The Fourth Department Reinstates Governor Cuomo’s COVID Restaurant Curfew, and Gives a Lesson on How to Vacate an Order Granted Without Notice Under CPLR 5704(a)

In Gallivan v Cuomo, the Fourth Department gave pandemic litigation watchers and appellate lawyers like me a little bit of everything. It was interesting when Supreme Court issued a temporary restraining order against enforcement of Governor Cuomo’s executive order requiring restaurants across the State to close at 10 PM to slow the spread of COVID-19. It was intriguing when the Fourth Department temporarily stayed that TRO last week. And it’s downright fascinating now that the Court has issued a 19-page decision vacating the TRO in its entirety.

First let’s set the stage. As the coronavirus pandemic reached New York in March 2020, the New York Legislature expanded the Governor’s powers to issue directives designed to slow the spread of the virus, and provided that the expanded powers would sunset on April 30, 2021. Using that expanded authority, in Executive Order 202.74 issued in November 2020, Governor Cuomo imposed a 10 PM curfew on restaurants because “patrons who stay out later than 10:00 PM tend to consume more alcohol and that, in turn, makes such patrons less likely to adhere to the stringent personal conduct (such as masking and social distancing) necessary to safely congregate with others.” (Decision, at 5).

The Challenge to the Restaurant Curfew, the TRO, and the Fourth Department’s Vacatur

A coalition of restaurant owners in Erie and Monroe Counties challenged the 10 PM curfew executive order, arguing that the Legislature’s expansion of the Governor’s emergency powers under Executive Law 29-a was an unconstitutional delegation of legislative authority, and that the 10 PM curfew itself was arbitrary, violated the statute, and violated the restauranteurs’ equal protection rights. They sought a temporary restraining order from Supreme Court by order to show cause, giving the State notice that they would be presenting the proposed order including the temporary relief and an opportunity to be present to oppose it. After hearing arguments from both sides, Supreme Court signed the order to show cause with the TRO and directed that it be served on the State.

The State then moved immediately in the Fourth Department under CPLR 5704 (a) to vacate the TRO, and sought a temporary stay while its motion was being decided. The Fourth Department granted the temporary stay, and after full briefing of the State’s motion, vacated the TRO. The Court held that the plaintiffs were not likely to succeed on their claims, and thus could not satisfy their burden for a TRO. In particular, the Court held that the powers temporarily granted to the Governor to address the pandemic were not an unconstitutional delegation of legislative authority because it provided sufficient limits on the emergency powers. The executive orders must be necessarily designed to cope with the pandemic and reasonably necessary to enforce the directives. They are limited to 30-day durations, and are subject to a “unique legislative-veto procedure” where the Legislature can immediately terminate any executive order by issuing a concurrent resolution (Decision, at 14). And most importantly, the Court noted, the expanded emergency powers will sunset on April 30, 2021 absent further legislative action. As the Court put it,

There might come a day when, for reasons of short-term political expediency, the Legislature effectively amends the Constitutional tripartite plan by enacting a statute that comprehensively and permanently cedes its core lawmaking powers to the executive branch. In that event, of course, the judiciary would be duty-bound to intervene and restore the constitutional order. But this, most assuredly, is not that day, and the March 2020 amendment to Executive Law § 29-a is, just as assuredly, not that statute.

(Decision, at 15-16)

The remainder of the plaintiffs’ claims were moot, the Court held, because Executive Order 202.94, issued after the TRO was granted, changed the curfew to 11 PM. Because the plaintiffs’ claims were based solely on the 10 PM curfew, the Court held that, although the claims could be amended at Supreme Court to challenge the new restrictions, the current versions of the claims no longer presented a live controversy to decide. And so, the TRO was vacated, and the 11 PM curfew remains in effect.

