APPELLATE PRACTICE PITFALLS: BEYOND THE BASICS, ANTICIPATING PROBLEMS by ELLIOTT SCHEINBERG, Esq. Law Offices of Elliott Scheinberg, Esq. Staten Island 153 154 General Commentary on Article 55, Prof. David D. Siegel “Article 55 supplies the procedural instruction for the taking and perfecting of appeals, but it does so only after leading off, in CPLR 5501, with “scope of review”, a subject more substantive than procedural in its impact. “Reviewability”, as scope of review is sometimes called, is easily confused with “appealability”, which determines what dispositions may be appealed.” Judgments and orders appealable to the Court of Appeals are the subject of Article 56; those appealable to the appellate division, Article 57. Once an appeal is taken, however, on the authority of whichever of the two articles is in point, the question of what will be reviewed by the appellate court is determined by the “scope of review” instruction of CPLR 5501.” Patron v. Patron 40 N.Y.2d 582, 584, 388 N.Y.S.2d 890 (1976): Appealability = the right to be in the Court of Appeals, “depends on the scope of the Court’s power to review” [what dispositions may be appealed]. Reviewability = the authority of the Court of Appeals once the appeal is before the Court to consider the issues (Cohen and Karger, Op. cit., pp. 4, 447). “Reviewability” and “Appealability” Distinguished. Prof. David Siegel, Practice Commentaries, C5501:2 “Article 57 of the CPLR sets forth the list of judgments and orders that may be appealed to the appellate division. Article 56 does the same for the Court of Appeals. But the fact that a given case may be appealed does not automatically insure the appellant review of the point that aggrieves her. ‘Reviewability’, as we may call it, is not always coextensive with ‘appealability’. Examples of where the two diverge are likely to involve the Court of Appeals more than any other court, because of the court's narrow powers of review. An appeal may be taken to the Court of Appeals, for example, from an appellate division order finally determining an action, upon a showing that two appellate division justices dissented on a point of law. On that appeal, the Court of Appeals can review any question of law. But because the Court of Appeals lacks the general power to review findings of fact, the mere presence of the case before the Court of Appeals, brought there readily enough under the “appealability” standards of CPLR 5601, will not earn review of the fact findings because of the restrictions imposed on ‘reviewability’ by subdivision (b) of CPLR 5501. In rare instances the question of whether a given case is ‘appealable’ to the Court of Appeals may even turn on whether or not the point it presents is ‘reviewable’. See, e.g., Patron v. Patron, 40 N.Y.2d 582, 388 N.Y.S.2d 890 (1976). Patron was decided when, under CPLR 5601(a), a showing that the appellate division had merely ‘modified’ the lower court's judgment could set the stage for an appeal to the Court of Appeals. The modification option was later removed--see Commentary C5601:3 on CPLR 5601 below--but the case remains a good instruction on the occasional interplay between ‘appealability’ and ‘reviewability’.” -1- 155 REVIEWABILITY Court of Appeals May Not Review Question of Weight of Evidence But It May Review Issue of Sufficiency of the Evidence Heary Bros. Lightning Protection Co., Inc. v. Intertek Testing Services, N.A., Inc. 4 N.Y.3d 615, 797 N.Y.S.2d 400 (2005) Defendant argues that we have no power to review the Appellate Division's decision because it resolved a question of fact, not a question of law (CPLR 5501[b] ). We disagree, and hold that the decision is reviewable. [1] The problem arises because the Appellate Division opinion says that Supreme Court's order is “modified on the law,” but also says that “the jury's award of damages is against the weight of evidence”...A “weight of the evidence” determination is a factual one that we have no power to review (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498–500, 410 N.Y.S.2d 282 [1978] ). The result reached shows that in reality the Appellate Division ruled on the sufficiency, not the weight, of the evidence. The Appellate Division held that the new trial it ordered “shall be on damages from September 1998 to April 2000,” thus prohibiting any award of damages for a later time...In effect, the Appellate Division directed a verdict against plaintiffs as to post-April 2000 damages—a ruling of law that this Court is empowered to review (Cohen, 45 N.Y.2d at 497–498, 500, 410 N.Y.S.2d 282; Karger, Powers