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The Appellate Division of the Supreme Court of New York: an Empirical Study of Its Powers and Functions As an Intermediate State Court

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The Appellate Division of the Supreme Court of New York: an Empirical Study of Its Powers and Functions As an Intermediate State Court Fordham Law Review Volume 47 Issue 6 Article 2 1979 The Appellate Division of the Supreme Court of New York: An Empirical Study of Its Powers and Functions as an Intermediate State Court Jill Paradise Botler M. Christine DeVita Stephen John Kallas William J. Ruane Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Jill Paradise Botler, M. Christine DeVita, Stephen John Kallas, and William J. Ruane, The Appellate Division of the Supreme Court of New York: An Empirical Study of Its Powers and Functions as an Intermediate State Court , 47 Fordham L. Rev. 929 (1979). Available at: https://ir.lawnet.fordham.edu/flr/vol47/iss6/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Appellate Division of the Supreme Court of New York: An Empirical Study of Its Powers and Functions as an Intermediate State Court Cover Page Footnote *The authors wish to express their appreciation to Charles D. Breitel, Former Chief Judge of the New York Court of Appeals; J. Robert Lynch, Justice of the Appellate Division, First Department; and James B.M. McNally, Aron Steuer, and Emilio Nunez, Former Justices of the Appellate Division, First Department, for sharing their insights into, and perspectives on, the appellate process during inrterviews with members of this study. The authors also wish to thank Paul Moskowitz, Administrative Assistant to the Presiding Justice, Appellate Division, First Department, and Stephen R. Grotsky, Librarian, Appellate Division, First Department, for their assistance in the empirical survey. **The Introduction was prepared by Sephan J. Kallas, who also assisted in the research for Part II; Parts I and V were prepared by William J. Ruane; Part II by M. Christine DeVita; Part III by Lucille LaBozzetta Weisbrot; and Part IV by Jill Paradise Botler. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol47/iss6/2 PROJECT THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK: AN EMPIRICAL STUDY OF ITS POWERS AND FUNCTIONS AS AN INTERMEDIATE STATE COURT* INTRODUCTION The Appellate Division of the Supreme Court of New York' is one of the busiest intermediate appellate courts in the United States.2 In addition, the jurisdiction of the First Department of the Appellate Division over New York City's financial district probably makes it the country's most important state appellate court in the commercial field. 3 The court's importance and its * The authors wish to express their appreciation to Charles D. Breitel, Former Chief Judge of the New York Court of Appeals; J. Robert Lynch, Justice of the Appellate Division, First Department; and James B.M. McNally, Aron Steuer, and Emilio Nufiez, Former Justices of the Appellate Division, First Department, for sharing their insights into, and perspectives on, the appellate process during interviews with members of this study. The authors also wish to thank Paul Moskowitz, Administrative Assistant to the Presiding Justice. Appellate Division, First Department, and Stephen R. Grotsky, Librarian, Appellate Division, First Department, for their assistance in the empirical survey. 1. The Appellate Division of the Supreme Court is the intermediate appellate court of New York State. The Appellate Division is actually comprised of four separate courts, one for each judicial department in the state. Each department handles appeals from the lower courts within its territorial jurisdiction, with the majority of such appeals arising from the supreme court or the county courts. The Appellate Division also hears appeals from administrative agencies. See, e.g., N.Y. Civ. Prac. Law § 7804(g) (McKinney 1963); N.Y. Exec. Law § 298 (McKinney 1972 & Supp. 1978). The Appellate Division has the power to exercise "all of the original jurisdiction of the supreme court." In re Association of the Bar, 222 A.D. 580, 585, 227 N.Y.S. 1, 6 (1st Dep't 1928); see N.Y. Civ. Prac. Law §§ 506(b), 3222(b), 7002(b) (McKinney 1970 & Supp- 1964-1978). But see Waldo v. Schmidt, 200 N.Y. 199, 93 N.E. 477 (1910). The W1aldo court stated: -There is but one Supreme Court, . .but it is divided ... into two distinct parts. The Trial and Special Term comprise one part, vested with the general original jurisdiction in law and equity-. The Appellate Division forms another and distinct part of the same court. lIt was] created for the express purpose of exercising appellate jurisdiction ... ."Id. at 202, 93 N.E. at 478. In any event, the Appellate Division rarely, if ever, exercises such jurisdiction. D. Siegel, New York Practice § 11 (1978). The Appellate Division also has exclusive original jurisdiction with respect to the licensing and supervision of attorneys. N.Y. Jud. Law § 90 (McKinney 1968 & Supp. 1978). For a discussion of the original jurisdiction of the court, see D. Siegel, supra, § 11. 