There are only four ways a case can get to the Court of Appeals: (1) by leave of the Court; (2) by leave of the Appellate Division; (3) on a party’s appeal as a matter of right; and (4) by questions certified from another court that the Court accepts for review. The list is short, but its brevity masks a Pandora’s box of complexity. This brief summary sets out some of the most common concerns associated with taking an appeal to the Court of Appeals, but it is not, and does not aspire to be, a substitute for the existing resources on the subject of the Court of Appeals’ jurisdiction.
(1)
Court of Appeals Leave: CPLR 5602(a)
The most common way a case arrives at the Court—more than 40% of its civil docket—is through a grant of leave to appeal issued by the Court itself. The Court, however, cannot grant leave in just any case; statutory limitations restrict its so-called certiorari jurisdiction to two scenarios. In the first, more common scenario, the Court can grant leave to review a final judgment issued by the Appellate Division. In the second, less common scenario, the Court can grant leave directly from a final judgment issued by a lower court (or administrative agency), bypassing Appellate Division. This option is available only if the Appellate Division at an earlier stage of the case issued an order that was non-final (and thus Court of Appeals leave to review it was unavailable) and that necessarily affected the final judgment.
As this description makes clear, leave from the Court is available only from a final judgment. In this context, “final” is a term of art that deserves close scrutiny. Some judgments that look like the end of a particular litigation—like a dismissal without prejudice or a class certification order—are non-final because they come too early in the litigation. On the other hand, some judgments that look complete—like a fully adjudicated contempt motion or proceedings to enforce a judgment—are non-final because they come too late. Common sense is not necessarily a guide in this area, and treatises have been written on the subject of finality. (Jurisdictional letters, a part of the appellate process that we discuss below, also frequently address the issue of finality. To see our collection of those letters, click here.)
Even if Court of Appeals leave is available, it will only be granted if two judges of the Court think the case is leave-worthy. There are no statutory criteria for leave. The Court’s rules suggest that leave might be warranted if the issues in the case “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.” 22 NYCRR § 500.22(b)(4). And the Court’s Civil Practice Outline provides additional description of some of the considerations that might make a case more or less leave-worthy. Even if not strictly binding, these criteria provide a helpful framework for organizing a would-be appellant’s presentation of her case for leave.
(2)
Appellate Division Leave: CPLR 5602(b)
While the Court of Appeals’ leave authority is limited to cases involving a final judgment, the Appellate Division is not no limited: it may grant leave to appeal from any final or non-final order (except an order granting a new trial, more on that later). This means that, in some cases (i.e., those involving a final judgment), a party may seek leave twice, in the Appellate Division and then from the Court directly. In other cases (i.e., those involving a non-final judgment), the Appellate Division will be a party’s only meaningful chance to seek Court of Appeals review.
Needless to say, it can be challenging to convince a court that just decided an appeal that its decision deserves further appellate review, particularly since most departments of the Appellate Division assign leave motions to the panel that decided the appeal from which leave is sought. What’s more, in 2018 Chief Judge DiFiore admonished the Appellate Division to grant leave less frequently, making the point that the Court should judge for itself which cases are important enough to warrant its review. Unsurprisingly, Appellate Division leave grants are now historically rare, accounting for approximately 18% of the Court’s civil docket in 2019 (down from approximately 30% in past years). As with the Court of Appeals, there are no hard-and-fast criteria for obtaining leave from the Appellate Division, and motions are typically guided by the same factors that would apply if the motion were made in the Court of Appeals.
There is a nuance for Appellate Division leave motions, especially those involving a non-final order. When the Appellate Division grants leave, technically what it does is certify a question of law for the Court of Appeals to review. Typically, a party will propose a question for certification in its leave motion, and this should be done with care because there are some technical restrictions on the Appellate Division’s certification authority that can be implicated by the way the court frames its certified question. In cases where framing the certified question matters, counsel should pay close attention to these restrictions and navigate them carefully. In most cases, however, these restrictions are avoided simply by asking the Appellate Division certify the broad question “Was the order of this court correctly made?” Certifying such a question appears to be the practice of most of the Appellate Division departments, regardless of the question proposed by the party seeking leave.
(3)
Appeal as of Right: CPLR 5601
There are some limited circumstances in which a party who has lost in the Appellate Division may appeal to the Court of Appeals automatically, without seeking leave. Although the relevant statutory provisions appear straightforward, the Court has developed doctrines that restrict each of the avenues for automatic appeal. And the Court polices those restrictions zealously through the jurisdictional-letter process. That is, in every (or nearly every) appeal filed as a matter of right, the Court sends the parties a letter asking them to address jurisdictional questions in letter-briefing that must be submitted before the Court accepts the case for review. This jurisdictional inquiry is the end of the road for most as-of-right appeals: in 2019, there were no appeals filed as of right where the Court decided it had jurisdiction, and only two appeals that the Court allowed to proceed to merits briefing for the jurisdictional question to be resolved there.
We briefly describe each of the grounds for an appeal as of right below. But the bottom line is this: for litigants seeking to take an appeal to the Court automatically, the best practice is to draft a jurisdictional letter response before filing the appeal. To ease that process somewhat, we have collected a modest library of jurisdictional-letter responses in cases in which the Court accepted jurisdiction, arranged by jurisdictional predicate. These should help litigants appreciate the kinds of responses that the Court expects to see in cases where it sustains jurisdiction.
