The Sua Sponte Merits Track: How the Court of Appeals Decides Appeals Without Oral Argument

Not every appeal that the Court of Appeals decides is rendered after full briefing and oral argument. While most are, there is another way. A quicker and cheaper way (for parties who care about those kinds of things).

After an appeal is filed with the Court of Appeals, whether taken as of right or after a grant of leave, the Clerk’s Office examines the preliminary appeal statement to decide if the case is a candidate for review on the sua sponte merits (SSM) track pursuant to section 500.11 of the Court’s rules. Here’s what the Clerk’s Office looks for:

Is there some limiting factor that would constrain the Court’s review? For example, the Court is bound to accept affirmed findings of fact, and thus has a limited review role in those kinds of cases. Has the issue in a case that was granted been recently decided by the Court, so there wouldn’t be much more to do than apply the new law? Do the parties want a more streamlined appeal process? These are all things the Clerk’s Office will ask (or a Judge or the parties could identify the cases as a good candidate for SSM review independently).

If a case is chosen for the SSM track, the parties still get to prepare letters briefs, albeit shorter ones (7,000 word limit). But there is no argument. Once the papers are filed, the cases gets submitted to the full Court and decided as soon as the Court reaches a majority.

As I noted quickly at the beginning, the SSM track can really save the parties and the Court lots of time and money during what could otherwise be a lengthy appeal process. So in that way, it’s an attractive option.

On the other hand, clients often like to see what they’re paying for: oral argument of their appeal. That, they may believe, is their day in court, and that may often be hard to give up.

Now that we’ve covered the process, here’s a look at the SSM track as of right appeals from the 2017-18 term.

The 2017-18 Term SSM Appeals as of Right

Keller-Goldman v Goldman, 149 AD3d 422 (1st Dept 2017)

Question presented: Whether the father’s credit against child support obligations, while he is paying for a particular child’s room and board at an educational institution, is subject to a cap.

Supreme Court, New York County, adhered to its earlier order (8/19/15) which granted plaintiff’s motion to the extent of interpreting the parties’ Stipulation of Settlement and Agreement as providing a cap on defendant’s credit against his child support obligations. The Appellate Division, First Department affirmed.

Brooks v April, 154 AD3d 564 (1st Dept 2017)

Question presented: Whether in a malpractice action, upon submission of affirmations of experts on defendants’ motion for summary judgment, defendants established their entitlement to judgment as a matter of law and plaintiffs failed to raise a triable issue of fact as to defendant physician’s alleged negligence in diagnosing plaintiff’s brain trauma.

Supreme Court, New York County, among other things, denied defendants’ motion for summary judgment dismissing the complaint in its entirety. The Appellate Division, First Department reversed and granted defendants’ motion for summary judgment.

Matter of Spence v New York State Department of Agriculture and Markets, 154 AD3d 1234 (3d Dept 2017)

Question presented: May employee policies regarding public employees’ outside activities forbid the employees from campaigning for and holding elected office?

Supreme Court, Albany County, in a combined CPLR article 78 proceeding and action for declaratory judgment challenging disapproval of dairy product specialists’ requests to campaign for and serve as county legislators, among other things, granted respondents’ motion for summary judgment dismissing the petition and complaint. The Appellate Division, Third Department modified by declaring that the outside activities policy of respondent Department of Agriculture and Markets has not been shown to be unconstitutional, and as so modified, affirmed.

Mid-Hudson Valley Federal Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218 (3d Dept 2017)

Question presented: What is the extent of particularization required in a complaint alleging legal malpractice, breach of contract and fraud, in the face of defendants’ CPLR 3211(a)(7) pre-answer motion to dismiss the complaint?

Supreme Court, Ulster County, granted defendants’ motion pursuant to CPLR 3025(a) and 3211(a) to dismiss the complaint to the extent of dismissing the breach of contract cause of action, but denied the motion with regard to the legal malpractice and fraud causes of action. The Appellate Division, Third Department modified by reversing so much of the order as denied defendant’s motion to dismiss the legal malpractice and fraud causes of action, granted the motion to that extent and dismissed those causes of action, and, as so modified, affirmed.

Matter of Wohlfeil v Sharel Ventures, LLC, 155 AD3d 1264 (3d Dept 2017)

Question presented: Whether substantial evidence supports the Workers’ Compensation Board’s determination that claimant sustained a permanent partial disability and a 75% loss of wage-earning capacity where medical testimony indicated that, as a result of her lumbar back injury, she is unable to perform even sedentary work as defined in the 2012 New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity.

The Appellate Division, Third Department reversed a 10/29/15 decision of the Workers’ Compensation Board which ruled that claimant sustained a permanent partial disablity and a 75% loss of wage-earning capacity, and remitted the matter to the Board for further proceedings not inconsistent with the decision.

Bradley v HWA 1290 III LLC, 157 AD3d 627 (1st Dept 2018)

Question presented: In a personal injury action where a mechanic was electrocuted while working in elevator machine room of building owned by defendants, whether plaintiffs raised issues of fact as to whether decedent died as a result of the defendants’ negligence.

Supreme Court, New York County, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the Labor Law § 200 and common law negligence claims. The Appellate Division, First Department reversed and granted defendants’ motion.

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