§ 5501.Scope of review.

(See also Advisory Committee notes preceding this section, under subheading “Generally.”).

Subd (a) of this section combines provisions found in CPA §§ 580, 581, 582, 583 and 584-a and part of § 106. It relates to all appeals from final judgments.

Subparagraph 1, except for the words, “including . . . that appeal,” is taken from the first sentence of § 580. It has been broadened slightly in scope through the use of the words “non-final judgment or order” in place of specific reference to “an interlocutory judgment or an intermediate order.” This change achieves two results. It specifically permits review of any interlocutory order—the analogue, in special proceedings, of an interlocutory judgment—on an appeal from a final order. This may be done under existing case law. See, e.g., In re Satterlee’s Will, 2 NY2d 285, 290, 140 NE2d 543, 545 (1957) (dictum). It also permits the review of any order which meets the conditions of subparagraph 1, even if it is not an “intermediate” one within the meaning of the former statute. The words “intermediate order” have been given a literal interpretation: it was necessary that the order be made after commencement of the case and before its final determination. See Cohen & Karger, Powers of the New York Court of Appeals 337–39 (rev ed 1952); 9 Carmody-Wait, Cyclopedia of New York Practice 58–59 (1954). This might have occasionally required two separate appeals where all the issues could easily be raised on a single appeal, as is possible under the language of subparagraph 1 of this subdivision. The phrase “including . . . that appeal” has been added to cover the situation where the respondent objected to a nonfinal ruling but won below on the final judgment or order. The respondent, not being aggrieved, could not specify the nonfinal order in a notice of cross-appeal and the appellant could not and would not do so. While the cases are subject to conflicting interpretations, it appears that under former law the respondent might have been prohibited from attacking the nonfinal determination and could have suffered a reversal on the final determination even though consideration of the nonfinal determination might have entitled him to prevail in whole or in part on the appeal from the final judgment or order.

Cf. Matter of Zaiac, 279 NY 545, 18 NE2d 848 (1939); Kelsey v Western, 2 NY 500 (1849); Zeldman v Mutual Life Ins. Co. of New York, 269 App Div 53, 53 NYS2d 792 (1st Dept 1945); General Fireproofing Co. v Keepsdry Const. Co. 173 App Div 528, 160 NY Supp 179 (3d Dept 1916), affd 225 NY 180, 121 NE 768 (1919); Cohen & Karger, op cit supra at 394–95. The requirement that the nonfinal determination “necessarily affect” the final judgment or order is retained since it has proven to be an effective means of limiting the determinations which can be raised on an appeal from a final judgment or order to those which relate to possibly serious prejudicial errors. While any interlocutory judgment or order will “necessarily affect” a final determination, any other nonfinal order “necessarily affects” a final determination only if reversing the order would require a reversal or modification of the determination and there was no further opportunity during the trial to raise the issues decided by the order. See Cohen & Karger, op cit supra at 339–46; 9 Carmody-Wait, op cit supra at 59–62. The requirement that the notice of appeal specify any interlocutory judgment or intermediate order sought to be reviewed has been eliminated as unnecessary. Such specification is of no real aid to the opposing party at the time it is given. The last sentence of § 580, which stated that the right to review an interlocutory judgment or any order is not affected by the expiration of the time within which a separate appeal might have been taken, is also unnecessary and has been omitted. The second sentence of § 580, from which subparagraph 2 of this subdivision is derived, only related to cases involving a “final judgment,” i.e., actions but not special proceedings. There is no reason for this distinction. Under this subdivision, any order denying a new trial or hearing, whether made in an action or a special proceeding, may be reviewed on an appeal from the final determination of the case. The words “although not specified in the notice of appeal” in § 580 have been omitted as unnecessary. Under § 5701, a direct appeal from an order denying a new trial may be taken to the Appellate Division only by permission, but statutes governing various inferior courts allow such an appeal to a County Court or Appellate Term as of right. See, e.g., NYC Munic Ct Code § 154(3). It is intended that proposed subparagraph 2 apply to any order denying a new trial whether made before or after a final determination. See Cohen & Karger, op cit supra at 338. Subparagraph 3 is taken from subd 2 of § 583. It also includes the “substantial right” qualification of § 106 as it relates to appeals and should be read in conjunction with § 4017. The objection may come either before or after the ruling; the intent being to require the trial judge to be apprised of a claim of error. Subparagraph 4 is derived from § 582 and has been phrased to parallel subparagraph 3, including the “substantial right” qualification, insofar as possible. The former requirement that the remarks or comments be specified in the case (record on appeal) is omitted as unnecessary since if the remark is not found in the transcript, a motion to correct the transcript should be made. The word “remark” is as comprehensive as the former “remark or comment” and is used for simplicity. The word “objected” has been substituted for “excepted” in the former statute, since the latter concept is not used in the new CPLR. Subparagraph 5 is derived from § 584-a, which applied only to excessive verdicts. It has been broadened to include inadequate verdicts and thus is applicable to additurs as well as remittiturs. Although § 584-a did not specifically refer to a “final judgment or order,” its scope was limited to an appeal from such a judgment or order and, therefore, the insertion of those words in the new subparagraph does not change former law. No change is intended by the omission of CPA § 581 and subd 1 of § 583, which are both unnecessary.

The first sentence of subd (b) of this section is derived from CPA § 605 which was based upon § 7 of article VI of the Constitution. Detailed specification of actions and special proceedings has been omitted. The last sentence is taken from the part of former § 590 which former § 588(2) incorporated by reference; it relates only to appeals from a final determination where the Appellate Division has previously made an order necessarily affecting such determination.

Subd (c) of this section is based upon former case law and statutes. The first sentence is taken from parts of CPA §§ 608 and 626. Section 608 provided that questions of fact as well as questions of law might have been reviewed on an appeal from a final judgment of the Supreme Court. Although §§ 609 and 611, which governed appeals from orders or interlocutory judgments in actions, did not contain a similar provision, it was clear that the Appellate Division did review questions of fact in those cases. See, e.g., Spencer v Hardin, 149 App Div 667, 134 NY Supp 373 (1st Dept 1912) (order denying a new trial); E. P. Dutton & Co. v Cupples, 117 App Div 172, 102 NY Supp 309 (1st Dept 1907) (order denying an injunction). CPA §§ 626 and 634-a provided that appeals to the Appellate Division from inferior courts in actions, and appeals from former article 78 proceedings, should be subject to the provisions relating to appeals from the Supreme Court to the Appellate Division in actions, except where it was otherwise specially prescribed by law. No special provisions have been found in connection with the scope of review on such appeals. Thus, the scope of review in the Appellate Division upon an appeal in those cases was usually the same as on an appeal in an action in the Supreme Court (see 9 Carmody-Wait, Cyclopedia of New York Practice 637 (1954)) even when the determination sought to be reviewed was that of a County Court rendered in an appellate capacity. See Miller v Gullberg, 251 App Div 879, 298 NY Supp 214 (4th Dept 1937). The Supreme Court is mentioned with the County Court to cover appeals from the Buffalo City Court. See notes to CPLR § 5703(a). Of course, in the case of certain special proceedings, questions of fact are not reviewed—e.g., in reviewing determinations of administrative agencies. See Cohen & Karger, Powers of the New York Court of Appeals 460 (rev ed 1952); 1 Benjamin Administrative Adjudication in New York 328–346 (1942).

Subd (d) of this section is taken from a part of CPA § 626.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1986, ch 682, § 10; L 1997, ch 474, § 1, eff Nov 24 1997.