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V. Appealability and Reviewability

V. APPEALABILITY AND REVIEWABILITY
 
A. Definitions
 
The concepts of appealability and reviewability are constitutional limitations on
the Court's power to hear cases. More precisely, appealability rules act to limit
the kinds of cases that may be heard by the Court of Appeals. Reviewability
rules, on the other hand, limit the issues that the Court may determine once the
case is before the Court. Article VI, § 3(b) of the State Constitution prescribes
what kinds of orders are appealable to the Court, and article VI, § 3(a) states that
in most cases "the jurisdiction of the Court of Appeals shall be limited to the
review of questions of law."
 
B. Appealability
 
In addition to the jurisdictional requirements discussed above for appeals as of
right and motions for leave to appeal, certain other appealability requirements
must be met.
 
1. Appropriate Court
 
Action must originate in an appropriate court. For example, the Court
lacks jurisdiction to entertain a motion for leave to appeal from an order of
the Appellate Division where the appeal to that court was from a judgment
or order entered in an appeal from a third court (Matter of Thenebe v
Ansonia Assoc., 89 NY2d 858 [1996]). This jurisdictional problem will
arise when an action originates in a court other than Supreme Court,
County Court, Surrogate's Court, Family Court, Court of Claims or an
administrative agency or an arbitration. The motion will be dismissed
regardless of whether the Appellate Division order is final.
The Court does not have jurisdiction to entertain a motion for leave to
appeal from a determination of a court other than the Appellate Division,
except in the circumstances specified in CPLR 5602(a)(1)(ii). Regarding
appeals as of right, see CPLR 5601.
 
2. Aggrievement
 
a. CPLR 5511 states that only an aggrieved party may appeal (see
Hecht v City of New York, 60 NY2d 57, 61 [1983]). A party may
appeal if the order appealed from does not grant complete relief to
it. A party which is granted complete relief but is dissatisfied with
the court's reasoning is not aggrieved within the meaning of CPLR
5511 (see Matter of Sun Co. v City of Syracuse Indus. Dev.
Agency, 86 NY2d 776 [1995]; Parochial Bus Sys. v Board of Educ.,
60 NY2d 539, 545 [1983]).
 
b. No appeal lies from an Appellate Division order dismissing an
appeal from a determination entered upon a default judgment
(CPLR 5511; Matter of Lizette Patricia C., 98 NY2d 688 [2002]).
c. Where the Appellate Division reverses a trial court's judgment and
orders a new trial limited to the issue of damages unless plaintiff
stipulates to a reduction of damages, and plaintiff so stipulates, the
court had held that plaintiff is not aggrieved by the Appellate
Division order (see Whitfield v City of New York, 90 NY2d 777, 780
n * [1997]; see also Smith v Hooker Chem. & Plastics Corp., cross
mot for lv dismissed 69 NY2d 1029 [1987]). However, in Adams v
Genie Indus. (14 NY3d 535 [2010]), the court "conclude[d] that...[i]t
is unfair to bar a party from raising legitimate appellate issues [as to
liability] simply because that party has made an unrelated
agreement on the amount of damages" (id. at 541). The court
rejected the aggrievement rule in Whitfield and Batavia Turf Farms
v County of Genesee (lv dismissed 91 NY2d 906 [1998]) "to the
extent that they go beyond the original Dudley v Perkins (235 NY
448, 457 [1923]) holding" (14 NY3d at 536, 542).
 
3. Finality -- covered in detail in Section VI of this outline.
 
4. Miscellaneous Appealability Problems
 
a. Dual Review -- Where the same party both appeals to the Appellate
Division and appeals to the Court of Appeals, the appeal to the
Court will be conditionally dismissed. Where the same party both
appeals to the Appellate Division and moves for leave to appeal to
the Court of Appeals, the motion will be dismissed outright. Dual
review is generally not permitted (Parker v Rogerson, 35 NY2d 751,
753 [1974]; see also CBS Inc. v Ziff Davis Pub., lv dismissed 73
NY2d 807 [1988]). However, where different parties pursue
different avenues of appeal or motion before the Court, they will be
permitted to continue (Harry R. Defler Corp. v Kleeman, 18 NY2d
797 [1966]).
 
b. Appealable paper -- An appeal will be dismissed where the
improper paper is sought to be appealed.
 