A TRO is an Order Granted Without Notice Under CPLR 5704 (a)

Beyond the Court’s decision on the merits of the plaintiffs’ claims, the case is noteworthy for two other reasons. First, written motion decisions at the Appellate Division that include the Court’s reasoning are rare. Usually, the courts issue one or two line motion decisions only stating what relief is being granted or denied, without any reasoning for the decision at all. Second, this 19-page decision from the Fourth Department is very helpful to understand what is permitted under CPLR 5704 (a), a little understood area of appellate practice in New York.

CPLR 5704 (a) provides an avenue for quick relief at the Appellate Division when a TRO or other order is entered without notice against your client at Supreme Court. It provides, “[t]he appellate division or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or a judge thereof from which an appeal would lie to such appellate division.” What’s most often misunderstood, however, is what exactly is an “order granted without notice.” A temporary restraining order is rarely entered without notice to the other side and the parties all arguing before the Supreme Court. How is that not sufficient notice? In Gallivan, the Fourth Department (technically, a single Justice of the Fourth Department) explained.

When the State moved at the Appellate Division to vacate the TRO against enforcement of the curfew, the Plaintiffs argued that CPLR 5704 (a) didn’t apply because the State was given notice of the order to show cause seeking the TRO before the Judge signed it, and appeared to argue in opposition. But that’s a mistaken view of what “without notice” under CPLR 5704 actually references, Justice NeMoyer held. “Notice” is a technical legal term under the CPLR, and relates to how motions are made under CPLR article 22. Justice NeMoyer explained, the condition precedent to a CPLR 5704 (a) motion—an “order granted without notice”—only exists when a “written judicial determination” is issued “‘not predicated upon a motion made on notice'” (Decision, at 8, quoting Matter of Gliklad v Deripaska, 185 AD3d 512, 512 [1st Dept 2020]).

When an order to show cause is presented to bring on a motion, the motion isn’t actually made “on notice” until the order is signed and the signed order is served with the listed supporting papers on the other side. And when that order to show cause contains a TRO, it is necessarily granted “without notice” within the meaning of CPLR 5704 (a) because there was no motion on notice made before the order to show cause was signed. So, even if you’re given notice of a temporary restraining order application, as required under section 202.7(f) of the Uniform Trial Court Rules, and show up to argue that the Judge should strike out the TRO from the order to show cause before signing it, the entry of the TRO is still technically “without notice” and you can run immediately to the Appellate Division to have the TRO vacated under CPLR 5704 (a). Can’t say I haven’t had to do that once or twice.

Justice NeMoyer’s decision in Gallivan is a prime example for why more New York appellate courts should use their motion orders to explain interesting and complex jurisdictional and other issues that arise largely only in the context of appellate motions. The explanations could be short and to the point, but New York appellate practice would be better for it.

Court of Appeals Amends Rules to Expand Digital Submissions

Whether it’s in response to the COVID-19 court closures, or it was just time to bring the Court more into the digital age, the Court of Appeals announced yesterday that it is amending its rules, effective May 27, 2020, to require parties to file digital copies of all civil motions and opposing papers to those motions, and jurisdictional inquiry responses, with the Court. Before this amendment, the Court’s rules had limited digital filings to the briefs and records filed on appeals.

COA Amended Rules Notice

As the Court’s notice to the bar explains, the digital filing does not actually constitute service or filing of the motion. That’s still governed by the CPLR and when the paper copy of the motion papers hits the counter in the Clerk’s Office and is stamped received. But the rule amendments provide that the parties have 7 days after the return date of the motion to upload their digital copies of the motion papers (but of course, you should do it as soon as possible after service—don’t wait if you don’t have to).

What’s most notable about this rule change to me is that the Court is significantly reducing the amount of printed paper copies of the motion papers that have to be filed (from 6 copies to 1), and eliminating entirely the requirement to file paper copies of the Appellate Division briefs and record that must normally accompany civil motions for leave to appeal. That’s an important step. Even the significant revisions to the Appellate Division’s rules in the fall of 2018 still required the parties to file 5 paper copies of the briefs and record. Now at the Court of Appeals, under these rule amendments, you can file your motion for leave with the original and only a single copy for the Court’s use.