Two-Judge Dissents: CPLR 5601(a).
An automatic appeal is authorized from any final Appellate Division order that generated a “dissent by at least two justices on a question of law in favor of the party taking such appeal.” This provision has some obvious baked-in limitations. The Appellate Division order must be final; the same questions of finality mentioned above apply to two-judge dissents. The dissent must be by two judges; a single judge dissent is not enough, even if the Appellate Division panel had only four justices on it. The dissent must be on a question of law; factual disputes between the majority and the dissent, or disagreements about the exercise of discretion, will not support an appeal as of right under this provision. And the dissent must be favorable to the appealing party; if the appealing party would still have lost in the Appellate Division, even if the dissenters’ position were adopted, there can be no automatic appeal. (To view our collection of jurisdictional letters addressing appeals as of right from a two judge dissent, click here.)
Constitutional Questions: CPLR 5601(b).
In the main, this provision authorizes an automatic appeal from any final Appellate Division order “where there is directly involved the construction of the constitution of the state or of the United States.” Again, the Appellate Division order must be final, but there are additional restrictions beyond finality that limit the appeals authorized by this provision. The most obvious limitation is that the constitutional question must be “directly involved.” Among other things, this means that the constitutional question must be preserved and it must be one that affected the outcome of the case; an Appellate Division decision that rules against a litigant on constitutional and statutory grounds, for example, does not “directly involve” a constitutional question for the purposes of automatic appeal to the Court of Appeals. In addition, the constitutional question must be “substantial.” This unwritten requirement means that an appeal of right probably will not lie from an Appellate Division order if the constitutional question is meritless or has been clearly resolved as a matter of state or even of federal law. (To view our collection of jurisdictional letters addressing appeals as of right based on a constitutional question, click here.)
This provision also authorizes an appeal directly from a final lower-court judgment that finally determines the action, if “the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States.” If a litigant has taken an automatic appeal to the Court of Appeals under this provision in error—for instance, because the appeal involves questions in addition to the constitutional question—the Court will simply transfer the case to the Appellate Division to decide it in the normal course. (To view our collection of jurisdictional letters addressing appeals as of right based on a statute’s constitutional invalidity, click here.)
Stipulation to Judgement Absolute: CPLR 5601(c).
An automatic appeal is authorized from any Appellate Division order granting a new trial or hearing “where the appellant stipulates that, upon affirmance, judgment absolute shall be entered against him.” In essence, this provision allows a party who has been ordered back to trial to obtain an appeal rather than a new trial by conceding, in a stipulation, that final judgment may be entered against the party if it loses the appeal. This is an exceedingly rare provision: the Court has accepted only one case on this basis in the last five years. And the consequences of incorrectly invoking this provision can be severe: an improperly taken stipulated-judgment appeal can result in a summary Court of Appeals affirmance, meaning that the would-be appellant gets neither her appeal nor the new trial ordered by the Appellate Division.
For present purposes, there are two things to note about the stipulated judgment appeal. First, this is the only way to appeal an order granting a new trial or hearing. Although such an order would appear to be non-final, and thus subject to the Appellate Division’s discretionary leave authority, the Court has made clear that the Appellate Division may not grant leave to appeal from an order granting a new trial or hearing. Second, a “stipulation to judgment absolute” means what it says: the judgment stipulated-to must be “absolute.” A stipulation that would not, in wording or effect, result in the entry of a completely final judgment against the would-be appellant will be considered insufficient and could result in summary Court of Appeals affirmance. (To view our collection of jurisdictional letters addressing stipulated judgment appeals, click here.)
Appeal as of Right From a Non-Final Judgment: CPLR 5601(d).
What happens if you have an interlocutory order from the Appellate Division that would entitle you to an appeal as of right, because the order directly involved a substantial constitutional question or produced a two-judge dissent on a point of law, but no appeal as of right lies because the order is non-final? CPLR 5601(d) allows a party with such an interlocutory order to appeal as of right from the trial court, bypassing the Appellate Division, once a final judgment has been issued. There are some limitations here, most notably that the interlocutory order must “necessarily affect” the final judgment, and the appealing party can raise only the issues decided in the interlocutory order. (To view our collection of jurisdictional letters addressing the “necessarily affects” concept, click here.)
(4)
Certified Questions
The last way a case can get to the Court of Appeals is through certification from a federal court of appeals or a state court of last resort. The Court’s rules provide that certification is available in any case involving issues for which “no controlling precedent of the Court of Appeals exists.” Certifying courts typically have their own rules about whether to grant certification. For instance, the Second Circuit typically considers whether: (1) the Court of Appeals has squarely addressed the issue or other decisions by New York courts point to how the question would be resolved; (2) the statute’s plain language indicates an answer, in cases involving a New York statute; (3) a decision on the merits requires value judgments and important public policy choices that the Court of Appeals is better situated to make; and (4) the questions certified will control the outcome of the case. This last point is fairly important, since the Court will not infrequently decline to accept a certified question if the appeal does not hinge on the answer.