In Wilson v Dantas (No. 62), previewed here, the Court of Appeals affirmed an order of the Appellate Division, First Department, holding that it had long-arm jurisdiction over the defendants in a breach of contract and fiduciary duty action, because the appellant expressly abandoned his challenge to the personal jurisdiction ruling on appeal.
Interestingly, however, Judge Rowan Wilson dissented, and argued that the Court should have dismissed the appeal for lack of appellate jurisdiction because the two personal jurisdiction issues on which leave to appeal had been granted were rendered academic by an amendment to the complaint. The issues decided by the majority, Judge Wilson noted, were never argued in seeking leave to appeal, and the Court’s precedent typically binds the party seeking leave to appeal to those questions that were the basis of the leave grant. Judge Wilson did not take kindly to the defendants’ “switcheroo.”
Judge Wilson explained that holding the parties to the issues that the Court, or here the Appellate Division, decided were leaveworthy is fundamentally fair as those were the issues the parties had notice would be argued on appeal. Permitting what defendants did here, in contrast, potentially denied the plaintiff the opportunity to cross-move for leave to appeal seeking review of additional issues. That is not how the Court’s review should work, Judge Wilson noted.
Judge Wilson also notes that if a similar situation occurred in an appeal before the United States Supreme Court, that Court has jurisdiction to dismiss the appeal as improvidently granted. Although he recognized that the Court of Appeals does not have that same jurisdiction, he argues that it should, and would have dismissed this appeal if it did.
I can’t say that I disagree with Judge Wilson’s stance. Where a change in circumstances has left the questions upon which the parties obtained leave to appeal either academic, unreviewable, or no longer leaveworthy, the Court of Appeals should have jurisdiction simply to dismiss the appeal as improvidently granted. As Judge Wilson pointed out, such a result is not only fair, but it would allow the Court more control over its own docket and avoid decisions like this one, where the majority writes a memorandum decision with no analysis of the legal issues it decided at all.
The Court of Appeals’ opinion can be found here.
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