The court of appeals, upon reversing or modifying a determination of the appellate division, when it appears or must be presumed that questions of fact were not considered by the appellate division, shall remit the case to that court for determination of questions of fact raised in the appellate division.
§ 5613.Disposition upon reversal or modification.
Article 56. Appeals to the Court of Appeals · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 5613 requires the Court of Appeals, when it reverses or modifies an Appellate Division determination and fact questions were not, or must be presumed not to have been, considered, to send the case back to the Appellate Division to decide those fact questions.
Full Text of CPLR 5613
Plain-English Summary
The Court of Appeals doesn't find facts; that's the Appellate Division's job. CPLR 5613 keeps that division of labor intact when the Court of Appeals reverses or modifies what the Appellate Division decided.
If it's clear, or must be presumed under CPLR 5612, that the Appellate Division never reached certain fact questions raised on the appeal before it, the Court of Appeals doesn't resolve those questions itself. Instead, it remits the case, sends it back, to the Appellate Division so that court can determine the fact questions the Court of Appeals's ruling on the law has now made necessary to decide.
The result is a two-step process for cases in this posture: the Court of Appeals settles the legal question, and the Appellate Division, on remand, handles what remains of the facts.
Frequently Asked Questions
What does it mean when the Court of Appeals 'remits' a case?
It sends the case back to the Appellate Division to decide fact questions the Court of Appeals didn't resolve, rather than deciding those facts itself.
When does CPLR 5613 apply?
When the Court of Appeals reverses or modifies an Appellate Division determination and it appears, or must be presumed under CPLR 5612, that the Appellate Division never considered certain fact questions raised in the appeal.
Does the Court of Appeals ever decide facts on appeal?
CPLR 5613 assumes it doesn't. When fact questions remain unresolved, the case goes back to the Appellate Division rather than being decided at the Court of Appeals.
What happens to a case after it's remitted under CPLR 5613?
The Appellate Division determines the outstanding fact questions raised in the appeal before it, applying the Court of Appeals's ruling on the law.
How does CPLR 5613 relate to CPLR 5612?
CPLR 5612 sets the presumption that triggers CPLR 5613. Once the Court of Appeals presumes fact questions weren't considered, CPLR 5613 requires it to remit the case for the Appellate Division to consider them.
Advisory Committee Notes
This section is derived from CPA § 606. CPA § 606 was enacted to implement former §§ 602 through 604 and to prevent the Court of Appeals, upon reversal or modification, from rendering a final determination when questions of fact in the case have not been considered by the Appellate Division. See 8 NY Jud Council Rep 436 (1942).
The Court of Appeals, upon reversing a determination of the Appellate Division which reversed the determination of the court of original instance, may reinstate the latter only if (1) the original judgment or order is correct as a matter of law without regard to any question of fact or discretion, or (2) the findings of fact made below have been affirmed by the Appellate Division, or (3) the Appellate Division makes new findings of fact which the Court of Appeals reviews with the original findings of fact and the Court of Appeals agrees with the original findings. See Cohen & Karger, Powers of the New York Court of Appeals 566 (rev ed 1952). When the Court of Appeals reverses a determination of the Appellate Division but does not finally dispose of the case it may direct a new trial or hearing or remit to the Appellate Division for further proceedings. On its face, § 606 directs a remission to the Appellate Division.
Two changes have been made in former § 606. The words “were not affirmed or considered” have been altered to “were not considered,” since findings of fact that “were not considered” could not have been affirmed. Finally, the word “the” before “questions of fact” (“findings of fact” in former § 606) has been omitted. It has been suggested that the use of this word created an inference that “all the questions of fact must have been by-passed by the Appellate Division” before § 606 would have been operative. See Cohen & Karger, op cit supra at 575. Its omission is intended to make it clear that a remission may be made if one or more but less than all the questions of fact are “by-passed.” Remission in such a situation is in accord with former Court of Appeals practice when a material issue of fact has not yet been reviewed by the Appellate Division. Ibid.
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: Court of Appeals remit caseremand to appellate division for factsreversal remitted for fact findings5613 disposition