of the New York Court of Appeals § 77[c], at 475–476 [3d ed] ). Settlement of the Record Every appellant has a clear legal right to settlement of the record.1 1 Weeden v. Ark, 2 A.D.3d 1280, 768 N.Y.S.2d 891 (4th Dept.,2003); Matter of Lavar C., 185 A.D.2d 36, 592 N.Y.S.2d 535 (4th Dept.,1992). -2- 156 CPLR 5601(c), JUDGMENT ABSOLUTE CPLR 5601. Appeals to the court of appeals as of right (a) Dissent. An appeal may be taken to the court of appeals as of right in an action originating in the supreme court, a county court, a surrogate's court, the family court, the court of claims or an administrative agency, from an order of the appellate division which finally determines the action, where there is a dissent by at least two justices on a question of law in favor of the party taking such appeal. (b) Constitutional grounds. An appeal may be taken to the court of appeals as of right: 1. from an order of the appellate division which finally determines an action where there is directly involved the construction of the constitution of the state or of the United States; and 2. from a judgment of a court of record of original instance which finally determines an action where 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. (c) From order granting new trial or hearing, upon stipulation for judgment absolute. An appeal may be taken to the court of appeals as of right in an action originating in the supreme court, a county court, a surrogate's court, the family court, the court of claims or an administrative agency, from an order of the appellate division granting or affirming the granting of a new trial or hearing where the appellant stipulates that, upon affirmance, judgment absolute shall be entered against him. (d) Based upon nonfinal determination of appellate division. An appeal may be taken to the court of appeals as of right from a final judgment entered in a court of original instance, from a final determination of an administrative agency or from a final arbitration award, or from an order of the appellate division which finally determines an appeal from such a judgment or determination, where the appellate division has made an order on a prior appeal in the action which necessarily affects the judgment, determination or award and which satisfies the requirements of subdivision (a) or of paragraph one of subdivision (b) except that of finality. 'Morales v. County of Nassau, 94 N.Y.2d 218, 703 N.Y.S.2d 61 (1999): Lacking finality, an order of the Appellate Division granting a new trial typically would not be appealable to this Court, but plaintiff has stipulated that, upon affirmance, judgment absolute shall be entered against her, permitting an exceptional appeal as of right (CPLR 5601[c] ). -3- 157 Absent prejudice, CPLR 3025 authorizes amendment to pleadings “at any time.” However, the procedural posture of this case prohibits our addressing plaintiff's motion to amend. On an appeal taken pursuant to stipulation for judgment absolute, the only matter this Court may consider is whether the Appellate Division erred as a matter of law in granting the new trial (Matter of Wilcox v. Zoning Bd. of Appeals, 17 N.Y.2d 249, 254, 270 N.Y.S.2d 569; Karger, Powers of the New York Court of Appeals § 47, at 293 [3d ed.] ). After the stipulation, which confines our review to the question whether the Appellate Division's reversal was proper, the time to amend had passed. Weiman v. Weiman, 295 N.Y. 150 (1946): 'A judgment entered upon a stipulation for judgment absolute is ‘* * * founded upon the agreement of the parties that a certain result should follow the decision of this court upon the questions of law presented to it by the record in court.' Roberts v. Baumgarten, 126 N.Y. 336, 341. It is ‘* * * in effect a stipulation for judgment by consent in case of affirmance.' Christensen v. Morse Dry Dock & Repair Co., 243 N.Y. 587; Canfield v. Elmer E. Harris & Co., 252 N.Y. 502, 505. Where, as in this case, the reversal is upon the facts as well as the law, any evidence which supports the determination of the Appellate Division would require an affirmance by this court. Curcio v. City of New York, 275 N.Y. 20... Prof. David Siegel, Practice Commentaries, C5615:1. Disposition in Judgment Absolute Situation. In three instances in New York appellate practice there is the procedure called the stipulation for judgment absolute. In two of them, the appellate division has made an order granting a new trial and the party whose lower court judgment is lost because of that order wants to appeal the order to the Court of Appeals.