II. MOTIONS FOR LEAVE TO APPEAL

A. Certiorari Jurisdiction

Effective January 1, 1986, CPLR 5601 was amended to eliminate some traditional grounds for appeals as of right to the Court of Appeals in favor of a greater certiorari jurisdiction. Now, all civil appeals are heard by permission of the Appellate Division or the Court of Appeals except where a constitutional question is directly involved (see, CPLR 5601[b]), where two Justices at the Appellate Division dissented on a question of law (CPLR 5601[a]) or in the limited circumstance prescribed for an appeal by stipulation for judgment absolute (CPLR 5601[c]). In 2006, 54 of the 127 (43%) civil appeals before the Court were there by its own leave.

B. What is a Motion for Leave?

More than a brief on the merits with a notice of motion, it is the opportunity for counsel to convince the Court that their case is worthy of the Court's time and scarce judicial resources. Motions for leave to appeal are randomly assigned to each of the Judges to report, in writing, to the Court as a body.

All motions for leave are conferenced and voted on by all the Judges of the Court. Leave to appeal will be granted upon the concurrence of two Judges (CPLR 5602[a]).


C. Statutory Requirements -- Jurisdictional Predicates

1. Motions for Leave To Appeal from Final Appellate Division Orders -- CPLR 5602(a)(1)(i)

CPLR 5602(a)(1)(i) allows a litigant to seek leave to appeal from a final Appellate Division order entered in an action originating in the Supreme Court, a County Court, a Surrogate’s Court, the Family Court, the Court of Claims, an administrative agency, or an arbitration. This is by far the most common jurisdictional predicate for a motion for leave. Note that an appeal from a final Appellate Division order brings up for review prior nonfinal orders and judgments that necessarily affect the final order (see, CPLR 5501[a]; see also, Sections V-C and VII of this outline).

2. Motions for Leave To Appeal To Obtain Review of Prior Nonfinal Orders Only -- CPLR 5602(a)(1)(ii)

CPLR 5602(a)(1)(ii) allows a litigant to by-pass a second appeal to the Appellate Division when the movant only seeks review of the Appellate Division's prior nonfinal order and not the subsequent final order made by the nisi prius court after the Appellate Division's remittal. CPLR 5602(a)(1)(ii) is the parallel to CPLR 5601(d), which applies to appeals as of right. In order for a motion seeking leave to appeal pursuant to CPLR 5602(a)(1)(ii) to lie, the following requirements must be met:

a. The judgment sought to be appealed from must be a final judgment. The parties cannot simply enter a "nonfinal" judgment on the Appellate Division order (Burnside Coal & Oil v City of New York, lv dismissed 73 NY2d 852). The Court has deemed a stipulation between the parties finally resolving all remaining claims a judgment to allow a motion for leave to appeal pursuant to CPLR 5602(a)(1)(ii) (Voorheesville Gun Club v E.W. Tompkins Co., 82 NY2d 564, 568).

Where the "final" judgment or order on which the motion or appeal is predicated is based on a stipulation between the parties concerning damages, the Court will check the stipulation to make sure it is not illusory or conditional (see Udell v New York News, lv dismissed 70 NY2d 745 [where stipulation expressly provided that it could not be construed as a concession by plaintiff that damages were limited to any amount, stipulation was deemed illusory and motion was dismissed for nonfinality]; Costanza Constr. Co. v City of Rochester, appeal dismissed 83 NY2d 950, 951 [dismissal of counterclaims only conditional]).

b. The prior nonfinal Appellate Division order must “necessarily affect” the final order or judgment. For a detailed discussion of the “necessarily affects” requirement, see Section VII, infra.


3. Motions for Leave To Appeal from Nonfinal Orders -- CPLR 5602(a)(2) -- Administrative Context

CPLR 5602(a)(2) allows a motion for leave to appeal from a nonfinal Appellate Division order in "a proceeding instituted by or against one or more public officers or a board, commission or other body of public officers or a court or tribunal."

a. By its terms, this section only applies to motions for leave to appeal (compare, language of CPLR 5601 with CPLR 5602). Moreover, the section only applies to proceedings, not to actions (John T. Brady & Co. v City of New York, lv dismissed 56 NY2d 711).

b. The remittal must be to the agency and not to (1) a lower court, or (2) a lower court and an agency (see, Matter of Golf v New York State Dept. of Social Servs., lv dismissed 88 NY2d 960).