i. No order or judgment -- Where appellant/movant seeks to
appeal from something other than an order or judgment, the
appeal/motion will be dismissed (Matter of Sims v Coughlin,
appeal dismissed 86 NY2d 776 [1995] [decision]; Matter of
Abdurrahman v Berry, lv dismissed 73 NY2d 806 [1998]
[letter]).
 
ii. Subsequent Supreme Court order or judgment -- CPLR 5611
reads in part "[I]f the Appellate Division disposes of all the
issues in the action its order shall be considered a final one,
and a subsequent appeal may be taken only from that order
and not from any judgment or order entered pursuant to it"
(see American Acquisition Co. v Kodak Elec. Printing Sys.,
87 NY2d 1049 [1996]).
 
iii. Order of individual Appellate Division Justice -- No appeal
lies from an order of an individual Justice of the Appellate
Division (People ex rel. Mahler v Jablonsky, appeal
dismissed 82 NY2d 919 [1994]).
 
iv. The finality of an Appellate Division order dismissing an
appeal to that court is determined by an examination of the
finality of the underlying order (Langeloth Found. v
Dickerson Pond Assocs., lv dismissed 74 NY2d 841 [1989]).
 
v. No civil motion for leave to appeal or appeal as of right lies
directly from the order of the Appellate Term of Supreme
Court (Williamson v Housing Preservation and Dev. of City
of New York, lv dismissed 82 NY2d 919 [1994]).
 
c. Dismissal of Prior Appeal for Failure To Prosecute
 
A prior dismissal of an appeal for failure to prosecute is a
determination on the merits and acts as a bar to a subsequent
appeal raising the issues that could have been raised on the prior
appeal (see Bray v Cox, 38 NY2d 350 [1976]). Thus, the
subsequent motion/appeal may be dismissed (see id.; compare
Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999];
Faricelli v TSS Seedman's, 94 NY2d 772 [1999] [Appellate Division
has discretion to entertain appeal notwithstanding dismissal of prior
appeal for failure to prosecute]).
 
d. Criminal Appeals
 
Appeals in criminal cases must be taken pursuant to the Criminal
Procedure Law, not CPLR 5601 or 5602 (Matter of Newsday, Inc.,
3 NY3d 651 [2004] [newspaper’s motion to intervene and obtain
access to record in criminal case]; People v Blake, appeal
dismissed 73 NY2d 985 [1989] [CPL 450.15, 460.15 application];
People v Dare, appeal dismissed 74 NY2d 707 [1989] [application
for writ of error coram nobis]).
 
e. Corporation Appearance
 
CPLR 321(a) dictates that a motion or appeal by a corporate party
must be filed by an attorney.
 
f. Mootness
Where the issues presented are no longer determinative of a live
controversy, the Court will not entertain an appeal or motion for
leave to appeal. The Court cannot entertain the motion or appeal
because it cannot give advisory opinions (see Matter of Hearst
Corp. v Clyne, 50 NY2d 707, 713-714 [1980]). However, the Court
may entertain an appeal or motion when each of the three prongs
of the mootness exception is satisfied: "(1) a likelihood of repetition
. . .; (2) a phenomenon typically evading review; and (3) a showing
of significant or important questions not previously passed on, i.e.
substantial and novel issues" (id. at 714-715).
 
C. Reviewability
 
Once it is determined that an order is appealable, a litigant must consider which
issues and orders that arose in the litigation are reviewable by the Court of
Appeals.
 
1. Preservation -- Issues Reviewable
 
a. The Court of Appeals' power to review lower court rulings made on
motions, applications and points of evidence is, in part, limited by
statutes and case law requiring that appropriate objections be
registered below as a prerequisite to appellate review (see CPLR
4017, 4110-b and 5501[a][3] and [4]). The Court will determine
whether an issue has properly been preserved below, whether or
not the parties raise the question of preservation (see Halloran v
Virginia Chems., 41 NY2d 386, 393 [1977]). Counsel bears the
responsibility of showing the Court where each issue raised has
been preserved in the record.
 
b. Differences in Appellate Division and Court of Appeals review
The Appellate Division may reach questions of trial error, even if
unpreserved, in an exercise of its "interest of justice" jurisdiction
(see Martin v City of Cohoes, 37 NY2d 162 [1975], rearg denied 37
NY2d 817, on remand 50 AD2d 1035, appeal dismissed 39 NY2d
740, lv denied 39 NY2d 910). The Court of Appeals, on the other
hand, generally may only review questions of law and, therefore,
may not review unpreserved error even if the Appellate Division has
chosen to do so (see Brown v City of New York, 60 NY2d 893, 894
[1983]).
 
