When an appeal to the appellate division presented questions of fact and a further appeal is taken pursuant to subdivision (c) of section 5601, or subparagraph (iii) of paragraph two of subdivision (b) of section 5602, the court of appeals shall affirm the order appealed from and shall render judgment or order absolute against the appellant unless the order or opinion of the appellate division recites either that the questions of fact have not been considered or that the court has considered the questions of fact and has determined that it would not grant a new trial or hearing upon those questions.
§ 5615.Disposition upon appeal from order granting new trial or hearing.
Article 56. Appeals to the Court of Appeals · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 5615 requires the Court of Appeals to affirm and enter judgment absolute against an appellant who took a judgment-absolute appeal from a new-trial order, unless the Appellate Division's order or opinion shows it didn't consider the fact questions, or considered them and would still deny a new trial.
Full Text of CPLR 5615
Plain-English Summary
CPLR 5601(c) and 5602(b)(2)(iii) let a party appeal an order for a new trial or hearing right away, on the condition that, if the Court of Appeals affirms, judgment absolute is entered against the appellant instead of sending the case back for that new trial. CPLR 5615 spells out how the Court of Appeals handles that kind of appeal when the earlier Appellate Division appeal raised questions of fact.
The default outcome is affirmance and judgment absolute against the appellant. That default gives way only if the Appellate Division's order or opinion says one of two things: either that it never considered the fact questions at all, or that it considered them and decided, even so, that it wouldn't grant a new trial or hearing on them.
In effect, the stipulation trades a chance at a new trial for a quicker path to the Court of Appeals, and CPLR 5615 makes sure that trade doesn't quietly erase fact questions the Appellate Division never reached.
Frequently Asked Questions
What is 'judgment absolute' in a New York appeal?
It's the result entered against an appellant when the Court of Appeals affirms an order for a new trial, after the appellant stipulated to accept that outcome instead of getting the new trial.
When does CPLR 5615 apply?
When an Appellate Division appeal presented fact questions and a further appeal is taken under CPLR 5601(c) or 5602(b)(2)(iii), the judgment-absolute stipulation routes.
Can the Court of Appeals avoid entering judgment absolute under CPLR 5615?
Only if the Appellate Division's order or opinion states the fact questions weren't considered, or that it considered them and would still deny a new trial.
Why would a party stipulate to judgment absolute?
To get a faster route to the Court of Appeals on an order for a new trial, accepting judgment against them if the Court of Appeals affirms rather than waiting for a retrial.
How does CPLR 5615 relate to CPLR 5601 and 5602?
Those sections create the as-of-right and by-permission paths for judgment-absolute stipulation appeals. CPLR 5615 governs how the Court of Appeals must dispose of the appeal once it gets there.
Advisory Committee Notes
This section is taken from former CPA § 604, which was added in 1942 (Laws 1942, c 297) in order to alert the practitioner to the fact that on an appeal from an order of the Appellate Division granting a new trial or affirming the granting of a new trial, the Court of Appeals can only review questions of law and that the appellant will automatically suffer judgment absolute against himself if there is a question of fact in the case. See 8 NY Jud Council Rep 434–35 (1942); Cohen & Karger, Powers of the New York Court of Appeals 294–99 (rev ed 1952). The words “or hearing” were added in 1944 to cover special proceedings. Laws 1944, c 528. They are retained in the new appeals provisions to emphasize that they are generally applicable to actions and proceedings, although the word “trial” is used elsewhere in the new provisions to include a “hearing.” This section is not intended to make any change in existing law except to the extent that the recitals in an opinion as to questions of fact may be considered despite the fact that the order does not refer to the opinion. Under former law it appeared that recitals in the opinion could only be considered if the opinion was incorporated by reference in the order. See Cohen & Karger, op cit supra at 298. The opening phrase of this section restricting it to cases where questions of fact were presented to the Appellate Division is clearer than the proviso in the last clause of former § 604. Both formulations are designed to indicate what is obvious on reflection, viz.: the Appellate Division’s failure to indicate that it decided the case as a matter of law does not prevent an appeal by stipulation for judgment absolute if it is clear that questions of law were presented to the Appellate Division.
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: judgment absolute appeal New Yorkstipulate judgment absolute new trial appealCourt of Appeals new trial order appeal5615 disposition