Permissible Appellant - Aggrieved Party and Mootness Doctrine
Permissible appellant—“Aggrieved party” and Mootness doctrine
Any “aggrieved party” may appeal from any “appealable” judgment or order, unless the order was granted upon the default of the aggrieved party.1 It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal. This principle, forbids courts to pass on academic,2 hypothetical, moot,3 or otherwise abstract questions.4 The requirement that an appellant be aggrieved by a judgment or order appealed from is contained in CPLR 5511. “Generally, the party who has successfully obtained a judgment or order in his favor is not aggrieved by it, and, consequently, has no need and, in fact, no right to appeal. The major exception to this general rule, however, is that the successful party may appeal or cross-appeal from a judgment or order in his favor if he is nevertheless prejudiced because it does not grant him complete relief. This exception would include those situations in which the successful party received an award less favorable than he sought or a judgment which denied him some affirmative claim or substantial right. But where the successful party has obtained the full relief sought, he has no grounds for appeal or cross appeal.5 This is so even where that party disagrees with the particular findings, rationale or the opinion supporting the judgment or order below in his favor, or where he failed to prevail on all the issues that had been raised.”6 A party is aggrieved within the meaning of CPLR 5511 “when he or she asks for relief but that relief is denied in whole or in part,” or, when someone “asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part.”7 Persons who ask for relief in the court that made the order or judgment from which the appeal is taken, are not aggrieved if they received all the relief they requested, even though the court may have made some finding of fact or ruling of law with which they are dissatisfied. The inverse of the rule is if a person asks for relief, to the extent that such relief is denied, he or she is aggrieved. The concept of aggrievement is about whether relief was granted or withheld, and not about the reasons for the granting or denial of relief. Where someone asks for relief against the appellant, which the appellant opposes, and the requested relief is granted in whole or in part, the appellant is aggrieved. The difficulty arises where someone seeks relief against a person other than the appellant, but on the appeal, the appellant challenges the outcome of that request for relief against the third person. There is a two-pronged definition of the concept of aggrievement which, “although it might be subject to some rare exceptions,” should cover the broad majority of cases. First, a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part.8 A person or entity which is not a party to the action may become aggrieved and have standing to appeal. This frequently occurs9 in matrimonial actions where a non party is affected adversely by a temporary restraining order or an attorney for a party is aggrieved by the determination on a counsel fee application made in his or her own name.10 However, where an attorney for a party makes an application for counsel fees on behalf of his client, rather than in his own name as authorized by statute, he is not aggrieved by the order denying the motion.11 The mootness doctrine precludes courts from considering questions which, although once active, have become academic by the passage of time or by a change in circumstances.12 In general, an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. The ability of an appellate decision to directly and immediately impact the parties' rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand “what ifs.” Even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal.13 The Court of Appeals has consistently applied an exception to the mootness doctrine, permitting judicial review, where the issues are substantial or novel, likely to recur and capable of evading review.14 If academic, an appeal is not to be determined15 unless it falls within the exception to the doctrine that permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would otherwise be nonreviewable. The exception to the mootness doctrine requires the existence of three common factors: (1) a likelihood the issue will repeat, either between the same parties or among other members of the public; (2) an issue or phenomenon typically evading appellate review; and (3) a showing of significant or important questions not previously passed upon.16 Said another way, an appeal which is moot falls within the exception to the mootness doctrine where the issue involved “(1) is likely to recur, (2) will typically evade review and (3) is substantial and novel.”17 While it is the general policy of New York courts to simply dismiss an appeal, which has been rendered academic, vacatur of an order or judgment on appeal may also be an appropriate exercise of discretion where necessary in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences18 or precedent.19 No appeal lies from an order or judgment granted on default. Where a judgment or order is granted upon default the “aggrieved party” must move to vacate the order or judgment that was granted upon default.20 If the motion is denied, he may then appeal from the order denying the motion.21 A party is not aggrieved when he is awarded more than he requests. Where the trial court awards the plaintiff more than she asked for (the stipulated amount of support), she was not “aggrieved” and her cross-appeal should be dismissed.22 A party is not aggrieved by an order granted on consent. Where the parties stipulated to a financial settlement agreement on the record, the wife testified, the husband withdrew his answer and the wife thereafter moved to vacate the divorce and for an order setting the financial issues down for a hearing; the wife was held not “aggrieved,” since she was granted the relief she sought.23 Where both parties agree not to contest each other's claims for divorce and to take mutual divorces, and the trial court, after receiving competent oral proof of the grounds for divorce, granted dual divorces, the husband was not an “aggrieved” party entitled to appeal.24
