In 1985, CPLR 5601(a) was amended to narrow considerably the then existing grounds on which appeals could be taken as of right to the Court of Appeals. The amendment eliminated as grounds for an appeal as of right a reversal or modification respecting any part of the judgment or order appealed from, and it changed the unqualified prior requirement of one dissent to "a dissent by at least two justices on a question of law in favor of the party taking such appeal." Although reduced in number, such appeals as of right still form an important part of the Court's docket. In the year 2010, 21.2 percent of all civil appeals decided by the Court (29 out of 137) were appeals as of right whose jurisdictional predicate was two dissents in the Appellate Division.¹

Dissent Requirement

As the statute makes clear, it is not enough for two justices to dissent. In addition, the dissent (i) must be on a question of law, and (ii) it must be in favor of the party taking the appeal. Failure to meet these requirements will result in dismissal of the appeal. In Christovao v. Unisul-Uniao de Coop. Transf. de Tomate do sul do Tejo, S.C.R.L.,² the Court of Appeals stated that the history and purpose of the narrowing amendment to CPLR §5601 leads it "to view the statutory dissent requirement in a practical, not literal, sense.

"The ultimate measure of the substance of a minority viewpoint is not whether it articulates some agreement with the appellant's position, but, instead, whether the minority would have determined the appeal substantially in his favor. Only when the minority has given appellant the benefit of its vote, as well as the benefit of its views, may it be said that there is actual disagreement sufficient to indicate the existence of a debatable law issue."

In Christovao, plaintiff attempted to assert jurisdiction over the defendants and, through an attachment, over their property. Special Term ordered the complaint dismissed on the grounds that personal jurisdiction was lacking and, as to the remaining quasi-in rem jurisdiction, that New York was not a convenient forum for the resolution of this dispute.

The Appellate Division affirmed the order, with two justices dissenting. The dissent stated that objections to personal jurisdiction had been waived and that the complaint should have been dismissed solely for forum non conveniens. On the basis of this dissent, plaintiff appealed as of right to the Court of Appeals, which dismissed the appeal finding that "[i]t is apparent that the minority view was styled a dissent for technical reasons only. In actuality, the Appellate Division minority concurred in the result but on only one of two alternative grounds."³

Matter of Daniel H.,⁴ a juvenile delinquency proceeding, shows that it is not always easy for the practitioner to tell whether a dissent will be considered to be on a question of law. In that case, police arrested appellant at his school for the theft of credit cards after he had made an inculpatory statement without being advised of his Miranda rights. Appellant was transported to a precinct, left alone in an adult holding cell, and again questioned by the same detectives in a sergeant's office rather than a designated juvenile room. A written inculpatory statement was made by appellant after he and his mother were advised of their Miranda rights.

Following a hearing, the Family Court precluded appellant's inculpatory oral statement and denied the suppression of his subsequent, inculpatory written statement, finding that the written statement was sufficiently attenuated⁵ from the earlier oral statement. Appellant was adjudicated a juvenile delinquent. By a 3-2 decision, the Appellate Division affirmed the Family Court order, finding that the written statement was sufficiently attenuated from the earlier un-Mirandized statement. The dissenters would have remitted the action to Family Court for a new fact-finding hearing.

On the basis of the two dissents, appellant appealed to the Court of Appeals as of right pursuant to CPLR 5601(a). The majority dismissed his appeal on the ground that the "issue of whether a defendant's inculpatory statement is attenuated from his prior un-Mirandized statement presents a mixed question of law and fact. . . As the two-justice dissent was not on a question of law, this Court is without jurisdiction to decide the appeal."⁶

Judge Carmen Beauchamp Ciparick, joined by Chief Judge Jonathan Lippman, dissented on the ground that "[w]hether the courts below applied the correct standard in determining that Daniel's statement was attenuated is a legal question firmly within our jurisdiction (see People v. Borges, 69 NY2d 1031, 1033, 517 N.Y.S.2d 914 [1987] ["While questions of attenuation generally present mixed questions of law and fact, where. . .the lower courts have applied an incorrect legal standard, an issue of law reviewable by this court is presented." [internal citations omitted]).

The dissent disagreed about whether Daniel's age should inform the analysis, noting that although the facts here "may constitute a pronounced break in the case of an adult accused[, they] have different bearing on the determination with regard to a juvenile". . .). This is a straightforward disagreement regarding the legal standard—whether or not attenuation should be assessed differently in cases where the suspect is a juvenile— and so presents a question of law we can, and should, address."⁷

In Matter of Town of Islip,⁸ a condemnation case, the town acquired land, which at the time of taking was undeveloped but had been restrictively zoned residential by the town. The Supreme Court, after trial, found the property "unsuitable for residence use" and, while there was no reasonable probability that the town would have voluntarily rezoned the property upon application, the court also found that claimants, the former property owners, might have been able to obtain the same relief in a court action on the ground that the residential zoning deprived them of the reasonable use of the property. The court, therefore, awarded claimants an increment above, and in addition to, the land's residential value.

The Appellate Division affirmed with one dissent and dismissed claimants' cross appeal for failure to perfect in accordance with that court's rules. The dissenter in the Appellate Division took the position that there was no basis in the record for awarding the claimants any increment.

On the basis of the dissent,⁹ the town and the claimants cross-appealed as of right to the Court of Appeals. The town argued that claimants were not entitled to any increment, while the claimants argued that the amount of the increment should have been larger. Since the dissent was favorable only to the town, the Court of Appeals dismissed claimants' cross appeal, noting that for the purposes of its jurisdiction, the Appellate Division order of dismissal is treated as an affirmance and, therefore, subject to the requirements of CPLR 5601(a); the Appellate Division dissenter agreed that claimants' cross appeal should be dismissed. The principle derived from this case, that the dissent must be in favor of the party taking the appeal, should apply equally to the present "two dissent" formulation of the statute.

Non-Reviewable Matters

The Court of Appeals will also dismiss appeals taken as of right where the dissent relates only to matters that are not reviewable by the Court, as for example, weight of evidence,¹⁰ where there are affirmed findings of fact,¹¹ where the dissent is as to the inadequacy or excessiveness of a judgment or verdict or apportionment of liability,¹² exercise of discretion that does not rise to the level of an abuse of discretion as a matter of law,¹³ or an error that was not preserved for review because a timely objection was not made in the court below.¹⁴

Guaspari v. Gorsky,¹⁵ is a good illustration. The actions for wrongful death and personal injuries arose out of an accident which occurred when an automobile owned by defendant Chester Gorsky and operated by a thief collided with an automobile operated by plaintiff Richard Guaspari in which his wife and infant daughter were passengers. The actions against Gorsky were based upon his failure to comply with the provision of the Vehicle and Traffic Law, which states: "No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle." The Appellate Division, by a divided court (3-2), affirmed judgments entered on a verdict in favor of plaintiffs against Gorsky, and Gorsky appealed as of right under then CPLR §5601(a)(i).

The Court of Appeals dismissed the appeal "since neither of the dissents in the Appellate Division is on a stated question of law which would be reviewable in this court. Both dissents rest only on questions of fact or discretion not reviewable by this court, namely, whether the jury's verdict in plaintiffs' favor was against the weight of the evidence and whether the Appellate Division should have exercised its discretionary power to order a new trial in the interests of justice. The claimed error in the trial court's charge, to which reference is made in one of the dissents, does not present any reviewable question of law since no objection was taken thereto at the trial."¹⁶

Raising Other Points

When an appeal is taken pursuant to CPLR §5601(a), is the appellant limited to arguing for reversal or modification on only those questions of law on which the two dissenters in the Appellate division voted in its favor—or, once the Court of Appeals has jurisdiction, may the appellant raise any ground that has been preserved in the courts below and is reviewable by the Court of Appeals?

We know of no reported decision on point but, by analogy to the situation when leave to appeal has been granted, the appellant should be able to raise any point that has been preserved below and is reviewable by the Court of Appeals.

In Quain v. Buzzetta Construction Corp.,¹⁷ plaintiff Rose Quain sued the city and its general contractor, Buzzetta, to recover for injuries sustained when she fell into a hole at an unfinished New York City sewer project. A jury awarded plaintiff damages and apportioned responsibility 75 percent to Buzzetta and 25 percent to the city. After trial, the court granted the city's motion for summary judgment on its cross-claim against Buzzetta for contractual indemnification. The Appellate Division affirmed with respect to the issue of liability, but modified by directing a new trial on damages unless plaintiffs stipulated to a reduction in the award. Plaintiffs so stipulated.

Buzzetta then sought and was granted leave to appeal. In its moving papers, Buzetta stated: "[It] is requested that this Honorable Court review that limited issue on this motion for leave to appeal of whether the Appellate Division was in error to the extreme prejudice of this appellant in holding that the applicable amended Section 5-322.1 of the General Obligations Law did not make void, unlawful and against public policy the recovery by the City of indemnification from Buzzetta for the City's 25% adjudicated negligence by virtue of the City's contractual indemnification provision in its contract."¹⁸

In its jurisdictional statement¹⁹ and in its brief, however, Buzzetta raised the issue of its liability to plaintiffs. Plaintiffs moved to resettle the order granting leave and to strike those portions of Buzzetta's jurisdictional statement and brief pertaining to the question of liability to plaintiffs. The Court denied plaintiffs' motions without prejudice to their renewal during the appeal and, on the appeal, considered them to have been renewed and concluded that they should be granted.

Ordinarily when the court grants a motion for leave to appeal all issues of which the court may take cognizance may be addressed by the parties. Where, however, the party seeking leave specifically limits the issues to be raised, it is bound thereby and may not thereafter raise other questions. To permit otherwise necessarily disadvantages the opposing parties, who might have joined issue or even cross-moved for leave to appeal as to additional issues had adequate notice been given. Having limited itself to the issue of indemnification, Buzzetta may not now raise the question of liability as to plaintiffs.²⁰

There is no principled difference between the Court of Appeals jurisdiction to review "all issues of which the court may take cognizance" (i.e., which have been preserved in the courts below and are within the Court's power to review) when an appeal is taken as of right or when leave to appeal has been granted.

Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.

Notes

1. 2010 Annual Report of the clerk of the Court of Appeals, Appendix 3. The other principal jurisdictional predicates were Court of Appeals Leave Grants 41.6 percent (57 of 137); Appellate Division Leave Grants 21.9 percent (30 of 137) and Constitutional Question 3 percent (4 of 137).
2. 41 N.Y.2d 338, 392 N.Y.S.2d 609, 610 (1977).
3. Ibid.
4. 15 N.Y.3d 883, 912 N.Y.S.2d 533 (2010).
5. The court noted that "The purpose of the doctrine of attenuation is to determine whether there was a sufficiently 'definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning' and is no longer influenced by the taint of the earlier Miranda violation." 15 N.Y.3d at 884, n.1, 912 N.Y.S.2d at 534, n.1.
6. 15 N.Y.3d at 884, 912 N.Y.S.2d at 534.
7. 15 N.Y.3d at 885, 912 N.Y.S.2d at 534.
8. 49 N.Y.2d 354, 358-359, 426 N.Y.S.2d 220 (1980).
9. Pre-1985, only one dissent was required by then CPLR §5601(a)(i).
10. McVey v. