§ 5701.Appeals to appellate division from supreme and county courts.

(See also Advisory Committee notes preceding this section, under subheading “Appeals from Supreme Court and County Court.”).

Appeals to the Appellate Division in actions originating in the Supreme Court or a County Court were formerly covered by CPA §§ 608, 609, 611 and 622(1), while special proceedings were separately covered in § 631.

An initial reading of those sections seems to indicate that a substantial difference exists between appeals in actions and in special proceedings and that separate treatment is therefore warranted. The only criterion that determines whether an appeal may be taken from an order in a special proceeding is whether the order is one “affecting a substantial right.” This criterion was only one of several which governed the right to appeal from orders in an action under former § 609. Moreover, the special proceeding provision did not expressly cover final or interlocutory determinations, as former §§ 608 and 611 did for appeals in an action. A study of the manner in which the courts have interpreted the common criterion of “affecting a substantial right,” however, makes it clear that if any difference did exist, it was a slight one. Those words are so broadly construed that they probably include all the more specific criteria listed in former § 609; consequently, it is difficult to conceive of any order appealable under that section which could not also have been appealed as “affecting a substantial right” under former § 631. Similarly, since any final or interlocutory order made in a special proceeding is one necessarily “affecting a substantial right,” it was appealable under former § 631 just as a final or interlocutory judgment in an action was under former §§ 608 or 611. See People v New York Central R.R., 29 NY 418 (1864); 9 Carmody-Wait, Cyclopedia of New York Practice 492–514 (1954). It appears, therefore, that using the same criteria for appeals in actions and special proceedings does not change former law.

The new formulation, also without substantially changing former law, treats Supreme Court appeals in the same way as those from County Courts. Cf. CPA §§ 622(1), 631(2).

The limitation imposed in subparagraphs 1 and 2 of former § 631, that the special proceeding must have been instituted “pursuant to a special statutory provision” has been omitted. A person who is entitled to institute a special proceeding should have the same rights of appeal whether the proceeding is instituted “pursuant to a special statutory provision” or not. These words were given effect by the Appellate Division in Matter of Bancroft, 276 App Div 485, 96 NYS2d 109 (4th Dep’t 1950). It was there held that an order made by a County Court in a special proceeding instituted in that court, but not instituted “pursuant to a special statutory provision,” was not appealable under subparagraph 2 of former § 631. The proceeding had been instituted by a guardian ad litem to secure a court order vacating its previous order approving a filiation agreement. The case was cited with approval by the Court of Appeals in Matter of Ryan, 306 NY 11, 114 NE2d 183 (1953), and used to support an alternative holding that an order refusing to vacate three subpoenas duces tecum was not appealable under former § 631(2) because the motion did not institute a special proceeding “pursuant to a special statutory provision.” No other reported case has been found which sheds light upon the meaning of this limitation. Cf. Matter of Reardon, 278 App Div 206, 104 NYS2d 414 (2d Dep’t 1951).

The omission of the limiting words, however, would not necessarily change the result of the Bancroft case because the court stated in its opinion that the guardian lacked legal capacity to institute the special proceeding. It would thus seem that the dismissal of the appeal was proper, but that the decision should rather have been placed upon the ground that the guardian was not an “aggrieved party” within the meaning of CPA § 557, since he was not entitled to maintain the proceeding which culminated in the order.

Moreover, examination of the earlier statutory provisions from which subparagraphs 1 and 2 of former § 631 were ultimately derived casts doubt upon the court’s interpretation of the “pursuant to a special statutory provision” limitation, and indicates that it may have been intended to apply only to proceedings instituted before a justice rather than before a court. These provisions were taken from § 1356 and 1357 of the Code of Civil Procedure, which provided as follows:

Section 1356. Appeal from order made in the same court.—An appeal may be taken, to the appellate division of the supreme court, from an order, affecting a substantial right, made in a special proceeding, at a special term or a trial term of the supreme court; or made by a justice thereof in a special proceeding instituted before him, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before him.

Section 1357. Idem; when made by another court or judge.—An appeal may also be taken to the appellate division of the supreme court, from an order, affecting a substantial right, made by a court of record, possessing original jurisdiction or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before, the judge who made the final order. But this section does not apply to a case where an appeal from the order to a court other than the appellate division of the supreme court is expressly given by statute.

The wording of these sections is the same as that of subparagraphs 1 and 2 of former § 631, and the only change made in transposing them to the civil practice act was the elimination of all semicolons and their replacement by commas. It is difficult to believe that this was intended to effect a change in meaning. See Gilbert-Bliss, Civil Practice Act of New York Annotated § 631, editorial note (1943). It is apparent, however, at least with respect to § 1356, that the elimination of the semicolons did create an ambiguity which was not present in the earlier section, since the semicolons strongly indicated that the words “pursuant to a special statutory provision” referred only to a special proceeding instituted before a justice of the Special or Trial Term of the Supreme Court. There could have been no reason for differentiating between the treatment of appeals under §§ 1356 and 1357; the different wording and punctuation of § 1357 seems only a result of inartistic draftsmanship.