c. The public body must be participating in the litigation as an adjudicatory or administrative body. If the body participating is in the capacity of any other litigant, prosecuting or defending a claim before an adjudicatory tribunal, CPLR 5602(a)(2) will not apply (Matter of F.J. Zeronda, Inc. v Town of Halfmoon, 37 NY2d 198, 200-201).

d. Any party to a proceeding which comes within the ambit of CPLR 5602(a)(2) may benefit from the section (Matter of F.J. Zeronda, Inc., supra, at 201 n *).

e. In Workers' Compensation Board cases, review by the Appellate Division is by appeal, so there is no proceeding "instituted by or against" a public body and, thus, a nonfinal Appellate Division order is not appealable by permission pursuant to CPLR 5602(a)(2) (Matter of Marcera v Delco Prods., lv dismissed 88 NY2d 804). The same rule applies to unemployment insurance cases where review by the Appellate Division is by appeal under Labor Law § 624 (see, Matter of Caufield-Ori [Blumberg - Sweeney], 89 NY2d 982).

4. Motions for Leave To Appeal by Permission of the Appellate Division -- CPLR 5602(b)

Note that in addition to the statutory predicates discussed above, the Appellate Division can also grant leave to appeal from certain final and nonfinal orders as to which the Court of Appeals lacks constitutional and statutory power to grant leave. Consult CPLR 5602(b). However, the Appellate Division's authority to grant leave from a nonfnal order, where it certifies a question for Court of Appeals review, has limitations (see, CPLR 5602[b][1];Bryant v State of Ne york, 7 NY3d 732)

D. How to Move for Leave to Appeal -- Rule 500.22 Requirements

1. What the document should look like

A motion is made on a copy of the record or appendix used in the court below and an original and six copies of the moving papers. Two copies of the moving papers must be served on the adverse party. The moving papers shall be a single document bound on the left (22 NYCRR 500.1(d); 500.21[f]).

2. What should be addressed

a. Notice of return date (any non-holiday Monday, or next non-holiday business day following a Monday holiday) within the meaning of CPLR 5516, 8 [if papers served personally], 9 [if served by overnight delivery] or 13 [if papers served by mail] days after service of notice, whether or not the Court is in session) and relief requested.

b. Questions presented.

Counsel should note the statement of the Court that "if a party in its application for leave to appeal specifically limits the issues it seeks to have reviewed, it is bound by such limitation and may not raise additional issues on the appeal" (Quain v Buzzetta Constr. Corp., 69 NY2d 376).

c. Procedural history and timeliness chain (22 NYCRR 500.22(b)(2).

d. Jurisdiction (CPLR 5602).

e. Argument as to why leave should be granted.

f. A disclosure statement, if required (22 NYCRR 500.1[c]; 500.22[b][5]).

g . One copy of all relevant orders, judgments, opinions or memoranda, one copy of the record or appendix below and one copy of each party's briefs below .

E. Common Errors in Motions for Leave

1. Failure to provide proof of service

Without proof of service, the Court is unable to determine whether the motion is timely and what the appropriate return date should be. Proof should indicate service of two copies (22 NYCRR 500.22[a]).

2. Failure to establish timeliness chain

Rule 500.22(b)(2) requires a demonstration of the timeliness of the motion (CPLR 5513), including the timeliness of any prior motion in the Appellate Division for leave to appeal to the Court of Appeals, which extends the time to move in the Court of Appeals (CPLR 5514[a]). A failure to comply with this requirement can result in the dismissal of the motion for such defects (see, Horowitz v Incorporated Vil. of Roslyn, lv dismissed 74 NY2d 835).

a. The timeliness chain should be established in a short paragraph at the beginning of the motion papers which states: (a) each procedural step taken subsequent to the entry of the order from which leave to appeal is sought, (b) the dates all orders were entered and served by a party with notice of entry, and (c) the date the present motion was served. Note: (1) A motion for reargument only at the Appellate Division, which is denied, does not extend a party's time to move for leave to appeal to the Court of Appeals (Eaton v State of New York, lv dismissed 76 NY2d 824). Where a motion for reargument is granted, however, even though the original decision is adhered to, the time to appeal does run from the service with notice of entry of the order granting reargument (see, Karger, supra, § 75, at 462-463). (2) Where movant's prior motion for leave to appeal at Appellate Division was untimely, the motion for leave to appeal to this Court will be dismissed as untimely, even if made within 30 days after service with notice of entry of an Appellate Division order denying leave to appeal (Lehman v Piontkowski, lv dismissed 84 NY2d 890).

