How to Take an Appeal as of Right to the Court of Appeals: The 2017-2018 Normal Course Appeals as of Right

It’s not often that you find a case that has the direct right to go to the Court of Appeals. Unlike the Appellate Division to which almost everyone has the right to appeal without permission, the Court of Appeals is a court of extremely limited jurisdiction. Precious few instances exist that give a party the right to go directly to the Court of Appeals without first seeking leave to appeal, either from the Appellate Division or the Court itself.  But, each term, a few cases find the rare jurisdictional hook to take an appeal as of right to the Court of Appeals.  Here’s how they do it.

Combing through the Court of Appeals’ new filings list shows that many, many appeals as of right are taken to the Court, but most are dismissed on the Court’s own motion. That is, once a notice of appeal is filed with the County Clerk where there case originated and a preliminary appeal statement is filed with the Court of Appeals, the Court Clerk’s office begins a jurisdictional inquiry to determine if the Court has jurisdiction to hear the appeal.

The first thing the Clerk’s Office looks for is whether the appeal was timely taken. Was the notice of appeal served within 30 days of service of the Appellate Division order with notice of its entry? (Ok, ok, so it’s really between 30 to 35 days depending on how the order was served). The notice of appeal was timely?  Great, let’s move on to the next step.

Second, the Clerk’s Office has to decide whether the Appellate Division order from which the appeal is taken finally determines the entire proceeding. Unless the case is truly over—meaning that there is no claim, counterclaim, cross claim, or anything else other than ministerial entry of judgment left for the courts below to do—the Court can’t hear the case. Say, for example, the plaintiff won on summary judgment at the Appellate Division, but no final award of damages has been entered.  That’s nonfinal, and the Court of Appeals can’t hear an appeal from a nonfinal order.  But, assume your case passes that hurdle to, and the Appellate Division order finally resolves the entire case.

Third, the Clerk’s Office dives into the Court’s jurisdiction. CPLR 5601 provides two main jurisdictional grounds for an appeal as of right to the Court of Appeals: (1) a double dissent at the Appellate Division on a question of law, and (2) the Appellate Division order decided a substantial constitutional question that was directly involved.

Often when the Clerk’s office gets this far, it will send out a letter inquiry to the parties, inviting them to explain the jurisdictional basis for the appeal as of right. This gives the parties a chance to weigh in and argue why the Court has jurisdiction to keep the appeal, rather than dismiss it for lack of jurisdiction. But, believe me, the response to the Court is not an easy one to write.  The Court’s jurisdiction is complex, and you need to know what resources can help you get the right answer. That’s when you turn to the person who knew the Court’s jurisdiction most intimately, Arthur Karger, and his treatise, The Powers of the New York Court of Appeals.

Let’s start with the double dissent at the Appellate Division under CPLR 5601(a). There are two requirements: (1) the double dissent has to be on a question of law, and (2) it has to be in the appellant’s favor. The second requirement usually isn’t that hard to satisfy. Dissenting justices usually would find in favor of the losing side who want to appeal. But, the first requirement is, at times, more elusive. For example, say you have two dissenters at the Appellate Division who disagree with how the majority weighed the evidence after trial. You have two dissenters, but no question of law because the weight of the evidence is an issue of discretion, not law. Same for if the dissent is based on an unpreserved issue. While the Appellate Division has interests of justice jurisdiction, the Court of Appeals does not. And if the majority and dissent agree on the applicable legal standard, but differ on the facts, that’s not a question of law either. So while many attorneys may jump at the sight of a dual dissent at the Appellate Division, it’s always important to take a closer look to make sure that its on a question of law before filing a notice of appeal as of right.

Next, if the Appellate Division order decides a directly involved, substantial constitutional question, CPLR 5601(b)(1) will also provide a jurisdictional basis to appeal as of right to the Court of Appeals. Although the requirements are easy to state (the constitutional question must be (1) directly involved and (2) substantial) , their application is much more difficult. For a constitutional question to be directly involved, it first must have been preserved both at the trial court and at the Appellate Division. A constitutional issue raised only at the Appellate Division, and reached as a matter of the Appellate Division’s interests of justice jurisdiction, is not enough. The constitutional question must also have been necessarily decided by the Appellate Division .  So, if the Appellate Division decided the case on a number of independent grounds, including nonconstitutional ones, the constitutional question is not directly involved for purposes of an appeal as of right.

Finally, what does it mean that the constitutional question is substantial?  Well, that’s a case-by-case decision by the Court. The question doesn’t need to be a winner, but it also can’t already have been decided against the appellant’s position. Otherwise, the Court generally looks at a number of things to determine substantiality, including “the nature of the constitutional interest at stake, the novelty of the constitutional claim, whether the argument raised may have merit, and whether a basis has been established for distinguishing a state constitutional claim (if asserted) from a federal constitutional claim” (The New York Court of Appeals Civil Jurisdiction and Practice Outline, at 4). Sounds easy, right? I didn’t think so.

Those are the two main bases for filing an appeal as of right to the Court of Appeals.  Others do exist, but are much too complicated for a quick discussion here. Now let’s take a look at the appeals as of right taken to the Court of Appeals during the 2017-2018 term that will be heard after full briefing an oral argument.

Normal Course Appeals as of Right

Matter of James Q.154 AD3d 58 (3d Dept 2017)

Question presented: Whether the Appellate Division erred in determining that the confidentiality provisions of the Mental Hygiene Law do not require the sealing of documents filed in a CPL 330.20 (9) civil commitment retention program, but that redaction of the records is required.