c. Preservation of legal issues and theories
 
i. As a general matter, appellate courts are reluctant to review
legal arguments raised for the first time on appeal. Several
policy reasons underlie this rule, such as avoiding unfairness
to the other party, giving deference to the lower courts and
encouraging the proper administration of justice by
demanding an end to litigation and requiring the parties and
trial courts to focus the issues before they reach the Court of
Appeals (Bingham v New York City Trans. Auth., 99 NY2d
355, 359 [2003]).
Under appropriate circumstances, however, the Court of
Appeals may entertain new legal arguments and theories
raised on appeal. Those very limited circumstances include:
(1) new arguments based on a change in statutory law while
the appeal is pending (see Post v 120 East End Ave. Corp.,
62 NY2d 19, 28-29 [1984]); (2) where the new argument
could not have been obviated or cured by factual showings
or legal countersteps had the arguments been tendered
below (People ex rel. Roides v Smith, 67 NY2d 899, 901
[2001]); (3) questions of pure statutory interpretation (Matter
of Richardson v Fiedler Roofing, 67 NY2d 246, 250 [1986]).
These "exceptions" are narrowly construed.
 
ii. The general rule requires that constitutional questions be
raised at the first available opportunity as a prerequisite to
review in the Court of Appeals (see e.g. Matter of Barbara
C., 64 NY2d 866, 868 [1986]). There is some indication that
the Court may make an exception to this doctrine and
examine a constitutional issue raised for the first time in the
Court of Appeals if the issue implicates grave public policy
concerns (see Park of Edgewater v Joy, 50 NY2d 946, 949
[1980] citing Massachusetts Natl. Bank v Shinn, 163 NY 360,
363 [1900]).
 
d. Preservation in the administrative agency context
 
The Court's reluctance to review new legal arguments is equally
applicable in the administrative agency context for policy reasons
similar to those discussed above. Thus, arguments which were not
raised by a party at the administrative level are considered
unpreserved and not reviewable by the Court of Appeals, subject to
very limited exceptions (see Matter of Peckham v Calogero, 12
NY3d 424, 430 [2009]; Matter of Crowley v O'Keefe, mot to dismiss
appeal granted 74 NY2d 780 [1989]; Matter of Samuels v Kelly, lv
denied 73 NY2d 707 [1989]).
 
2. CPLR 5501(a) -- Review of Prior Nonfinal Orders and Determinations
 
a. CPLR 5501(a) provides that an appeal from a final judgment brings
up for review, among other things:
 
i. any nonfinal judgment or order which necessarily affects the
final judgment, including any which was adverse to the
respondent on appeal from the final judgment and which, if
reversed, would entitle the respondent to prevail in whole or
in part on that appeal (CPLR 5501[a][1]);
 
ii. any order denying a new trial or hearing which was not
previously reviewed by the court to which the appeal was
taken (CPLR 5501[a][2]); and
 
iii. any ruling to which the appellant objected or had no
opportunity to object or which was a refusal or failure to act
as requested by the appellant, any charge to the jury, or
failure to charge as requested by the appellant, to which the
appellant objected (CPLR 5501[a][3]).
 
b. Note that CPLR 5501(a)(1), which applies to prior nonfinal orders
and judgments, contains the “necessarily affects” requirement.
CPLR 5501(a)(3), which applies to trial rulings, however, does not.
 
c. For an in-depth discussion of the “necessarily affects” requirement,
see Section VII of this outline.
 
