15

Now, before the Court even considers whether the appeal is "novel," it must be shown that the Appellate Division Order, from which one seeks leave to appeal, is "final"16 and that the appeal is timely17. Timeliness is the easier issue. The movant must show that the motion for leave was made within 30 days from the date of the service with notice of entry of the Appellate Division order (add 5 days for service by mail as per CPLR 2103).18 Litigants must include proof of service so that the Court can determine whether the motion is indeed timely.19 Finality, however, is a much more complicated issue to consider.

Aside from being mandated by the New York State Constitution, the concept of finality stems, in part, from the concern with the Court issuing advisory opinions.20 The Court does not want to decide an intermediate order which may ultimately have no impact on the final resolution of the case.21 As such, the Court requires that all orders from which appellants seek leave must be final and that a final order is one that disposes of all causes of action between the parties and leaves nothing for further judicial intervention apart from mere ministerial matters.22 To determine finality, the Court looks to the point on the "continuum of litigation" where the matter is presently pending.23 There are orders which clearly come too early on the continuum, such as those administering the course of litigation or disposing of motions for temporary or provisional relief. Likewise, there are orders which come too late along the continuum, such as those seeking enforcement of a previously rendered final order. The key, then, is to explain to the Court that the order from which leave is sought is actually a final order.24

For instance, an order resolving a motion to amend a pleading25 or construing statutory language regarding venue26 are "too early" on the continuum because they do not resolve the merits of the matter. Too much is left to be decided in those cases. On the other hand, orders resolving motions to enforce a judgment27 or contempt issues28 are too late. Orders resolving motions to vacate or reargue are too late as well.29 Sometimes, the merits have been addressed, but the order is still considered nonfinal. This occurs where a summary judgment motion has been resolved, but the ensuing order only partially dismisses causes of actions, thus leaving other causes of actions pending.30 Or, where a motion to dismiss was denied, thus leaving the entirety of complaint still at issue.31 If the order is nonfinal, but likely to cause irreparable harm, the Court can render the order appealable.32

In sum, Court of Appeals practice is both complicated and extremely nuanced. Although timeliness is a relatively straight forward issue, determining finality can be extremely difficult. Finality applies to both appeals as of right as well as to those based upon motions for leave. But, putting those issues aside, the bigger and more important issue is explaining to the Court why the Court should hear your client's case. As per the Court's own practice guide: The surest way to get the Court to hear your appeal is to

"present a preserved, pure legal question which is unsettled and which has broad State-wide implications. Barring that, at least present a 'clean' legal issue. Present something new that will allow the Court to develop New York's law. Do not expect the Court to resolve factual disputes or to pass on common exercises of discretion by the lower Courts."33

In other words, have a case that presents a "big" and "juicy" issue that stems from an order that "finally" resolves the case, or do not waste your time and, more importantly, your client's money.


1 CPLR 5601; Rules of Ct of Appeals (22 NYCRR) § 500.10.

2 CPLR 5601(a).

3 Scheer v. Koubek, 126 A.D.2d 922, 511 N.Y.S.2d 435 (3rd Dept. 1987) (two judges dissenting with majority regarding correct interpretation of a "serious injury" as envisioned by the Insurance Law), mot to dismiss appeal denied 69 N.Y.2d 983, 516 N.Y.S.2d 662 (apparently internally holding that dissent is on a question of law), order rev'd 70 N.Y.2d 678, 518 N.Y.S.2d 788 (reversing Appellate Division order, construing "serious injury" term of the Insurance Law in line with the dissent of the Third Department).

4 Cindy M.G. v. Michael B.A., 130 A.D.2d 917, 516 N.Y.S.2d 328 (3rd Dept. 1987) (dissent contesting majority's application of well-settled "best interests" test to sui generis fact pattern in a child custody dispute), appeal dismissed 71 N.Y.2d 9­­­­­48, 948-49, 528 N.Y.S.2d 826 (1988) (dismissing appeal "upon the ground that the two-Justice dissent is not on a question of law").

5 CPLR 5601(b)(1).

6 Fossella v. Dinkins, 66 N.Y.2d 162, 167, 495 N.Y.S.2d 352, 354 (1985) (stating that because "the statutes and policies of this State are alone sufficient to sustain the decisions reached below, "[t]here is no need to reach the Federal constitutional questions or the other issues raised in this proceeding" and, as such, the Court held that no constitutional question was directly involved and dismissed the appeal).

7 Matter of the Adoption of David A. C., 43 N.Y.2d 708, 709, 401 N.Y.S.2d 208 (1977) (dismissing appeal because the legal issue presented had already been "clearly" resolved against appellant in prior decisions).

