§ 5601.Appeals to the court of appeals as of right.

This section, corresponding to CPA § 588, outlines the cases in which appeals may be taken to the Court of Appeals as of right. The provisions covered have been reorganized to express more clearly the constitutional limitation that in a case originating in an inferior court—i. e., one other than the Supreme Court, a County Court, a Surrogate’s Court or the Court of Claims—appeal may be had only by permission of the Appellate Division. This limitation is inapplicable in the two situations where appeal as of right is authorized on the basis of a constitutional question: the constitutional provision itself expressly excepts appeals from the Appellate Division on constitutional grounds and, as to direct appeal from “a court of record of original jurisdiction” on such grounds, the Court of Appeals has held that the limitation does not apply. See Cohen & Karger, Powers of the New York Court of Appeals 245 & n. 39 (rev ed 1952). Indeed, in the former case, there is not even any requirement in the Constitution or statute that the court of original instance be a court of record. Accordingly, the new section treats cases involving constitutional grounds separately from all other cases, to which the inferior court limitation is applicable.

It has been suggested that appeal as of right should lie in cases involving questions as to which there is a conflict among the different departments of the Appellate Division. Apart from the difficulty of administering such a rule, the constitutional ban against expanding the Court’s jurisdiction prevents its adoption by statute. When no appeal lies as of right, the resolution of such conflicts depends upon the Court’s policy in granting permission to appeal.

Subd (a) of this section contains the most common grounds for appeal as of right—a dissent, reversal or modification in the Appellate Division—and is taken from subd 1(b) of CPA § 588. The two initial conditions are first stated: the case must not have originated in an inferior court and the Appellate Division order must be a final one. Although the Constitution excepts only the four named courts from the category of inferior courts, the provision has also been held applicable to proceedings originating in an administrative agency and reaching the Supreme Court or Appellate Division by way of appeal or review. See Cohen & Karger, Powers of the New York Court of Appeals 244 & nn. 34–35 (rev ed 1952). This rule was codified in 1942 by addition to former § 588 of the words “or an administrative agency” (see id. at 244–45) and this subdivision carries over this language. Changes of substance have been made respecting appeal by virtue of a dissent, reversal or modification. Under former law, those terms are unqualified. Following the express language of the former statute, the Court held that appeal as of right exists so long as there was a dissent, reversal or modification respecting any part of the judgment or order appealed from. This included cases where the dissent, reversal or modification concerned only a portion of the judgment or order by which the appellant was not aggrieved (see id. at 209 & n. 8), such as one affecting only a party other than the appellant or a cause of action which would not have been involved on the appeal. Thus, for example, in cases where a counterclaim was interposed, a dissent, reversal or modification concerning either party’s claim gave both parties an appeal as of right from any part of the determination by which they were aggrieved. Nor did it matter that only an aspect of the case beyond the jurisdiction of the Court to review, such as an award of costs or allowances, was concerned. See the numerous cases cited in Cohen & Karger, op cit supra at 222 n. 54. Furthermore, a modification has been held to include one involving any change, no matter how trivial, in the order or judgment of the court below (see id. at 221 & nn. 52–53) and even one which is beneficial to the appellant. See id. at 222–23 & nn. 56–58. These results are unsound. The theory of jurisdiction based on a dissent, reversal or modification is that the Court should review questions whose debatable nature is objectively demonstrated by disagreement among the judges below. It is not implemented by review of cases in which such disagreement concerns only matters which the appellant does not or cannot seek to have reviewed or which the Court has no power to review. This subdivision requires that the dissent, reversal or modification concern an aspect of the case by which the appellant is aggrieved and which is within the Court’s jurisdiction to review. The burden of deciding whether these requirements are met will be small, since inquiry whether and how appellant is aggrieved and whether the Court has jurisdiction must be made in every case. In any event, this burden is surely outweighed by that of the many pointless appeals as of right under the former provisions. The main importance of the additional limitation where a modification is involved, that it be “in a substantial respect,” is to exclude obviously trivial modifications, such as those involving merely a change in the wording of an order or judgment without affecting its substance. Both this subdivision and former § 588 require that the Appellate Division order “directs” a reversal or modification “of the judgment or order appealed from,” while the language of the Constitution is that the Appellate Division order be “one of reversal or modification.” This variation was first added to the statute in 1942, to abrogate decisions holding that where the Appellate Division reinstated a jury verdict, upon reversing an order of the trial court setting aside the verdict and ordering a new trial, the judgment entered on the Appellate Division’s order was one of affirmance and not reversal. See 7 NY Jud Council Rep 503–504 (1941); 8 id. at 423 (1942). The Court has held the statutory language constitutional and given it the intended effect (see Cohen & Karger, op cit supra at 219–220); accordingly, it has been retained.

