An appeal as of right must meet one of the following statutory jurisdictional predicates (CPLR 5601) or it is subject to dismissal upon motion or by the Court sua sponte (see 22 NYCRR 500.10).
1. Two-Justice Dissent at the Appellate Division -- CPLR 5601(a)
a. The dissent must be on a question of law (compare Scheer v Koubek, mot to dismiss appeal denied 69 NY2d 983 [1987] [difference between majority and dissent centered on conflicting interpretations of Insurance Law and consequent conclusion as to whether plaintiff made out a prima facie case: legal question] and Matter of Gardstein v Kemp & Beatley, Inc., mot to dismiss appeal denied 61 NY2d 900 [1984] [dispute between majority and dissent focuses on sufficiency (not weight) of the evidence to support finding of corporate oppression of shareholder: legal question] with Merrill v Albany Med. Center Hosp., appeal dismissed 71 NY2d 990 [1988] [dissent predicated on unpreserved issues] and Matter of Cindy M.G. v Michael A., appeal dismissed 71 NY2d 948 [1988] [difference between majority and dissent based on differing view of underlying facts, not applicable legal standard]; see generally Arthur Karger, Powers of the New York Court of Appeals § 6:15, at 203-207 [3d ed rev 2005]).
b. The dissent must be in appellant's favor (Matter of Barron & Vesel v Gammerman, cross appeal dismissed 63 NY2d 671 [1984]; Christovao v Unisul-Uniao de Coop. Transf., 41 NY2d 338 [1977]).
c. The Appellate Division order must be final.
2. Constitutional Question -- CPLR 5601(b)(1) -- Appeal from Final Appellate Division Order
The constitutional question must be both directly involved in the Appellate Division order and substantial. The appellant has the burden of establishing the direct involvement of the constitutional question (see Karger, § 39, at 245).
a. Direct Involvement (see Karger, § 7:8; 7:9-7:10, at 231-243).
i. The constitutional question must have been properly raised in the courts below. Thus, the issue must be preserved before the court of original instance (Matter of Schulz v State of New York, 81 NY2d 336, 344 [1983]; Matter of Shannon B., appeal dismissed 70 NY2d 458, 462 [1987]), and raised again at, or at least be passed upon by, the Appellate Division on an appeal to that court, if one was taken (see Matter of Skenesborough Stone, Inc. v Village of Whitehall, appeal dismissed 95 NY2d 902 [2000]).
ii. The Appellate Division must have taken a view of the case that necessarily required it to pass upon the constitutional issue raised. Thus, an appeal will be dismissed where the Appellate Division's decision rests on an independent nonconstitutional ground (Marwanqa v Human Resources Admin., mot to dismiss appeal granted 69 NY2d 1037 [1987] [Statute of Limitations]; Matter of Fossella v Dinkins, appeal dismissed 66 NY2d 162,168 [1985] [statutory grounds]; Matter of Cioffi v Town of Guilderland, appeal dismissed 69 NY2d 984 [1987] [mootness]; Burns v Egan, appeal dismissed 68 NY2d 806 [1986] [res judicata, laches, standing]).
b. Substantiality (see Karger, §7:5, at 226-228) Whether a substantial constitutional question is presented is a determination that must be made on a case by case basis. The Court has examined the nature of the constitutional interest at stake, the novelty of the constitutional claim, whether the argument raised may have merit, and whether a basis has been established for distinguishing a state constitutional claim (if asserted) from a federal constitutional claim. The Court has stated that questions that have been "clearly resolved against an appellant's position . . . lack the degree of substantiality necessary to sustain an appeal as of right under CPLR 5601(b)(1)" (Matter of David A.C., 43 NY2d 708, 709 [1977]). On the other hand, a constitutional argument 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 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 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 CPLR 5601(a) or (b)(1), except finality, two additional requirements must be met:
i. The order or judgment appealed from must finally determine the action or proceeding in which the Appellate Division issued its earlier nonfinal order (Park Slope Jewish Ctr. v Stern, appeal dismissed 72 NY2d 873 [1988] [judgment restating contents of nonfinal Appellate Division order]; Bouchard v Abbott, appeal dismissed 67 NY2d 983 [judgment incorporated terms of Appellate Division order and did not resolve factual dispute left outstanding by the order]).
ii. The prior Appellate Division order must necessarily affect the final order or judgment appealed from (Javarone v Pallone, appeal dismissed 90 NY2d 884 [order denying motion to vacate stipulation of discontinuance does not necessarily affect final judgment disposing of remaining claims]; see Karger, § 9:5, at 297-314 [1997]). Accordingly, CPLR 5601(d) is not available to obtain review of an Appellate Division order entered in a prior action or proceeding (see Matter of Concerned Citizens To Review Jefferson Val. Mall v Town Bd. of Town of Yorktown, 54 NY2d 957 [1981]; see also Section VII of this outline for more on the "necessarily affects" doctrine).
B. Rule 500.10 Review -- Examination of Subject Matter Jurisdiction As stated in Rule 500.10, the Court may determine, sua sponte, whether it has subject matter jurisdiction over an appeal taken as of right or by permission of the Appellate Division. This is sometimes referred to as Sua Sponte Dismissal or SSD review or “jurisdictional review.” Jurisdictional review is invoked when a question arises concerning the validity of a jurisdictional predicate for an appeal as of right or the validity of an Appellate Division leave grant in a civil case. Since the Court’s jurisdiction was significantly streamlined by legislation effective January 1, 1986 (see L 1985, ch 300), jurisdictional review is invoked when a question is raised in four main areas: finality, constitutional questions, direct appeals and two-Justice dissents. If the Court determines, after an inquiry made to the parties involved, that a jurisdictional predicate is lacking, it will dismiss the appeal sua sponte. Under the authority of Rule 500.10, the Clerk of the Court screens all appeals taken as of right pursuant to CPLR 5601 or by permission of the Appellate Division pursuant to CPLR 5602 (b) to determine the validity of the jurisdictional predicate and timeliness of the appeal. If a jurisdictional question arises, a jurisdictional inquiry letter is sent to counsel inviting written comment. After comments are received or the period for counsels’ comment expires, the Court determines whether to retain or dismiss the appeal.