2. It appears that the Appellate Division of New York and the California Court of Appeals are the most active intermediate appellate courts in the country. In 1977, the four departments of the Appellate Division decided 14,628 motions and disposed of 7,744 appeals from judgments or orders. Twenty-Third Ann. Rep. N.Y. Jud. Conference 51 (1978). The total of 22,372 decided motions and dispositions of judgments or orders appealed from slightly exceeds the 22,223 transactions in the California Courts of Appeal for the fiscal year 1976-77. Judicial Council of California, Annual Report of the Administrative Office of the California Courts 71 (1978) The total number of transactions includes appeals, original proceedings, motions, rehearings granted or denied, and miscellaneous orders. Id. 3. It is precisely for this reason that the United States Court of Appeals for the Second Circuit has been cited as the most important federal commercial court in the country. N.Y. Times, Mar. 13, 1979, at 1, col. 1. A former justice of the Appellate Division, First Department, has stated that the high concentration of business and industry in New York County is the "only explanation" for the large caseload. Transcript of Interview with James B.M. McNally, Former FORDHAM LAW REVIEW [Vol. 47 overwhelming caseload are also attributable to the breadth of the court's appellate powers4 with respect to both the range of orders and judgments 6 appealable to the court 5 and the wide scope of review it may exercise. In essence, the Appellate Division has de novo review powers which allow the court to render whatever decree the case requires. 7 Courts of other jurisdictions typically apply a narrower review standard, scrutinizing only whether the trial proceedings were fair and whether the judgment appealed from was supported by sufficient evidence. 8 In contrast, the Appellate Divi- sion's de novo review power gives it the authority to review questions of fact as well as questions of law. 9 A purported advantage of de novo review is that it allows the appellate court to alleviate any plain miscarriage of justice. It also permits the court to make new findings of fact in certain circumstances, further ensuring a more thorough review of the case below. Allowing such review, however, gives rise to the potential threat of relegating the trial court proceeding to little more than a preliminary hearing with the final decision reserved for the appellate court.' 0 This may allow the Appellate Division to invade the traditional factfinding functions of the jury or, in a nonjury case, the trial judge. Moreover, the breadth of the court's review powers creates the risk that the lower courts will perceive their function as preliminary, and thus render adjudications with less care and attention than they might otherwise. Appealability in New York is also very broad. The New York Civil Practice Law and Rules (CPLR) allows appeals from almost all judgments, whether final or interlocutory, as well as most orders determining motions made upon notice to all parties." The relevant provisions of the New York Criminal Procedure Law (CPL) are also very liberal. 12 In civil actions this ease of appealability often enables a party to gain immediate review of an order made during the course of an action, rather than waiting until entry of a final order in the action. On the other hand, broad appealability as of right has imposed a burdensome caseload upon the Appellate Division, allowing appeals from all but the most preliminary orders in an action.13 Justice of the Appellate Division, First Department, in New York City, at B 1 (Nov. IS, 1978) [hereinafter cited as McNally Interview]. 4. As used herein, the term "appellate powers" refers both to the range of orders and judgments appealable to the court and to the court's "scope of review" or "review powers." These latter terms are used interchangeably to refer specifically to the types of questions the Appellate Division may consider and to the various dispositions the court may make. 5. The range is especially broad in civil appeals from the supreme court or a county court. N.Y. Civ. Prac. Law § 5701(a) (McKinney 1978); see pt. II(A)(1) infra. 6. N.Y. Civ. Prac. Law § 5501(c) (McKinney 1978); N.Y. Crim. Proc. Law § 470.15(1) (McKinney 1971); see pt. III infra. 7. See note 290 infra and accompanying text. 8. E.g., Cal. Penal Code §§ 1235, 1259 (West 1970); Conn. Gen. Stat. Ann. §§ 52-263, 54-96 (West Supp. 1978); notes 311-12 infra and accompanying text.
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