Another change to note: under the Court’s rules, you used to have to serve your adversary with two copies of your motion for leave to appeal, and your affidavit of service needed to note specifically that two copies were served (I made the mistake of not noting that two copies were served one too many times, only to get a very nice reminder call from the motion’s clerk upon receipt). No longer. Now, only one copy of the motion needs to be served.

With these changes, here’s hoping that we can move ever closer to a fully digital filing system at both the Court of Appeals and the Appellate Division without the need to serve or submit the extra paper copies that go to sit in a file room somewhere in the basement of Court of Appeals Hall.

New York Daily Fantasy Sports Suit: What Happens When an Amicus Isn’t Actually a Friend of the Court

It isn’t often that New York appellate courts deny someone the right to submit an amicus brief in a pending appeal. It happens, but it’s rare. In fact, the only time that I remember seeing a New York appellate court turn away a proposed amicus brief was when the proposed amicus had a direct financial interest in the outcome of the appeal. The party, thus, wasn’t a true friend of the Court.

Time to add one more to my list.  In White v Cuomo, the case about whether daily fantasy sports are prohibited gambling under Article I, § 9 of the New York Constitution, the Appellate Division, Third Department, on Thursday, denied Rivers Casino’s motion to file an amicus brief in the case. Rivers’ brief had sought to provide the Court with an alternate definition of prohibited gambling, arguing that the term in the Constitution can’t be understood by the definition the Legislature later put in the Penal Law. Instead, it argued, the constitutional term can only be defined by its original meaning at the time the constitutional amendment was adopted in 1894, and at that time all forms of gambling were prohibited regardless of whether skill or luck dominated. Thus, DFS is prohibited gambling, Rivers sought to argue.

But now having denied Rivers’ amicus motion, the Court won’t consider those arguments. Why would the Court have denied Rivers’ motion when these kinds of motions are routinely granted, and none of the parties opposed Rivers’ motion? Let’s see if we can figure it out.

The Rules for Amicus Curiae Briefs

The rules for amicus submissions in pending appeals are fairly straightforward. Under Rule 500.23 of the Court of Appeals’ Rules of Practice, the Court looks at these criteria for determining whether to grant amicus relief:

Court of Appeals Amicus Rules

The Joint Appellate Division Rules are similar:

Appellate Division Amicus Rules

So, under the rules, New York’s appellate courts want to know:

  • who is the proposed amicus party;
  • what their interest in the case is;
  • what issues they want to brief for the court to consider;
  • that the issues are not mere duplications of the parties’ arguments, and bring something different for the court to consider, but do not raise new issues not raised or addressed by the parties or the court from which the appeal was taken; and
  • the proposed amicus party is a true friend of the court, and not someone who has a direct financial interest in the outcome of the litigation.

Although the Appellate Division’s Rules don’t have a formal timeliness component, the Court of Appeals has made clear that for an amicus motion to be considered, it must be made returnable at least one month before the appeal is scheduled for oral argument. Failure to comply will likely lead the Court to deny the motion, because the Judges wouldn’t have enough time to consider it before hearing the appeal. I’d venture to say that the Appellate Division likely applies a similar, albeit unexpressed, rule.

The Denial of Rivers’ Amicus Motion

The courts have a great deal of discretion in deciding whether to accept a proposed amicus brief, and unfortunately don’t have to give any reason for their decisions. So, we’re left to guess why the Third Department denied Rivers’ motion. In Rivers’ motion, it explained its interest in the case:

This appeal has important implications for Rivers’ business and for the regulated gambling industry more broadly. The industry has relied upon the settled understanding that the Constitution’s prohibition on gambling bound the Legislature, such that the only way to authorize a form of gambling was through constitutional amendment. To say the least, Chapter 237 fundamentally upsets the legal framework upon which this industry has justifiably relied (Rivers’ Proposed Amicus Brf, at 1).