1 CPLR 5511. [no appeal lies from an order entered upon the parties' consent] In Matter of Cherilyn P., 192 A.D.2d 1084, 596 N.Y.S.2d 233 (4th Dep't 1993), the Appellate Division dismissed an appeal, holding that no appeal lies from an order entered upon the parties' consent to an adjudication of neglect and the entry of a dispositional order, pursuant to which the child was released to her mother, since the Respondent was not aggrieved thereby. [appellant not aggrieved and appeal dismissed where order pending and undecided] In Mogollon v. Mogollon, 259 A.D.2d 678, 686 N.Y.S.2d 849 (2d Dep't 1999), the Appellate Division affirmed a Judgment which, after an inquest, directed the parties to each pay 50% of the marital obligations and directed that upon the sale of the marital residence, the proceeds to be equally divided. The Appellate Division noted that the wife's request that the Appellate Division direct the husband to pay 1/2 of the parties' older son's out of pocket college expenses was not addressed by the Supreme Court and the Judgment appealed from contained no decretal paragraph either granting or denying this relief. Thus, the wife's request was not before the Appellate Division and remained pending and undecided before the Supreme Court. In any case, at the time the Judgment was entered, the child was over the age of 21 years. [Appellant not aggrieved] In Valenson v. Kenyon, 80 A.D.3d 799, 914 N.Y.S.2d 753 (3d Dep't 2011), Petitioner (father) and respondent Jolene Kenyon (mother) had one child. In May 2005, respondent Karen Kenyon (grandmother) and her husband obtained an order that granted them physical custody of the child, without prejudice, and allowed either parent to petition for modification. Following the grandfather's death and other circumstances within the family, the father commenced this proceeding seeking modification of the existing order and primary physical custody of the child. After a hearing, Family Court awarded joint legal custody to the father and the grandmother, with primary physical custody remaining with the grandmother and scheduled visitation for the father. The mother appealed. The appeal was dismissed. The Appellate Division held that the mother was not aggrieved by Family Court's determination. To be aggrieved, a party must have a direct interest in the matter at issue that is affected by the result, and the adjudication must have binding force against the party's rights, person or property. The mother was not a custodial parent under the prior order, she sought no change in that status in the 2008 proceeding, and its resolution did not alter her status or affect her legal rights; thus, her direct interests were not affected. Her status as the child's mother and a party to the proceedings, without more, did not establish that she was aggrieved and, accordingly, she lacked standing to pursue the appeal.
2 In Carl J.B. v. Dorothy T., 186 A.D.2d 736, 589 N.Y.S.2d 53 (2d Dep't 1992) the Appellate Division dismissed the father's appeals from two orders of the Family Court. One order directed that the mother have unsupervised visitation with the parties' child between July 8, 1991 and August 31, 1991. The second order awarded temporary custody of the child to the mother. Subsequent to the oral argument of the father's appeals, the Family Court issued an Order granting the mother permanent custody of her daughter, thereby rendering academic the orders appealed from. [appeal academic] In Chertok v. Chertok, 150 A.D.2d 327, 543 N.Y.S.2d 315 (2d Dep't 1989), the Appellate Division dismissed the appeal as academic because subsequent to the taking of the appeal the Family Court vacated the order appealed from. [appel academic] In Reich v. Reich, 149 A.D.2d 676, 540 N.Y.S.2d 316 (2d Dep't 1989), the Appellate Division dismissed an appeal in a custody case, “as academic” because the child had attained the age of 18 and “can no longer be the subject of a custody order.”
3 [appeal moot] In Forsyth v. Avery, 263 A.D.2d 705, 692 N.Y.S.2d 864 (3d Dep't 1999), proceedings on custody order awarding custody to child's mother, child's father petitioned for visitation. The Family Court granted the petition and mother appealed. The Appellate Division dismissed the appeal, holding that it was rendered moot by passage of visitation date established in challenged order. Inasmuch as the date for court-ordered visitation had since passed and respondent had not challenged any other aspect of Family Court's order, the appeal was moot. The Court noted that, if the issue of visitation arose again, the circumstances will likely have changed since petitioner was due to be released in July 1998.