3. Scope of Review
 
Once it is determined which orders, determinations, and issues are
reviewable, the scope of the Court’s review must be considered.
 
a. Limited to questions of law
 
As noted earlier, the State Constitution limits the Court's review
powers to questions of law. Questions of fact are not reviewable
except in:
i. death penalty cases (CPL 470.30[1]);
 
ii. Commission on Judicial Conduct matters (see e.g. Matter of
Edwards, 67 NY2d 153 [1986]);
 
iii. cases where the Appellate Division reverses or modifies and
finds new facts, in which case the Court’s review power is
limited as discussed further below (CPLR 5501[b]); and
iv. defamation cases involving a public figure defendant --
where the issue concerns whether plaintiff has proven the
essential element of actual malice, the Court has a
constitutional duty to review the evidence and to "exercise
independent judgment to determine whether the record
establishes actual malice with convincing clarity" (Prozeralik
v Capital Cities Communications, 82 NY2d 466, 474-475
[1993], quoting Harte-Hanks Communications v
Connaughton, 491 US 657, 659 [1989]).
 
b. Questions that are never reviewable
 
i. An Appellate Division determination whether the trial judge
correctly decided a CPLR 4404(a) motion to set aside the
verdict as "contrary to the weight of the evidence" is not
reviewable (Levo v Greenwald, 66 NY2d 962 [1962]; Gutin v
Frank Mascali & Sons, Inc., 11 NY2d 97, 98-99 [1962]).
However, where a jury verdict has been set aside on the
ground that, as a matter of law, the verdict is not supported
by sufficient evidence, that determination is reviewable. The
relevant inquiry is whether there is any "valid line of
reasoning and permissible inferences which could possibly
lead rational [people] to the conclusion reached by the jury
on the basis of the evidence presented at trial" (Cohen v
Hallmark Cards, 45 NY2d 493, 499 [1978]). Where it is not
clear from the Appellate Division writing whether the
Appellate Division has set aside a verdict on sufficiency of
evidence or weight of evidence grounds in a jury tried case,
examine the court's corrective action. New trial ordered --
weight; dismissal of complaint -- sufficiency (see id. at 498).
The foregoing analysis cannot be used in bench trial cases
because the Appellate Division can render judgment for the
appealing party as a matter of fact without the need for a
new trial. When, in a jury case, the Appellate Division
reverses a judgment entered on a plaintiff's verdict, on both
sufficiency and weight of the evidence grounds, the Court
can review whether the legal sufficiency ruling was correct.
If the Court disagrees with the Appellate Division and
concludes that the verdict is supported by legally sufficient
evidence, the Court cannot reinstate the judgment entered
on the verdict; instead, it must order a new trial because it
cannot disturb the Appellate Division's weight of evidence
determination (Sage v Fairchild-Swearingen, 70 NY2d 579,
588 [1987]).
 
ii. A determination of excessiveness (or inadequacy) of the
jury's verdict (Rios v Smith, 95 NY2d 647, 654 [2001];
Woska v Murray, 57 NY2d 928 [1982]; Zipprich v Smith
Trucking Co., 2 NY2d 177, 188 [1956]).
 
iii. An Appellate Division determination to reverse a judgment in
a civil action on the basis of unpreserved legal error (Brown
v City of New York, 60 NY2d 893 [1983]). The Court of
Appeals has no power to review either the unpreserved error
or the Appellate Division’s exercise of discretion in reaching
the issue (see Elezaj v Carlin Constr. Co., 89 NY2d 992, 994
[1997]).
 
c. Limited Review
 
i. Findings of fact that are affirmed by the Appellate Division
are only reviewable to determine if there is evidence in the
record to support them (Cannon v Putnam, 76 NY2d 644,
651 [1990]; Morgan Servs. v Lavan Corp., 59 NY2d 796, 797
[1983]).
 
ii. In situations where the Appellate Division reverses or
modifies and expressly or impliedly finds new facts, the
Court of Appeals can determine which of the findings more
nearly comports with the weight of the evidence (CPLR
5501[b]; Matter of Y.K., 87 NY2d 430, 432 [1996]; Loughry v
Lincoln First Bank, N.A., 67 NY2d 369, 380 [1986]).
 
iii. Provided the lower courts had the power to exercise
discretion (Brady v Ottaway Newspapers, 63 NY2d 1031
[1984]), the Court of Appeals will not interfere with the
exercise of that discretion absent an abuse (Herrick v
Second Cuthouse, 64 NY2d 692 [1984]). However, an issue
of law will be presented where the Appellate Division in
exercising its discretion expressly fails to take into account
all the various factors that are properly entitled to
consideration (Varkonyi v Varig, 22 NY2d 333, 337 [1968]).
In such cases, the Court can set out the proper factors and,
if judgment cannot be rendered as a matter of law, remit the
case to the Appellate Division to exercise its own discretion
on the basis of all the relevant factors (id. at 338).


 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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