This inference is strengthened by the fact that still earlier appeals provisions relating to special proceedings, which did not cover proceedings instituted before a justice rather than a court did not contain the “pursuant to a special statutory provision” language. See Laws 1848, c. 379, § 11(2); Laws 1854, c. 270, § 1; Code Civ Proc § 344. Since the quoted language was enacted at the same time as the extension to proceedings instituted before a justice, it seems likely that the words were meant to relate only to proceedings before a justice. An editorial note to the Code, stating that § 1356 was not intended to limit appeals from special proceedings in the Supreme Court, points to the same conclusion. See Bliss, New York Annotated Code § 1357, editorial note (1877). If this is true, the omission of the words “pursuant to a special statutory provision” in the new provision would not alter the intended meaning of subdivisions 1 and 2 of former § 631 with regard to court orders but only with regard to justice’s orders. No decisions applying them to proceedings before a justice have been found, and no reason for retaining such a distinction is perceived.

The specific references in former §§ 608, 609, 611 and 631 to trial by a jury, the court without a jury, or a referee have been omitted. The phrase “originating in the supreme court or a county court” covers all these situations, is more concise, and emphasizes that the important fact governing the appeal is the court in which the case originates rather than the manner in which it is heard. These words also cover the reference in former § 631 to transferred cases and, consequently, that reference has been omitted.

The provisions of this section effect a substantial change in the area of appeals from nonfinal orders. It is generally recognized that the former New York provisions allowing appeal as of right from almost every kind of intermediate determination (CPA §§ 609(3), 609(4), 631) were a prime source of delay and expense in litigation. They represented an extreme position among American jurisdictions in allowing appeals from such determinations. See La Buy v Howes Leather Co. 352 US 249, 268 (1957) (dissenting opinion; citing CPA § 609 as an “extreme example”); Mottolese v Kaufman, 176 F2d 301 (2d Cir. 1949). Indeed, the former procedure encouraged the practice of taking intermediate appeals rather than appeals from the final judgment, since the provision prescribing which orders might have been reviewed on appeal from the final judgment (CPA § 580) specified only orders which “necessarily affect the final judgment,” a narrower test than that of the provisions which governed intermediate appeals; consequently, many orders could never have been reviewed unless reviewed immediately.

The permissive appeal procedure of subd (c) is patterned after § 5602(a), relating to permissive appeals to the Court of Appeals. It parallels the approach adopted in many recently enacted city court acts of the state. See e.g., Laws 1955, c. 718, § 34; Laws 1953, c. 811, § 29; see also Notes, 50 Colum L Rev 1102, 1109–13 (1957), 58 Yale LJ 1186–92 (1949), 15 So Calif L Rev 504, 511–13 (1942). It is anticipated that a motion for permission to appeal made to the Appellate Division would be assigned to a single justice so that there should be no great burden on that court. The advisory committee rejected the alternative of putting the power to grant permission solely in the hands of the judge of the lower court because of the possible lack of uniformity and the temptation to refuse permission in order to avoid reversal. Placing power solely in the appellate court (see NJ R Civ P 2:2-3) loses the benefit of the original judge’s intimate knowledge of the case.

Subd (a) of this section of intermediate appeals, is substantially the same as former § 609 of the Civil Practice Act—which was broader than that of other American jurisdictions in authorizing intermediate appeals—but is subjected to the requirement of obtaining permission in the four types of cases specified in subdivision (b). The Committee feels that a proper approach is to exclude from the former broad formulation those orders for which permission should be required, rather than to attempt to list all those which should be appealable as of right. This approach permits attention to be focused on the appeals which experience has shown are often dilatory and burdensome, and for which permission should consequently be required, without the risk of improvidently abolishing appeal as of right in other areas by failing to enumerate them particularly. The orders which the Committee presently believes should be appealable only by permission are thus listed in paragraphs 2, 3, and 4 of subd (b). In almost all instances it is desirable that the matters listed be determined quickly and decisively so that the litigation can move on. If the experience of the Judicial Conference should subsequently indicate that other types of orders should be added to this list, they may be added by amendment to the statute.

Paragraph 1 of subd (b) had its source in CPA § 1304. This provision limits appeals from intermediate orders in proceedings against a body or officer. Under CPA § 1304, only the court which determined the proceeding— normally special term—could grant leave to appeal. By integrating it with other appeals provisions, the possibility of obtaining an appeal have been somewhat liberalized since under subd (c) permission can be granted by a justice of the Appellate Division as well as by the lower court judge.

The Committee, in response to a suggestion from the Suffolk County Bar Association, recommends the amendment of CPLR 2221 and 5701(a)(2) to clarify confusing provisions of law governing motions addressed to prior orders.

Currently, the law governing motions to reargue and renew is based primarily on court decisions, which address the area piecemeal and do not provide a coherent structure for the treatment of these motions. There is much confusion among bench and bar as to the nature of these motions, their purpose, when they are appropriate and when appeals can be taken. The Committee recommends that the CPLR contain provisions to govern these motions that will distinguish clearly between motions for leave to reargue and leave to renew, and that will specify time limitations for the making of these motions and rights of appeal. See also, Pahl Equipment Corp. v. Kassis 182 A.D.2d 22 (1st Dept. 1992); Schneider v. Solowey, 141 A.D.2d 813 (2d Dept. 1988) This measure would implement its recommendation.

Previously, the Committee’s recommendations included changes to CPLR 2221 requiring motions to renew and to reargue to be assigned to the judge who determined the prior order. Various groups expressed their concern that such language might conflict with judicial assignment practices around the state.

This year the Advisory Committee has decided to eliminate any change in the current language of Rule 2221 relating to the judge to whom such motions are made. This modified proposal sets forth only the parameters of motions to reargue and renew in the trial court context, what they are, when they are appropriate, and the proper time frames for their use. Last year’s proposal has also been amended to make the bill effective immediately upon its passage.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1999, ch 281, § 2, eff July 20, 1999.