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."
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 ). 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.
a. CPLR 5511 states that only an aggrieved party may appeal (see Hecht v City of New York, 60 NY2d 57, 61 ). 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 ; Parochial Bus Sys. v Board of Educ., 60 NY2d 539, 545 ).
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 ). 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 * ; see also Smith v Hooker Chem. & Plastics Corp., cross mot for lv dismissed 69 NY2d 1029 ). However, in Adams v Genie Indus. (14 NY3d 535 ), 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 ) "to the extent that they go beyond the original Dudley v Perkins (235 NY 448, 457 ) 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 ; see also CBS Inc. v Ziff Davis Pub., lv dismissed 73 NY2d 807 ). 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 ).
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  [decision]; Matter of Abdurrahman v Berry, lv dismissed 73 NY2d 806  [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 ).
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 ).
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 ).
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 ).
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 ). Thus, the subsequent motion/appeal may be dismissed (see id.; compare Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 ; Faricelli v TSS Seedman's, 94 NY2d 772  [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  [newspaper’s motion to intervene and obtain access to record in criminal case]; People v Blake, appeal dismissed 73 NY2d 985  [CPL 450.15, 460.15 application]; People v Dare, appeal dismissed 74 NY2d 707  [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 ). 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).
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] and ). 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 ). 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 , 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 ).
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 ). 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 ); (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 ); (3) questions of pure statutory interpretation (Matter of Richardson v Fiedler Roofing, 67 NY2d 246, 250 ). 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 ). 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  citing Massachusetts Natl. Bank v Shinn, 163 NY 360, 363 ).
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 ; Matter of Crowley v O'Keefe, mot to dismiss appeal granted 74 NY2d 780 ; Matter of Samuels v Kelly, lv denied 73 NY2d 707 ).
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]);
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]); 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]).
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);
ii. Commission on Judicial Conduct matters (see e.g. Matter of Edwards, 67 NY2d 153 );
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 , quoting Harte-Hanks Communications v Connaughton, 491 US 657, 659 ).
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 ; Gutin v Frank Mascali & Sons, Inc., 11 NY2d 97, 98-99 ). 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 ). 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 ).
ii. A determination of excessiveness (or inadequacy) of the jury's verdict (Rios v Smith, 95 NY2d 647, 654 ; Woska v Murray, 57 NY2d 928 ; Zipprich v Smith Trucking Co., 2 NY2d 177, 188 ).
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 ). 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 ).
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 ; Morgan Servs. v Lavan Corp., 59 NY2d 796, 797 ).
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 ; Loughry v Lincoln First Bank, N.A., 67 NY2d 369, 380 ).
iii. Provided the lower courts had the power to exercise discretion (Brady v Ottaway Newspapers, 63 NY2d 1031 ), the Court of Appeals will not interfere with the exercise of that discretion absent an abuse (Herrick v Second Cuthouse, 64 NY2d 692 ). 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 ). 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).