8 See e.g. CPLR 5601(b)(2) (direct appeal from court of original instance) and CPLR 5601(c) (appeal from stipulation for judgment absolute).

9 CPLR 5601.

10 Rules of Ct of Appeals (22 NYCRR) §§ 500.1; 500.22(b).

11 CPLR 5602(a).

12 Rules of Ct of Appeals (22 NYCRR) § 500.22(b)(4).

13 See Blake v. Neighborhood Hous. Servs. of New York City, Inc., 301 A.D.2d 366, 367, 754 N.Y.S.2d 244, 245 (1st Dept. 2003) (holding that a factual issue was posed whether plaintiff's injury was caused by some inadequacy of the ladder or was solely attributable to the manner in which plaintiff used the ladder), lv granted 99 N.Y.2d 511, 760 N.Y.S.2d 102, App. Div. Order affd 1 N.Y.3d 280, 803 771 N.Y.S.2d 484, 492 (2003) (in affirming the Appellate Division Order, the Court used the opportunity to discuss proximate cause and "absolute liability" in the Labor Law context and appeared to strive to remind the bar that falling from a ladder - alone - is not enough to establish a claim).

14 See Blackstone v. Hayward, 304 A.D.2d 941, 757 N.Y.S.2d 160 (3rd Dept. 2003) (held that owners of 10-year-old dog, who they had since he was four weeks old and who had neither bitten or growled at anyone before the incident nor displayed a vicious or aggressive nature, could not be held strictly liable for personal injuries resulting from a dog bite), lv denied 100 N.Y.2d 511, 766 N.Y.S.2d 164.

15 New York Court of Appeals Clerk's Office, The New York Court of Appeals Civil Jurisdiction and Practice Outline, at p. 13-14 (section entitled, "Common Errors in Motions for Leave") (stating, "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.") (available at https://www.nycourts.gov/ctapps/forms/civiloutline.pdf [accessed Nov. 11, 2014]).

16 N.Y. CONST. art. VI, §§3(1) and (2).

17 CPLR 5513; Rules of Ct of Appeals (22 NYCRR) § 500.22(b)(2).

18 See id.

19 Rules of Ct of Appeals (22 NYCRR) § 500.22(a).

20 See Schienkman, Alan D., The Civil Jurisdiction of the New York Court of Appeals: The Rule and Role of Finality, 54 ST. JOHN'S L. REV 443, 459-460 (1980) (available at: http://scholarship.law.stjohns.edu/lawreview/vol54/iss3/1 [accessed Nov. 25, 2014]).

21 See id.

22 See Burke v. Crosson, 85 N.Y.2d 10, 623 N.Y.S.2d 524 (1995).

23 The New York Court of Appeals Civil Jurisdiction and Practice Outline, supra, at p. 27 (section entitled, "What is a Final Determination? - A Systematic Approach").

24 The Rules of the Court of Appeals (22 NYCRR § 500.22[b][3]) requires a showing that the order (or judgment) sought to be appealed is a final one.

25 See Powell v. Gates-Chili Cent. School Dist., 41 N.Y.2d 827, 828, 393 N.Y.S.2d 390, 391 (1977).

26 Jackson v. City of Buffalo, 30 N.Y.2d 749, 750, 333 N.Y.S.2d 175, 175 (1972).

27 See New York State Ass'n of Counties v. Axelrod, 213 A.D.2d 18, 25, 629 N.Y.S.2d 335 (3rd Dept. 1995) (considering order resolving motion to enforce judgment), lv dismissed 87 N.Y.2d 918, 641 N.Y.S.2d 599 (1996).

28 See Pub. Employees Fed'n (PEF) v. Div. of Classification & Comp. of New York State Civil Serv. Comm'n, 111 A.D.2d 516, 518, 489 N.Y.S.2d 390 (3rd Dept. 1985) (resolving contempt issues), lv dismissed 66 N.Y.2d 758, 497 N.Y.S.2d 1028.

29 See In re Dietz' Estate, 29 N.Y.2d 915, 915, 328 N.Y.S.2d 864 (1972).

30 See Dupuy v. Hayner Hoyt Corp., 221 A.D.2d 901, 634 N.Y.S.2d 17 (4th Dept. 1995) (granting defendant's motion to strike cause of action based upon Labor Law Section 240(1) violation but leaving plaintiff's remaining causes of action pending), lv dismissed, 87 N.Y.2d 1056, 644 N.Y.S.2d 148 (1996).

31 See Tenavision, Inc. v. Newman, 45 N.Y.2d 145, 405 N.Y.S.2d (1978).

32 See generally Karger, Powers of the Court of Appeals § 5:2, at 103-109 (rev 3d ed).

33 The New York Court of Appeals Civil Jurisdiction and Practice Outline, supra, at p. 15.