III. Guidelines for Preparing a Motion for Leave to Appeal
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 ).
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.
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.