5 In In re Xavier II., 81 A.D.3d 1222, 917 N.Y.S.2d 740 (3d Dep't 2011), Respondent was the father of a son (born in 2004) and a daughter (born in 2007). In November 2009, the son told his teacher that respondent had struck him with a belt. After a child protective investigation, petitioner commenced a neglect proceeding alleging that respondent used excessive corporal punishment. Family Court conducted a fact-finding hearing at which respondent testified that on a single occasion he struck his son four times with his belt. The court found that respondent's actions constituted neglect, but that the aid of the court was not required and dismissed the petition pursuant to FCA §1051(c). Respondent appealed, contending that the facts were insufficient to establish neglect. The Appellate Division dismissed the appeal. It stated that having obtained the full relief available, respondent was not aggrieved and had no basis for an appeal. A party obtaining such relief is not aggrieved even where that party disagrees with the particular findings, rationale or the opinion supporting the judgment or order below in his [or her] favor, or where he [or she] failed to prevail on all the issues that had been raised. The exception sometimes invoked to permit prevailing parties to appeal when incomplete relief was granted or an important legal right was affected is inapplicable (citing Becker v. Becker, 36 N.Y.2d 787, 369 N.Y.S.2d 697, 330 N.E.2d 646 (1975); Lincoln v. Austic, 60 A.D.2d 487, 490, 401 N.Y.S.2d 1020 (3d Dep't 1978)). As no adjudication of neglect was made, no prejudicial impact in potential future legal proceedings results. A neglect adjudication is a permanent and significant stigma which is capable of affecting a parent's status in potential future proceedings. In contrast, the determination in this matter was not preserved, and can neither affect the parent's status nor bear other prejudicial effect in future legal proceedings. It rejected his argument that he was aggrieved as a practical matter because he allegedly suffered a loss of employment as a result of the determination. Even were this claim sufficiently documented in the record to permit consideration, it is indistinguishable from other collateral consequences of involvement in legal proceedings and does not demonstrate that a substantial and important right of respondent has been adversely affected and that the interests of justice require that he be permitted to appeal the adverse finding.
6 Parochial Bus Systems, Inc. v. Board of Educ. of City of New York, 60 N.Y.2d 539, 544–45, 470 N.Y.S.2d 564, 458 N.E.2d 1241, 15 Ed. Law Rep. 855 (1983).
7 Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 (2d Dep't 2010); Rojas v. Paine, 125 A.D.3d 742, 4 N.Y.S.3d 85, 87 (2d Dep't 2015); Edgar S. ex rel. Lita S. v. Roman, 115 A.D.3d 931, 982 N.Y.S.2d 529 (2d Dep't 2014).
9 [non-party corporation aggrieved by TRO] In Ricatto v. Ricatto, 4 A.D.3d 514, 772 N.Y.S.2d 705 (2d Dep't 2004) the defendant husband in the matrimonial action and the nonparty David T. Jacobson each had a 50% membership interest in the following limited liability companies which hold title to certain real property in Manhattan: 346 East 13 LLC, 516 East 12 LLC, and 338 West 17 LLC (hereinafter referred to collectively as the LLCs). By order dated March 14, 2002 (TRO), the Supreme Court, temporarily enjoined the defendant from, inter alia, disposing of or diminishing his interest in the LLCs. The TRO was filed with the City Register of the City of New York. Jacobson and the LLCs (appellants) moved for an order, inter alia, declaring that the TRO did not apply to the LLCs and directing the removal of the TRO from the files of the City Register insofar as it referred to the LLCs' properties. The Supreme Court granted the motion only to the extent of directing the City Register to remove from its files that portion of the TRO as affected the property owned by 338 West 17 LLC so that the property could be sold. However, the Supreme Court directed that, if any new property was obtained as a result of a “like exchange” purchase, the new property would be subject to the TRO. The Appellate Division held that although the appellants were nonparties, they were aggrieved by the denial of their motion in the Supreme Court and therefore had standing to prosecute the appeal. [non-party son aggrieved] In Acito v. Acito, 72 A.D.3d 493, 898 N.Y.S.2d 133 (1st Dep't 2010) Supreme Courts order which granted plaintiff's motion to dismiss the divorce action based on the death of defendant and denied the temporary administrator's cross motion for an order substituting the decedent's estate as party defendant and entering judgment of divorce nunc pro tunc was affirmed. Although the cross movant, defendant's son, was a nonparty in this divorce action, he was aggrieved by the denial of his cross motion, and thus had standing to prosecute the appeal (Ricatto v. Ricatto, 4 A.D.3d 514, 515, 772 N.Y.S.2d 705 (2d Dep't 2004)).