Supreme Court, Franklin County denied respondent James Q.’s motion to seal the record of the civil commitment retention proceeding.  The Appellate Division, Third Department modified by requiring the records to be redacted, but affirmed the Supreme Court order insofar as it denied the sealing request, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law

Matter of Save America’s Clocks, Inc. v City of New York157 AD3d 133 (1st Dept 2017)

Question presented: Whether the determination of New York City Landmarks Preservation Committee approving a Certificate of Appropriateness allowing owner of property to convert a landmark-designated clock tower into a private residence, and to convert the clock from a mechanical to an electrical system of operation, was arbitrary and capricious, and whether New York City’s Landmarks Preservation and Historic Districts Law (Administrative Code of City of NY § 25-301 et seq.) permits the LPC to require the property owner to allow continuing public access to interior landmark and if that constitutes an unconstitutional taking.

Supreme Court, New York County, granted the CPLR article 78 petition to annul the Certificate of Appropriateness issued by the LPC, which had authorized work on certain features of the designated interior landmark. The Appellate Division, First Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law

Matter of Mental Hygiene Legal Serv. v Daniels158 AD3d 82 (1st Dept 2017)

Question presented: Whether petitioner Mental Hygiene Legal Services has standing to bring article 78 proceeding seeking a writ of mandamus to compel respondent, acting director of Bronx Psychiatric Center, to provide copies of a patient’s complete clinical record in advance of a retention hearing pursuant to Mental Hygiene Law § 9.31(a), and whether the agency, in failing to provide Mental Hygiene Legal Service with a copy of the patient’s complete clinical record, violated its statutory obligation under Mental Hygiene Law § 9.31(b).

Supreme Court, Bronx County, denied the agency’s cross motion to dismiss the proceeding, and granted the petition to the extent of declaring that the agency’s failure to provide Mental Hygiene Legal Services with a complete copy of the patient’s so-called medical chart in any proceeding pursuant to Mental Hygiene Law § 9.31(a) violates its statutory obligations, and ordered the agency, in any action brought pursuant to Mental Hygiene Law § 9.31(a), to provide Mental Hygiene Legal Services with a complete copy of such medical chart prior to any hearing. The Appellate Division, First Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law

Williams v Beemiller, Inc.159 AD3d 148 (4th Dept 2018)

Question presented: Whether the exercise of personal jurisdiction over the defendant, an out-of-state dealer of firearms who sold a gun in Ohio that was transported to New York and used in a shooting that injured the plaintiff, under New York’s long-arm statute (see CPLR 302[a][3]) comports with federal due process, and whether jurisdiction over the defendant can be obtained under an agency or alter ego theory.

Supreme Court, Erie County, denied the motion of defendant Brown, the out-of-state firearms dealer, for summary judgment dismissing the first amended complaint against him. The Appellate Division, Fourth Department reversed, granted the motion, and dismissed the first amended complaint against Brown.

Jurisdictional predicate: Substantial constitutional question directly involved.

Vanyo v Buffalo Police Benevolent Assn., Inc., 159 AD3d 1448 (4th Dept 2018)

Question presented: In an action by a former police officer alleging improper termination following an arbitration that was conducted pursuant to collective bargaining agreement, whether Supreme Court properly dismissed the first and second causes of action alleged in the amended complaint as time-barred, whether relation-back doctrine of CPL 203(f) applies to the first and second causes of action, whether Supreme Court exceeded its authority in sua sponte dismissing original complaint with prejudice pursuant to CPLR 306-b, and whether defendants waived any objection based upon lack of service of the original complaint.

Supreme Court, Erie County, granted the motions of defendants to dismiss the complaint and amended complaint against them. The Appellate Division, Fourth Department affirmed, with two Justices dissenting in part.

Jurisdictional predicate: Dual dissent on a question of law.

Matter of Kosmider v Whitney160 AD3d 1151 (3d Dept 2018)

Question presented: Whether electronic images of ballots cast in an election are accessible under the Freedom of Information Law (Public Officers Law art 6 [FOIL]), or whether they are exempt from disclosure.

Supreme Court, Erie County, among other things, granted the petitioner’s CPLR article 78 application to annul a determination of respondent Chairperson of the Essex County Board of Supervisors denying petitioner’s FOIL request for the electronic images of ballots. The Appellate Division, Fourth Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law.

Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency161 AD3d 169 (3d Dept 2018)

Question presented: In a CPLR article 78 proceeding challenging the Department of Environmental Conservation’s approval of Essex Chain Lakes Complex Unit Management Plan, whether certain causes of action were ripe for judicial review, whether a rational basis exists for the determination of the DEC that the Wild, Scenic and Recreational Rivers System Act permits establishment of snowmobile trail on a road that is located in a wild river area, and whether Supreme Court properly dismissed the fourth cause of action on the basis that respondents are not bound by guidance document for the siting, construction, and maintenance of snowmobile trails that was adopted by the DEC in 2009.

Supreme Court, Albany County, dismissed the petitioners’ application, in a CPLR article 78 proceeding, to review a determination of the approving a plan permitting the construction of a new snowmobile corridor. The Appellate Division, Third Department affirmed, with two Justices dissenting.

Jurisdictional predicate: Dual dissent on a question of law.

Those are the appeals as of right taken to the Court of Appeals that will be heard next term in the normal course, with full briefing and argument. Next up in my summer series: the appeals as of right that the Court has decided to hear and decide on the sua sponte merits track. Stay tuned!

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