(a) Appeal from Reversal or Modification. On an appeal from an order of the appellate division reversing, modifying or setting aside a determination and rendering a final or interlocutory determination, except when it reinstates a verdict, the court of appeals shall presume that questions of fact as to which no findings are made in the order or opinion of the appellate division were not considered by it, where such findings are required to be made by paragraph two of subdivision (b) of rule 5712.
§ 5612.Presumptions as to determinations of questions of fact.
Article 56. Appeals to the Court of Appeals · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 5612 tells the Court of Appeals what to presume about unresolved fact questions when it reviews an Appellate Division reversal or modification, and what to presume when it reviews an appeal on certified questions of law.
Full Text of CPLR 5612
(b) Appeal on Certified Questions of Law. On an appeal on certified questions of law, the court of appeals shall presume that questions of fact as to which no findings are made in the order granting permission to appeal or in the order appealed from or in the opinion of the appellate division were determined in favor of the party who is respondent in the court of appeals.
Plain-English Summary
The Court of Appeals generally reviews questions of law, not fact, so CPLR 5612 fills a gap: what should the court assume about fact questions that the Appellate Division's order or opinion never mentions?
Subdivision (a) covers appeals from an Appellate Division decision that reverses, modifies, or sets aside a lower determination and enters a new one, aside from an order that reinstates a verdict. If the findings required under CPLR 5712(b)(2) are missing from the Appellate Division's order or opinion, the Court of Appeals presumes the Appellate Division never considered those fact questions at all.
Subdivision (b) covers appeals on certified questions of law. There, if no findings appear in the order granting permission to appeal, the order under review, or the Appellate Division's opinion, the Court of Appeals presumes those fact questions were resolved in favor of whichever party is the respondent before the Court of Appeals.
Both presumptions let the Court of Appeals dispose of an appeal without guessing at what the Appellate Division decided on the facts, and they connect directly to what happens next under CPLR 5613 and 5614.
Frequently Asked Questions
What does the Court of Appeals presume about facts the Appellate Division didn't address?
It depends on the type of appeal. On a reversal or modification appeal, it presumes the Appellate Division never considered those fact questions. On a certified-question appeal, it presumes they were decided for the respondent.
Why does CPLR 5612 matter if the Court of Appeals only decides questions of law?
It sets default assumptions about unaddressed factual findings, so the Court of Appeals can resolve the appeal without sending every case back to ask the Appellate Division what it meant.
What triggers the presumption in CPLR 5612(a)?
It applies when the Appellate Division's order or opinion reversing, modifying, or setting aside a determination doesn't include the findings required by CPLR 5712(b)(2).
How does the certified-question presumption in CPLR 5612(b) work?
If no findings appear in the permission order, the order under review, or the Appellate Division's opinion, the fact questions are presumed decided in favor of the respondent at the Court of Appeals.
What happens after the Court of Appeals presumes facts weren't considered?
CPLR 5613 directs the Court of Appeals to remit the case to the Appellate Division so that court can determine the fact questions.
Advisory Committee Notes
This section is taken from parts of CPA §§ 602, 603 and 607 and operates in conjunction with §§ 5712 and 5713, which contain the remainder of former §§ 602 and 603. The first sentence of former § 607 is found in rule 5526 relating to the record on appeal. CPA §§ 602 and 603 have each been divided into two provisions under the new CPLR because each of those sections related to two distinct items: (a) the required content of certain orders of the Appellate Division, and (b) the presumption made by the Court of Appeals if the order does not meet these requirements. The former item is more appropriately placed in article 57 since it relates to Appellate Division practice, while the latter is more appropriately placed in this article, covering Court of Appeals practice.
Former § 607 permitted the Court of Appeals to look to the Appellate Division’s opinion for guidance on its findings of fact only when the opinion was referred to in an order of the Appellate Division. That order under former § 602 must have been an order of reversal or modification in a final or interlocutory determination and under former § 603 must have been an order granting permission to appeal on certified questions from a nonfinal determination. There is no need for the Court of Appeals to be so confined in discovering the Appellate Division’s disposition of questions of fact, when other official papers can be of assistance. An illustration of the inappropriateness of the former approach is the case of Rugg v State of New York, 278 App Div 216, 104 NYS2d 633 (3d Dept), revd 303 NY 361, 102 NE2d 697 (1951), where the opinion of the Appellate Division but not the order—which contained no reference to the opinion—specified the disposition of the questions of fact and the Court of Appeals remitted the case to the Appellate Division for the determination of the same questions of fact. The Court of Appeals has liberalized its practice under former § 603 to the extent possible by looking to the order appealed from as well as the order granting permission to appeal although only the latter is referred to in the former section. See Caulfield v Elmhurst Contracting Co. 294 NY 803, 62 NE2d 237 (1945). This section permits the court to look to any order of the Appellate Division and to its opinion.
The final clause of subd (a) takes account of the situations where no findings of fact need be made by the Appellate Division—i.e., where the appeal was either from a determination by the court without any statement of findings of fact or from a judgment entered on a general verdict.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: presumption fact questions Court of AppealsCourt of Appeals certified questions presumptionfact findings appellate division appeal5712 findings presumption