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II. Motions for Leave to Appeal

II. MOTIONS FOR LEAVE TO APPEAL
 
A. Certiorari Jurisdiction
 
Effective January 1, 1986, CPLR 5601 was amended to eliminate some
traditional grounds for appeals as of right to the Court of Appeals in favor of
greater certiorari jurisdiction. Now, all civil appeals are heard by permission of
the Appellate Division or the Court of Appeals except where a constitutional
question is directly involved (see CPLR 5601[b]), where two Justices at the
Appellate Division dissented on a question of law (CPLR 5601[a]) or in the limited
circumstance prescribed for an appeal by stipulation for judgment absolute
(CPLR 5601[c]).
 
B. What is a Motion for Leave?
 
A motion for leave to appeal presents the opportunity for counsel to convince the
Court that their case is worthy of the Court's time and scarce judicial resources.
Motions for leave to appeal are randomly assigned to each of the Judges to
report, in writing, to the Court as a body.
All motions for leave are conferenced and voted on by all the Judges of the
Court. Leave to appeal will be granted upon the concurrence of two Judges
(CPLR 5602[a]).
 
C. Statutory Requirements -- Jurisdictional Predicates
 
1. Motions for Leave To Appeal from Final Appellate Division Orders – CPLR
5602(a)(1)(i)
 
CPLR 5602(a)(1)(i) allows a litigant to seek leave to appeal from a final
Appellate Division order entered in an action originating in the Supreme
Court, a County Court, a Surrogate’s Court, the Family Court, the Court of
Claims, an administrative agency, or an arbitration. This is by far the most
common jurisdictional predicate for a motion for leave. Note that an
appeal from a final Appellate Division order brings up for review prior
nonfinal orders and judgments that necessarily affect the final order (see
CPLR 5501[a]; see also Sections V-C and VII of this outline).
 
2. Motions for Leave To Appeal To Obtain Review of Prior Nonfinal
Orders Only – CPLR 5602(a)(1)(ii)
 
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]).
 
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]).
 
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]).
 
a. The timeliness chain should be established in a short paragraph at
the beginning of the motion papers which states: (a) each
procedural step taken subsequent to the entry of the order from
which leave to appeal is sought, (b) the dates all orders were
entered and served by a party with notice of entry, and (c) the date
the present motion was served. Note: (1) A motion for reargument
only at the Appellate Division, which is denied, does not extend a
party's time to move for leave to appeal to the Court of Appeals
(Eaton v State of New York, lv dismissed 76 NY2d 824 [1990]).
Where a motion for reargument is granted, however, even though
the original decision is adhered to, the time to appeal does run from
the service with notice of entry of the order granting reargument
(see Karger, § 12:5, at 445-446). (2) Where movant's prior motion
for leave to appeal at Appellate Division was untimely, the motion
for leave to appeal to this Court will be dismissed as untimely, even
if made within 30 days after service with notice of entry of an
Appellate Division order denying leave to appeal (Lehman v
Piontkowski, lv dismissed 84 NY2d 890 [1994]).
 
b. A motion must be served within 30 days of service by a party of the
order or judgment sought to be appealed from and notice of entry
(CPLR 5513[b]; see Matter of Reynolds v Dustman, 1 NY3d 559
[2003] [describing what constitutes “notice of entry”]). If the order
or judgment sought to be appealed from and notice of entry is
served by mailing within the state, five days is added to the 30 day
time period (CPLR 2103[b][2]); if the order or judgment sought to be
appealed from and notice of entry is served by mailing outside the
state but within the geographic boundaries of the United States, six
days is added to the 30 day time period (CPLR 2103[b][2]); if the
order or judgment sought to be appealed from and notice of entry is
served by overnight delivery service, one business day is added to
the 30 day time period (CPLR 2103[b][7]). Where service is by
mailing, service is complete upon deposit of the papers, properly
addressed and stamped, in a post office or official depository under
the exclusive care and custody of the United States Postal Service
within the United States (CPLR 2103[b][f][1]). Since the postmark
date may be later than the date papers are deposited in the mail,
the postmark on the envelope in which the Appellate Division order
with notice of entry is served should not be used as the starting
date for the period for seeking leave to appeal (see Kings Park
Classroom Teachers Assn. v Kings Park Central School Dist., 63
NY2d 742 [1984]). The return date is determined by counting 8
days (9 if service is by overnight delivery; 13 if by mail within the
state; 14 if by mail outside the state) and taking the next available
Monday. The return date need not come within the CPLR 5513(b)
30-day time limit.
Failure to move within the CPLR 5513(b) time period is a
jurisdictional defect requiring dismissal (but cf. CPLR 5520[a]
[providing Court with discretion to excuse late service or late filing if
the other act -- service or filing -- is timely completed]). Moreover,
failure to establish the timeliness chain may result in dismissal (see
Metzger v Metzger, lv dismissed 82 NY2d 735 [1993]).
 
c. Counsel must be especially careful to keep the timeliness chain
intact in the following scenario: where the Appellate Division
reverses a judgment and orders a new trial on damages unless
plaintiff stipulates to a reduced sum. The effect of such an order on
the computation of timeliness depends on the precise language of
the Appellate Division order (see Whitfield v City of New York, 90
NY2d 777, 780-781 [1997]). For example, where the Appellate
Division reverses a judgment and orders a new trial on damages
unless plaintiff stipulates to a reduced sum, that stipulation shall
effectively be treated by the Court for timeliness concerns as the
final judgment, and the appeal or motion for leave to appeal must
be made to the Court within 30 days (personal service) after the
appellant or movant is served with the stipulation and written notice
of entry (id.)
 
d. A party upon whom an adverse party has served a notice of appeal
or motion for leave to appeal may serve its own motion for leave to
appeal within 10 days (personal service) after service of the notice
of appeal or motion by the adverse party, or within 30 days
(personal service) after service of the Appellate Division order with
written notice of entry, whichever is longer, if such motion is
otherwise available (CPLR 5513[c]). If the adverse party had
moved at the Appellate Division for leave to appeal to the Court of
Appeals, the party relying on CPLR 5513(c) will not be timely
unless that party also timely moved at the Appellate Division (511
W 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002];
Capasso v Capasso, cross mot for lv dismissed 70 NY2d 988
[1988]).
 
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.
 
 
 
Reprinted from The New York Court Of Appeals Civil Jurisdiction And Practice Outline, September 2020, See  https://www.nycourts.gov/ctappS/forms/civiloutline.pdf  [Last accessed August 21, 2021]
 
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