10 [non-party former attorney aggrieved] In Saunders v. Guberman, 130 A.D.3d 510, 14 N.Y.S.3d 334 (1st Dep't 2015) the nonparty appellant law firm had standing to appeal the denial of the January 24, 2013 order. The right to seek counsel fees under Domestic Relations Law §237 (a) includes the right to appeal the denial of such fees. Following the January 24, 2013 order, the firm timely served and filed a notice of appeal on defendant's behalf and may, on this basis, maintain the appeal even after having been granted leave to withdraw from representation for nonpayment of counsel fees. “If lawyers terminated without cause lose their right to petition the court for a fee award from an adversary spouse, the less affluent spouse would suffer the consequences” (Frankel, 2 NY3d at 607). The same held true here. The firm was not required to file a separate notice of appeal to establish and maintain standing to appeal the January 24, 2013 order, and defendant could not cause the firm, which timely served and filed a notice of appeal on its own behalf from the August 6, 2013 order, to lose standing by withdrawing his separately filed notice of cross appeal of that order. On the merits, the applications for interim counsel fees were improperly denied.
11 In Saunders v. Guberman, 124 A.D.3d 419, 1 N.Y.S.3d 49 (1st Dep't 2015), the Appellate Division held that the nonparty appellant law firm lacked standing to appeal from the denial of defendant husband's motion for interim counsel fees. Domestic Relations Law §237(a) authorizes the court in its discretion to direct either spouse to pay counsel fees to the other spouse “to enable that spouse to carry on or defend the action or proceeding.” The law firm was not a “spouse” in the divorce action and therefore any counsel fees requested by it were not authorized by the Domestic Relations Law. The right to seek remedy for the court's allegedly improper denial of the motions for interim counsel fees belonged solely to defendant husband. While defendant husband initially appealed from both of the court's orders denying his requests for interim counsel fees, he had since withdrawn his notices of appeal.
12 In re Melinda D., 31 A.D.3d 24, 815 N.Y.S.2d 644 (2d Dep't 2006).
13 Veronica P. v. Radcliff A., 24 N.Y.3d 668, 3 N.Y.S.3d 288, 26 N.E.3d 1143 (2015) (The expiration of the order of protection did not moot the appeal because the order still imposed significant enduring consequences upon respondent, who might receive relief from those consequences upon a favorable appellate decision.).
14 City of New York v. Maul, 14 N.Y.3d 499, 903 N.Y.S.2d 304, 929 N.E.2d 366 (2010).
15 Grace E.-J. v. Robert J.-R., 158 A.D.3d 509, 68 N.Y.S.3d 713 (1st Dep't 2018) the Appellate Division held that the exception to the mootness doctrine does not apply to an appeal from an order denying a motion for contempt for violation of a temporary order of protection because the denial of the motion, seeking to hold the mother in contempt for a violation of a temporary order of visitation, does not stand as a permanent stigma that may impact the father's standing in any future proceedings (In re Joshua Hezekiah B., 77 A.D.3d 441, 442, 908 N.Y.S.2d 675 (1st Dep't 2010). There was nothing to prevent the father from testifying at a hearing, on his pending custody petition, about the mother's failure to abide by the court's temporary order of visitation and the impact it had upon his relationship with the child, or from moving for contempt if she was violating the final order of visitation.
