Seeking Permission/Leave to Appeal to the New York Court of Appeals Is Fraught with Confusion

The New York Constitution and Statutes governing which New York State courts have authority (i.e., jurisdiction) to grant permission to appeal to the Court of Appeals can be confusing and in many cases seemingly illogical.gavel-3-1409593-m

Like the United States Supreme Court, the New York Court of Appeals is generally a certiorari type court in that, with few exceptions — such as for appeals from Appellate Division decisions finally deciding the action and in which there were either two dissents or a constitutional question; New York Constitution, Article VI, §3(b)(7) and CPLR §5601(a) & (b) — the great majority of decisions can only be appealed to the Court of Appeals when permission (often referred to as “leave”) is granted. However, unlike the United States Supreme Court, which generally has the exclusive say over which cases will be granted certiorari, the authority to grant permission to appeal to the Court of Appeals is divided between that Court and the Appellate Division.

For appeals from Appellate Division decisions finally deciding an action (CPLR §5611 defines when an appellate division decision is deemed final) but do not fit into the very narrow category of decisions that are appealable as of right (per CPLR §5601, discussed above), permission can be granted by either the Appellate Division or the Court of Appeals pursuant to CPLR §5602(a). In such cases, the motion for leave to appeal can be made to either or both the Appellate Division and Court of Appeals, as both Courts have jurisdiction to grant permission. Thus, if the first motion for leave is initially made in the Appellate Division and denied by that Court, a second motion can be made in the Court of Appeals, giving the appealing party two bites at the apple.

Where it gets tricky is when a party seeks permission to appeal from an Appellate Court decision that does not finally determine the action. Here, only the Appellate Division can grant leave to appeal to the Court of Appeals (see CPLR §5602(b)). To put it another way, if a party is seeking permission to appeal a non-final decision to the Court of Appeals, it cannot get that permission from the Court of Appeals. Perhaps, because this rule is counterintuitive to what would be expected, many parties and their attorneys mistakenly skip over the Appellate Division and instead move for permission in the Court of Appeals. However, that would be fatal and result in a tersely worded Court of Appeals’ Order stating that the motion is denied because the Court lacks authority under the State Constitution to grant permission.

Moreover, deciphering which decisions are considered “final” for purposes of determining whether CPLR §5602(a) applies (i.e., appeals from final decisions) or CPLR §5602(b) (i.e., appeals from non-final decisions) is in-and-of-itself a minefield. Many decisions that seemingly create finality are not considered final. A common example of this confusion occurs for decisions affirming the denial of a motion to vacate a final judgment. While such decisions can logically be viewed as finally determining the action, the Court of Appeals does not deem them so, and accordingly will deny motions for leave to appeal that are made in that Court (see, e.g., McGovern v. Getz, 82 N.Y.2d 741). Only the Appellate Division can grant leave for such decisions pursuant to CPLR §5602(b).

As seen above, there are many instances for which the Appellate Division can grant permission to appeal where the Court of Appeals itself cannot grant permission. On the other hand, there are no instances where the Court of Appeals can grant permission where the Appellate Division cannot. For that and many other reasons (which are discussed in my more comprehensive New York State Bar Journal article on obtaining leave to appeal, Appeals from Intermediate Courts, New York State Bar Journal, March 1999, Vol. 71, No. 3), I generally if not always recommend that the motion for leave to appeal be first made in the Appellate Division, and if and when denied, then brought in the Court of Appeals if the decision being appealed appears to finally determine the action. Other than the time and cost of two potential motions, there is little to be lost in first moving in the Appellate Division. For, if that motion is bypassed and the motion for leave made only in the Court of Appeals and denied on jurisdictional grounds, there is no going back to the Appellate Division.

See my above cited article and future blogs for a discussion of related issues,  such as the strict time limits for these motions, as well as the parameters of cases that are more likely candidates for being granted leave. Mr. Young is highly experienced, having made hundreds of motions for leave to appeal to the Court of Appeals.