It identified the issues it wanted the Third Department to consider—whether the constitutional ban on gambling must be interpreted according to its own terms based upon their original meaning—and Rivers’ arguments certainly differ from the parties’ focus on the statutory test for what is prohibited gambling. And the motion was submitted well before the case is scheduled for argument during the November term. Rivers’ motion seems to satisfy most of the Rules’ requirements for amicus submissions.

Here are the two potential issues that could have led to the Court deciding to deny Rivers the right to participate in the case. First, the issue that Rivers sought to raise is a new one to the case, and wasn’t raised by the parties or addressed by Judge Connolly at Supreme Court. That presents a problem under New York precedent. The Appellate Division has previously held that a proposed amicus party can’t raise new issues different from those argued by the parties (see e.g. Colgate-Palmolive Co. v Erie County, 39 AD2d 641 [4th Dept 1972] [“an Amicus curiae is not a party, and cannot assume the functions of one; he must accept the case before the court with issues made by the parties, and may not control the litigation. Nor may he introduce any issues; only the issues raised by the parties may be considered” (quotation marks and alterations omitted)]). And the Court of Appeals’ rules provide that expressly.

That may not be a fatal flaw, however. There’s certainly an argument that the scope of the constitutional definition of gambling has always been in the case, and Rivers’ argument for an originalist interpretation is merely an extension of the parties’ arguments, a new and different way of looking at the issue. But, the Court certainly was within its discretion to have concluded that Rivers’ proposed amicus brief sought to improperly raise a new constitutional issue that no one had addressed before and to have denied Rivers’ motion on that basis.

Second, although the Appellate Division’s rules don’t contain an express requirement for a proposed amicus party to disclose their financial stake in the case or whether a party is backing or funding the amicus submission, whether an amicus party is a true friend of the court, rather than a party with a direct financial interest in the outcome of the case, is certainly something that the Court can, and often does, consider. Indeed, the Court of Appeals’ rules expressly require those disclosures in an amicus motion.

Here, Rivers’ motion does not disclose who contributed to or was financially backing the amicus submission. Rivers states that it has paid a bunch of money for a casino license in reliance on its understanding that the only forms of gambling that will be allowed in New York are those that have secured a constitutional amendment to be excepted from the constitutional ban, like horse racing and casino gambling. Could the Court have been concerned that Rivers’ interest was a purely economic concern about competition to its brick and mortar casino, and wasn’t a true friend of the court seeking to assist the Court with its decision? That’s what some have guessed, including former Court of Appeals Judge Robert Smith:

We’ll never know exactly why the Third Department decided against considering Rivers’ amicus brief in support of the plaintiffs’ position that DFS is unconstitutional gambling, but it certainly seems the Court had justifiable grounds for deciding as it did.


Appellate Division E-Filing Update: Fourth Department Rings in New Year With Voluntary E-Filing

E-filing appeals in the Appellate Division has expanded again. This time to ring in the new year, the Fourth Department announced that it would expand its e-filing program to all civil appeals on a voluntary basis. Before, the Fourth Department had limited e-filed appeals to Commercial Division matters, Surrogate’s Court matters, and all matters that were e-filed in Supreme Court below. Now, all an appellant needs to do is e-file the appeal in the first instance and serve on the respondents a notice of e-filing, and the required Entry of Initial Information for Electronic Filing (22 NYCRR § 1245.3). That’s it.

Here’s the only catch. Because the Fourth Department hasn’t yet made e-filing mandatory, the other parties still can decide not to e-file the appeal. But why would you do that? Outside of unfamiliarity with the e-filing system, I can’t see any reason not to consent. Plus, the Court encourages e-filing in all matters in which it is allowed, and advises that the e-filing program will continue to expand as 2019 progresses. You wouldn’t want to shrug off the Court’s preference for e-filing, would you? I sure wouldn’t.

Finally, the Fourth Department advises that the e-filing program will continue to expand as 2019 proceeds, which can only mean a move to mandatory e-filing in all civil appeals. That’s where the Third Department is, and the First and Second are getting closer too. This is yet another positive step for e-filing in New York, and a great way to start 2019. Happy New Year!