16 In re Melinda D., 31 A.D.3d 24, 815 N.Y.S.2d 644 (2d Dep't 2006).
17 Chenier v. Richard W., 82 N.Y.2d 830, 832, 606 N.Y.S.2d 143, 626 N.E.2d 928 (1993); Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 (1980); In re Bobbijean P., 46 A.D.3d 12, 842 N.Y.S.2d 826 (4th Dep't 2007) (citing Matter of Kevin R., 251 A.D.2d 1022, 1023, 674 N.Y.S.2d 226 (4th Dep't 1998)). [appeal moot but appellant aggrieved by expired order of protection] In Combs v. Solomon, 261 A.D.2d 473, 690 N.Y.S.2d 103 (2d Dep't 1999), petitioner commenced a family offense proceeding, seeking an order of protection excluding her sister from their shared residence. The Family Court granted petition, and the excluded sister appealed. The Appellate Division reversed, holding that the appeal was not rendered moot by expiration of the protection order;
[appeal moot, but exception to the mootness doctrine applicable, where the issues are substantial or novel, likely to recur and capable of evading review.] In City of New York v. Maul, 14 N.Y.3d 499, 903 N.Y.S.2d 304, 929 N.E.2d 366 (2010), the Court of Appeals pointed out that Courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” (citing Hearst Corp. v. Clyne, 50 N.Y.2d 707, 431 N.Y.S.2d 400, 409 N.E.2d 876 (1980)). Typically, an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. Nevertheless, it has consistently applied an exception to the mootness doctrine, permitting judicial review, where the issues are substantial or novel, likely to recur and capable of evading review.
18 [exception to mootness doctrine applicable where expired visitation order had immediate, practical consequences for the parties,] In Terwilliger v. Jubie, 84 A.D.3d 1520, 924 N.Y.S.2d 180 (3d Dep't 2011), Petitioner was the paternal grandmother and respondent was the mother of the child (born in 2004). After the child's father died, the grandmother applied for visitation pursuant to DRL §72(1), and Family Court granted her therapeutic, supervised visitation once a month. She sought to modify that order after the counselor who oversaw the visitation, opined that therapeutic visitation was no longer needed. Family Court conducted a hearing, following which it directed unsupervised visitation and increased the amount of visitation to four hours a week. The Appellate Division affirmed. It rejected the contention of the attorney for the child that the appeal was moot due to the issuance of a subsequent consent order that temporarily reimposed supervised visitation with the goal of facilitating implementation of the order on appeal. The consent order had since expired by its own terms. Thus, resolution of this appeal would have “immediate, practical consequences for the parties,” and the matter was not moot (Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 812, 766 N.Y.S.2d 654, 798 N.E.2d 1047 (2003), accord In re Kirk V., 5 N.Y.3d 840, 842, 806 N.Y.S.2d 144, 840 N.E.2d 113 (2005)). In Perry v. Surplus, 112 A.D.3d 1077, 976 N.Y.S.2d 707 (3d Dep't 2013) mother aggrieved given her contentions on appeal that court should have awarded her custody, if successful, would “directly affect” her rights, notwithstanding that the custody award as to the father was no longer in effect. In Van Dyke v. Cole, 121 A.D.3d 1584, 994 N.Y.S.2d 219 (4th Dep't 2014)appeal not moot where finding extraordinary circumstances in custody order may have enduring consequences In Veronica P. v. Radcliff A., 24 N.Y.3d 668, 3 N.Y.S.3d 288, 26 N.E.3d 1143 (2015) appeal not moot where expired order of protection had other potential legal consequences that rendered it susceptible to appellate review.
19 Gonzalez v. Gonzalez, 57 A.D.3d 896, 870 N.Y.S.2d 410 (2d Dep't 2008)[appeal academic, but vacatur of an order on appeal appropriate where necessary to prevent judgment which is unreviewable for mootness from spawning legal consequences or precedent].
22 Hines v. Hines, 125 A.D.2d 946, 510 N.Y.S.2d 344 (4th Dep't 1986); Hopkins v. Hopkins, 97 A.D.2d 457, 467 N.Y.S.2d 426 (2d Dep't 1983) (No appeal lies from an order based upon a stipulation as the appellant is not aggrieved).
23 Miller v. Miller, 98 A.D.2d 987, 470 N.Y.S.2d 228 (4th Dep't 1983); Stockfield v. Stockfield, 131 A.D.2d 834, 517 N.Y.S.2d 195 (2d Dep't 1987) (no appeal lies from a judgment of divorce entered upon a stipulation).