Subd (b) of this section retains the language of the Constitution and of former § 588 defining the two situations where appeal as of right is authorized on constitutional grounds, since a considerable body of case law and many fine points of interpretation have developed around that language. See, generally, Cohen & Karger, Powers of the New York Court of Appeals 248–276 (rev ed 1952); Buchsbaum, Appeal as of Right to the New York Court of Appeals on Constitutional Grounds, 24 NYU LQ Rev 158 (1949). The former provision for direct appeal from lower courts was somewhat ambiguous. The reference to a judgment or order of a court “of original jurisdiction” could be taken to authorize appeal from a determination of a County Court on appeal from a lower court, since County Courts possess original jurisdiction. It is probably intended to apply, however, only to direct appeal from the court of original instance. Cf. Cohen & Karger, op cit supra at 245 n. 39.

Subd (c) of this section replaces CPA § 588(3). The Court of Appeals has held that stipulation for judgment absolute is the exclusive method of appeal from an Appellate Division order granting a new trial or hearing in an action. The stipulation is regarded as a condition precedent, prescribed by the Constitution and statute for every case of appeal from such an order; consequently, the Appellate Division has no power to grant permission as it has with respect to all other intermediate orders. Former §§ 588(3) and 589(1)(a) (the latter dealing with intermediate orders appealable by permission of the Appellate Division) did not indicate that stipulation for judgment or order absolute was the exclusive method of appeal from orders granting a new trial or hearing. This subdivision codifies the case law by excepting such orders from the intermediate orders appealable by permission of the Appellate Division under § 5602(b)(1). Both the present and the former provisions vary from the constitutional language in that they specify an Appellate Division order affirming the granting of a new trial or hearing as well as an order itself granting one. This addition was made in 1942 to codify a rule previously established by case law. See 8 NY Jud Council Rep 424 (1942); Cohen & Karger, Powers of the New York Court of Appeals 279 n. 6 (rev ed 1952). The provision applies to the grant of a partial new trial or hearing (see Cohen & Karger, op cit supra at 285–86) but it does not apply to an Appellate Division order directing a trial or hearing to be held for the first time; appeal from such an order would lie, as from any other nonfinal order, only by permission of the Appellate Division on certified questions. See id at 283–84. The final clause of former § 588(3), beginning “and upon such appeal the court of appeals shall affirm,” is omitted. It is covered by § 5615 governing the Court’s practice on an appeal by stipulation.

Subd (d) of this section replaces CPA § 588(2) and part of § 590. It extends the scope of those statutes, formerly limited to interlocutory orders and orders denying a new trial, to include all nonfinal determinations of the Appellate Division that necessarily affect the final judgment. The former statutes covered two important areas of the Court’s jurisdiction that were not explicitly provided for in the Constitution. First, § 590 allowed a direct appeal to the Court of Appeals from a final order or judgment of the court of original instance after the Appellate Division had made an interlocutory order or had denied a new trial. The appeal lay as of right if the interlocutory Appellate Division order involved a dissent, reversal, modification or constitutional question. If this requirement could not be satisfied an appeal might have been allowed by permission. See CPA § 590; proposed §§ 5602(a)(1)(ii), 5602(b)(2)(ii). The provision is unquestionably a useful one. The interlocutory decision of the Appellate Division will usually have involved the only debatable questions in the case, and where this is so it would be a useless and time-consuming formality to require the appellant to go through the Appellate Division again for review of the subsequent proceedings. Under this procedure, he is allowed to appeal directly to the Court of Appeals from the final judgment of the lower court if he is willing to waive review of the subsequent lower court proceedings. If he wishes review of the subsequent proceedings, he must first appeal to the Appellate Division again in the ordinary way. If he then appeals to the Court of Appeals from the second Appellate Division determination, review of the prior interlocutory order may be had under former § 580 (§ 5501(a)) as on any other appeal, for an interlocutory decision is one which “necessarily affects” the final judgment. A second important area of the Court’s jurisdiction was covered by the final clause of former § 588(2), which was enacted in 1942. See 7 NY Jud Council Rep 502–503 (1941); 8 id. at 423 (1942); Cohen & Karger, Powers of the New York Court of Appeals 238–241 (rev ed 1952). Prior to that amendment, if an appellant chose, under the predecessor of former § 590, the alternative procedure of appealing again to the Appellate Division for review of the lower court proceedings subsequent to its interlocutory determination, and then sought to appeal to the Court of Appeals, appealability was decided by the characteristics of the second Appellate Division determination rather than by those of its prior interlocutory order; if this was a unanimous affirmance, the appeal as of right was lost. The 1942 addition preserved the appeal as of right where the appellant would have had it if he had appealed directly from the lower court to the Court of Appeals—i.e., it provided in effect that appeal as of right from the subsequent Appellate Division order depended on whether its prior determination involved a dissent, reversal, modification or constitutional question. Both provisions were formerly limited in their application to “interlocutory” determinations of the Appellate Division (apart from denials of a new trial), thus depending upon a distinction between interlocutory and other nonfinal orders which was not subject to precise definition but was nevertheless strongly embedded in appeals practice. An interlocutory decision is commonly defined as one which substantially determines the rights of the parties but leaves something to be done;