b. A motion must be served within 30 days (35 if service is by mail) of service by a party of the order or judgment sought to be appealed from and notice of entry (CPLR 5513[b]; 2103[b][2]; see Matter of Reynolds v Dustman, 1 NY3d 559 [2003] [describing what constitutes “notice of entry”]). Where service is by mailing, "within the state," service is complete upon deposit of the papers, properly addressed and stamped, in the mailbox (CPLR 2103[b][f][1]). Since the postmark date may be later than the date papers are deposited in the mail, the postmark on the envelope in which the Appellate Division order with notice of entry is served should not be used as the starting date for the 35-day period for seeking leave to appeal (see, Kings Park Classroom Teachers Assn. v Kings Park Central School Dist., 63 NY2d 742). However, if motion papers are mailed from outside the state, service is not complete until they are received by the adverse party (National Org. For Women v Metropolitan Life Ins. Co., lv dismissed 70 NY2d 939). Therefore, motion papers mailed from outside the state on the last day will not be timely served. The return date is determined by counting 8 days (9 if service is by overnight delivery; 13 if by mail) and taking the next available Monday. The return date need not come within the CPLR 5513(b) 30-day time limit.

Failure to move within the CPLR 5513(b) time period is a jurisdictional defect requiring dismissal (but cf., CPLR 5520[a] [providing Court with discretion to excuse late service or late filing if the other act -- service or filing -- is timely completed]). Moreover, failure to establish the timeliness chain may result in dismissal (see, Metzger v Metzger, lv dismissed 82 NY2d 735).

c. Counsel must be especially careful to keep the timeliness chain intact in the following scenario: where the Appellate Division reverses a judgment and orders a new trial on damages unless plaintiff stipulates to a reduced sum. The effect of such an order on the computation of timeliness depends on the precise language of the Appellate Division order (see, Whitfield v City of New York, 90 NY2d 777, 780-781). For example, where the Appellate Division reverses a judgment and orders a new trial on damages unless plaintiff stipulates to a reduced sum, that stipulation shall effectively be treated by the Court for timeliness concerns as the final judgment, and the appeal or motion for leave to appeal must be made to the Court within 30 days (or 35 days if served by mail) after the appellant or movant is served with the stipulation and written notice of entry (id.).

d. A party upon whom an adverse party has served a notice of appeal or motion for leave to appeal may serve its own motion for leave to appeal within 10 days (15 days if service was by mail) after service of the notice of appeal or motion by the adverse party, or within 30 days (35 days if service is by mail) after service of the Appellate Division order with written notice of entry, whichever is longer, if such motion is otherwise available (CPLR 5513[c]). If the adverse party had moved at the Appellate Division for leave to appeal to the Court of Appeals, the party relying on CPLR 5513(c) will not be timely unless that party also timely moved at the Appellate Division (511 W 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Capasso v Capasso, cross mot for lv dismissed 70 NY2d 988).
3. Failure to address finality

Rule 500.22(b)(3) requires a showing that the Court has jurisdiction of the motion and of the proposed appeal, including that the order sought to be appealed from is a final determination or comes within the special class of nonfinal orders which are appealable by permission of the Court of Appeals (CPLR 5602[a][2]). To show finality, the status of every claim, counterclaim, cross claim, or other request for relief pleaded in the action must be indicated. Any post-submission changes in status of such claims must promptly be reported to the Court (see Court of Appeals Notice to the Bar [9-19-89]; 22 NYCRR 500.6). A failure to comply with these requirements can result in the dismissal of the motion for such defects (see, Rose v Green, lv dismissed 74 NY2d 836).

To evaluate whether a particular order is final for purposes of Court of Appeals jurisdiction, see Section VI of this outline.

Many attorneys mistakenly assume that moving for leave to appeal is a way to cure finality problems. When moving for leave to appeal in the Court of Appeals, as opposed to the Appellate Division, this is absolutely wrong. Except for the limited circumstances authorized by CPLR 5602(a)(2), a motion seeking leave to appeal must be taken from a final determination (see, CPLR 5602[a][1]).

4. Failure to show where arguments are preserved in the record (see 22 NYCRR 500.22[b][4]; see also Section V-C of this outline).

5. Exclusive concentration on the merits of the substantive argument without adequately addressing why leave should be granted.

Arguing error below is not enough. The certiorari factors listed in Rule 500.22(b)(4) must be addressed. The primary function of the Court of Appeals is to decide legal issues of State-wide significance, not to correct error made in the Appellate Division. In 2006, for example, the Court of Appeals granted 61 of 1017 motions for leave to appeal dedcided - 6%.