Appellate Division E-Filing Update: Second Department Expands Mandatorily E-Filed Appeals as of December 3, 2018

The New York Appellate Division e-filing program has gone so well that the Second Department is expanding it again. After a limited start in March that only included appeals originating from Westchester County, and then Suffolk in July, the Court has decided to include all appeals from orders in the Ninth Judicial District beginning on December 3, 2018.

The e-filing system has not only worked well for the courts and attorneys who practice frequently in the Appellate Division, but it has also opened up previously hard to get case documents for public view. If there’s an Appellate Division case you’re interested in, you can now just go to the NYSCEF e-filing system and search for the case as a guest. No login or payment necessary, unlike the federal courts’ PACER system. Better access to the courts and case documents is always a good thing.

As the Appellate Division e-filing system evolves, there are a few changes I’d love to see, like being able to search for cases with specific issues or motions. But for now, the transition to appellate e-filing has gone about as well as could have been expected. And the Clerk’s Offices in each of the courts deserves plenty of credit for that.

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.

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!

The Appellate Division Adopts New Uniform Rules of Practice Effective September 17, 2018

Under New York’s unique court structure, the Appellate Division is supposed to be a single statewide intermediate appellate court, broken into four different departments, where most appeals from the decisions of the trial court are finally resolved. But up until now, the four departments have functioned largely independently with rules of practice and customs unique to each.

Come September 17, 2018, however, all of the Departments of the Appellate Division will adopt a new set of uniform rules that will govern appellate practice in New York’s intermediate appellate courts throughout the State. Whether you’re before the First Department in Manhattan, the Second Department in Brooklyn, the Third Department in Albany, or the Fourth Department in Rochester, the rules will finally all be the same (for the most part).  That uniformity will make appellate practice so much better.

Here’s a quick look at some of the rules that are changing.

Perfecting Appeals

Before the new uniform rules were adopted, the Appellate Division departments had different time limits before an appeal would be dismissed as abandoned. In the First, Third, and Fourth Departments, the rule was if you don’t perfect your appeal within 9 months after serving the notice of appeal, the appeal would be dismissed as abandoned. In the Second Department, however, it was only 6 months.  The new uniform rules now provide that 6 months is the general rule.  The parties can, however, stipulate to extend the perfection date up to 60 days, and the appellant can thereafter apply by letter to extend the date another 30 days.  So, if the courts grant the extension requests, the date to perfect an appeal would be back to 9 months.


Under the new uniform rules, all of the Appellate Division departments have adopted maximum word counts for briefs (14,000 for appellant’s and respondent’s briefs, and 7,000 for reply briefs). Before, the Third and Fourth Departments had maintained page limits, while the First and Second Department had moved to word counts. The uniform rules also now require briefs to be set in 14-point font (12-point for footnotes), which is new for many of the Departments.  And with the new word limits and font requirements, the last page of each brief must contain a certification telling the Court the name of the typeface, point size, line spacing, and word count to ensure compliance with the new rules.

Best of all, by adopting the uniform rules, the Fourth Department has done away with its (annoying) “no footnotes of any kind in briefs” rule! It was about time.

Challenging Constitutionality of State Statute

A new provision in the uniform rules gives the Attorney General the right to intervene in any case challenging the constitutionality of a state statute to which the State is not already a party. To allow the Attorney General the opportunity to make the decision whether to intervene, the party raising the constitutionality issue in such a case will be required to serve its brief on the Attorney General. That’s a logical extension of CPLR 1012, which gives the Attorney General the same right in proceedings before the trial courts.

Oral Argument

If your brief doesn’t specifically state that you are requesting oral argument of the appeal, and request a specific time allotment, you will be deemed to have waived oral argument and to have submitted the appeal on the briefs. This isn’t really a new requirement, it’s just more clearly stated in the new uniform rules.  The uniform rules also preserve the rules in the First and Third Departments that rebuttal time will be permitted if requested by the appellant’s counsel at the beginning of argument.  No such luck in the Second and Fourth Departments. Both have kept their previous rules prohibiting rebuttal time. Too bad.

