How to Get to the Court of Appeals: Appellate Division Conflicts and Novel Issues

Few cases ever make it to the Court of Appeals.  The Court’s jurisdiction allows precious few grounds for direct appeals, namely, where a substantial constitutional question is directly involved and where there is a double dissent at the Appellate Division on a dispositive question of law.  All other cases get to the Court by seeking leave to appeal, either at the Appellate Division or from the Court of Appeals.

The Court doesn’t just take any case, however. In fact, the Court typically grants leave in only 5 to 6 percent of cases, and last year it was less than 2 percent. So, it has to be the right case.  

What does the Court look for? The Court’s certiorari factors are a good place to start.  Under 22 NYCRR § 500.22, the Court requires the parties to explain in their motions for leave to appeal how the questions presented “are novel or of public importance, present a conflict with prior decisions of this Court, or involve a conflict among the departments of the Appellate Division.”  The Court also looks for vehicle problems: are the issues preserved and reviewable; have the issues been sufficiently developed at the Appellate Division or could they use further percolation before Court of Appeals review; are the leaveworthy issues cluttered by other non-leaveworthy issues or insufficiently presented by the parties?  All of these things get considered when the Court is deciding whether to hear a case.

Here are some cases or issues that, in my view, could soon find their way to the Court.

Conflicts Among the Appellate Division Departments

  • What must be shown in opposition to summary judgment when the defendant establishes that one of the elements of the medical malpractice claim fails (compare Pullman v Silverman, 125 AD3d 562 [1st Dept 2015] [must show triable issues of fact on both departure from standard of care and proximate cause] with Stukas v Streiter, 83 AD3d 18 [2d Dept
    2011] [must raise triable issue only with respect to the issue disproven by defendant, not both])
  • Whether a CPLR 3217 notice of voluntary discontinuance can be served after the defendant has filed a motion to dismiss (compare BDO USA, LLP v Phoenix Four, Inc., 113 AD3d 507, 511 [1st Dept 2014] [holding notice of voluntary discontinuance untimely after motion to dismiss] with Harris v Ward Greenberg Heller & Reidy LLP, 2017 NY Slip Op 04970 [4th Dept June 16, 2017] [holding notice of voluntary discontinuance timely after motion to dismiss because such a motion is not a “responsive pleading”])
  • Whether 10 NYCRR part 1002’s use of funds rule, limiting the percentage of Medicaid funds that may be used by covered providers for administrative expenses and executive salaries, violates the separation of powers doctrine (compare Agencies for Children’s Therapy Servs., Inc. v New York State Dept. of Health, 136 AD3d 122 [2d Dept 2015] [holding it does not] with Matter of Leadingage N.Y., Inc. v Shah, 2017 NY Slip Op 05136 [3d Dept June 22, 2017] [holding restriction on executive compensation paid from any source, not just State funds, violates separation of powers])

Novel Issues of Statewide Importance

Want to take a case to the Court of Appeals and argue before the Court?  Just pick an issue off the list, and convince the Court that your case is the right one to help develop New York law.

This is just a short sample of issues that could soon find their way to the Court.  Know of others?  Let me know and I’ll turn this list into a running tallly.


The Appellate Division, Second Department granted leave to appeal to the Court of Appeals in Clement v Durban on May 9, 2017.  The Appellate Division, First Department also granted leave in Scavetta v Weschler on May 23, 2017.  So, the Court will be hearing both cases.

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