the remaining proceedings usually involve the relief to be granted, as where damages must be ascertained or an accounting had. See Cambridge Valley Nat. Bank v Lynch, 76 NY 514, 516 (1879); Cohen & Karger, op cit supra at 65–70, 314–320, 329–333; cf. CPA § 447. This subdivision goes further and encompasses all nonfinal orders of the Appellate Division that necessarily affect the final judgment. The major importance of the change is in the area of appeals from the second, or final, Appellate Division order. The basic theory underlying Court of Appeals jurisdiction is that a dissent, reversal or modification affords sufficient objective evidence of a difficult question to warrant appeal as of right. That objective evidence is the same whether it appears in a final Appellate Division decision, one involving an interlocutory order specified in former § 590, or one involving any other nonfinal order that “necessarily affects” the final judgment. All three should stand on the same footing; appeal as of right should not be denied because of a unanimous affirmance on a second appeal to the Appellate Division in which only the subsequent lower court proceedings were reviewed. See Cohen & Karger, op cit supra at 241–42. The 1942 amendment achieved this result where the prior Appellate Division order was an interlocutory one; but that it was so limited seems only a fortuitous result of the concern of the revisors about cases that had hampered the usefulness of former § 590. Indeed, the need for the remedy is even greater in the case of other nonfinal orders which involve a dissent, reversal or modification: where the determination was interlocutory, the appellant at least had the choice of obtaining a review by by-passing the Appellate Division and appealing directly to the Court of Appeals under former § 590; where it was not interlocutory, he must first, under former law, have appealed again to the Appellate Division and if this resulted in a unanimous affirmance the prior Appellate Division order would never have been reviewed as of right. This subdivision also extends the direct appeal procedure of former § 590 to all nonfinal orders that necessarily affect the final judgment. No reason for the former limitation to interlocutory orders is perceived, although the direct appeal alternative would probably not be used as often where a different kind of nonfinal order is involved. Appellants would more often be willing to waive review of the subsequent lower court proceedings in the case of interlocutory orders, since such orders usually determine the substantial issues in the case. Nevertheless, there are cases where a nonfinal order of the Appellate Division which is not interlocutory involves the only debatable questions and appellants should be given the choice of direct appeal from the lower court. Where exercised, this option would lighten the Appellate Division’s workload. Furthermore, if appeal as of right from the final Appellate Division order depends upon the nature of its nonfinal order—as proposed in this draft—the allowance of direct appeals would not increase the work of the Court of Appeals, since the cases where direct appeal is allowed would be appealable to it in any event. The change is limited to nonfinal orders that “necessarily affect” the final decision, since such orders would warrant reversal by the Court of Appeals if it disagreed with the Appellate Division. The “necessarily affect” standard is one with which the Court is familiar, for it governed the reviewability of orders on appeal from a final determination under former § 580 (§ 5501(a)). Review in the Court of Appeals, on any appeal authorized by this subdivision, is limited to the nonfinal Appellate Division order. See § 5501(b). On a direct appeal from the lower court, this limitation was the condition imposed by former § 590 for by-passing the Appellate Division. On an appeal as of right from a subsequent unanimous affirmance by the Appellate Division, its prior order is the only one which involved disagreement and which warrants review. These are the only situations to which the limitation applies. If the subsequent final Appellate Division order is independently appealable as of right by virtue of a dissent, reversal, modification or constitutional question, or if appeal from it is taken by permission, the appeal would be authorized by either this section or § 5602 and the limitation on review of § 5501(b) is inapplicable. Despite the general rule that the constitutional grant of jurisdiction may not be enlarged, the Court has sustained the former provisions dealing with interlocutory orders against constitutional attack. See Gambold v MacLean, 254 NY 357, 359–360, 173 NE 220, 222 (1930); Cohen & Karger, op cit supra at 314. There is no reason to suspect that the Court would distinguish interlocutory from other nonfinal orders for constitutional purposes. Cf. Cohen & Karger, op cit supra at 241–42. The lengthy proviso of former § 590(b) is covered by subparagraph 1 of § 5701(a) and § 5611.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1967, ch 342; L 1969, ch 999; L 1973, ch 95, eff March 20, 1973, retroactive and deemed to have been in full force and effect from and after March 1, 1973; L 1985, ch 300, § 1, eff Jan 1, 1986; L 1986, ch 316, § 1, eff Jan 1, 1987.