Local Rules Preserved

Ok, ok. So, some of the unique local practices of the Appellate Division departments have been preserved in the local rules of each department.  Like the First Department’s rule that an appeal has to be placed on the calendar by the appellate at least 57 days before the first day of the term for which the appeal has been set.  And the Second Department’s rule that rebuttal isn’t available during oral argument, as I mentioned. The Third Department’s local rules deal mostly with the unemployment insurance, workers’ compensation, and Sex Offender Registration Act appeals that are a unique part of the Court’s docket. The Fourth Department did its best to keep its brief cover color requirements (blue for the appellant, red for the respondent, and gray for the reply brief) through the change to e-filing.

All in all, adoption of a new set of uniform rules for the Appellate Division is yet another step in the right direction, after the courts earlier this year adopted mandatory e-filing for many appeals and then recently expanded the e-filing program.  The new uniform rules will make it easier to practice in New York’s appellate courts for attorneys and clients alike.  Anything that makes practice better is a good thing in my book.

The Appellate Division Expands E-Filing to New Categories of Appeals

The Appellate Division announced that it is expanding its e-filing system to include appeals in more cases.  As I discussed when the new Appellate Division e-filing system came online in March, it was a limited roll out, with the kinds of cases that are subject to mandatory e-filing limited in each of the Departments.  Here’s where the system started on March 1st:

The roll out has gone so well that the Second, Third, and Fourth Departments have recently decided to include more types of appeals that have to be e-filed.

Second Department

On July 2, 2018, the Second Department expanded its mandatory appellate e-filing to include all matters originating and electronically filed in Supreme and Surrogate’s Courts in Suffolk County.  To be subject to the mandatory e-filing, the notice of appeal has to be either dated on or after July 2nd, or if it’s dated before July 2nd, the appeal has to be perfected after August 15th. For appeals perfected before July 2nd, e-filing is not available.

So now, the Second Department’s e-filing system includes most appeals coming out of Westchester and Suffolk Counties.

Third Department

The Third Department has had the greatest expansion of the three. The Court decided that as of April 1st, appeals in civil actions commenced by summons and complaint in Supreme Court for the Fourth and Sixth Judicial Districts would be subject to e-filing.  The Court also included all matters that were e-filed in the trial court where the notice of appeal is filed after April 1st, and allowed all parties to consent to the appeal being e-filed as well, even if it wasn’t e-filed below.

On July 1st, the Court expanded the e-filing program to include all appeals in civil proceedings commenced by petition in Supreme Court, and transferred proceedings, where the notice of appeal is filed after July 1st.  That includes a huge swath of CPLR Article 78 proceedings against municipalities and state agencies, as well as many other special proceedings that weren’t previously included. The Court also included cases from  County Court, the Court of Claims, and Surrogate’s Court where the notice of appeal is filed after July 1st.

In all practical effect, the Third Department now requires appellate e-filing in pretty much every case.

Fourth Department

The Fourth Department expanded its mandatory e-filing program to include all appeals filed on or after July 1st in Surrogate’s Court cases.  It’s also launching voluntary e-filing for all cases that were e-filed at Supreme Court. That’s also a big expansion from the previous program that only allowed e-filing in Commercial Division appeals.

It’s a great sign to see the Appellate Division expand the categories of e-filed cases so soon after first rolling out the system in March.  The e-filing process remains the same, but now attorneys get a choice to e-file in most appeals.  Given the convenience that option offers, I would hope to see many attorneys take advantage.

Appellate Division E-Filing Begins March 1, 2018 with Brand New Uniform Rules

Just a few weeks ago, Chief Judge Janet DiFiore announced in her State of Our Judiciary speech that e-filing appeals in the Appellate Division would begin on March 1st. After the Office of Court Administration sought comments on proposed e-filing rules last summer, we knew that e-filing would soon begin. But the official date hadn’t yet been announced. Now, we know. As Chief Judge DiFiore explained, the courts took the bar’s comments to heart and made many changes to the final e-filing rules, which apply uniformly to all four Appellate Division departments. Here are the highlights of how the system will work.

First, this isn’t a full roll out of e-filing in every appeal. To begin on March 1, only limited kinds of cases will have to be e-filed, and they will vary by the Appellate Division Department.

As the e-filing system gets underway, and the Appellate Division works out any kinks, the list of cases will grow. Hopefully, it won’t be long before all appeals will be e-filed.

If you have a new appeal after March 1st (and your case falls within the list of selected cases), how have the appellate rules and procedures changed? First, after you file your notice of appeal, and the Appellate Division receives it, the Court will issue a Notice of Appellate Case or Docket Number. Counsel for the appellant must then file electronically a notice of appearance and, within 7 days, serve a copy of the notice on all other parties and file proof of the service. That’s an entirely new requirement.

Other counsel must then also appear on the electronic docket within 20 days after service of the Notice of Appellate Case or Docket Number, after which all briefs, records, appendices, and other documents would be deemed served when filed electronically.

Recognizing the reality that many attorneys use appellate printers to put together and file their briefs, and likely not wanting to put the appellate printing industry out of business in the state courts, the rules allow for the attorneys to designate a filing agent who may file on his or her client’s behalf. The attorney, however, is the one who remains on the hook for what is filed and ensuring that all deadlines are met.

Although some pro se parties have been previously excluded from e-filing, the new rules will allow a pro se party to choose to participate and e-file his or her brief using the same conventions as counseled parties.

And what are those conventions? Well, if you haven’t learned how to bookmark your PDF briefs and records on appeal yet, now is the time to learn because that’s what the rules require. Briefs must be filed in PDF/A format with the tables of contents of briefs and records linked to the corresponding pages inside. Never done it before? A few helpful resources can be found here (Adobe, Nuance). Also, if the record volumes get too big, they should be split into multiple documents and e-filed separately to ensure they aren’t rejected as exceeding the 100 MB maximum file size.

The new Appellate Division e-filing rules don’t entirely eliminate the need to file hard copies of your brief and record with the Court. But the total number has been reduced to an original and five copies. So, some paper will be saved, but not a ton.

Also, you don’t have to file the hard copies simultaneously with the electronic filing. Instead, the rules require that the parties wait for the Clerk’s Office to review and approve the electronic copy before filing the hard copies. Once you receive the approval notice from the Clerk’s Office, you have 2 business days to file the hard copies.

Finally, like with all other e-filing, the electronically filed documents are considered filed and served when they are uploaded to the NYSCEF system. That means attorneys are no longer constrained by the 5 p.m. (or sometimes earlier) court closing deadline. Instead, lawyers who can’t just put the pen down can write and edit until their heart’s content or midnight, whichever is earlier.  That’s good news for those of us who have had to have a courier race a brief to the Appellate Division at the last minute before 5, and bad news for procrastinators who need a firm deadline to be productive.  I see many late night filings ahead in the Appellate Division.

This is an exciting development, as New York starts to catch up with its counterparts in the federal courts. As the Appellate Division e-filing system gets underway on March 1st, it will hopefully work well enough to convince OCA that e-filing should be expanded to all appeals and, eventually, to all New York courts. Indeed, e-filing is good not only for lawyers, but it also provides the public with a valuable opportunity to get access to the court documents on which decisions are based. That, plus New York’s move to live stream all appellate arguments throughout the state, provides a level of transparency that just wasn’t present before. Now, you can read the parties’ briefs, watch the arguments, and read the court’s decision all from the comfort of your own computer screen. What could be better than that!

The new Appellate Division e-filing rules can be found here.

Blog at

Up ↑

%d bloggers like this: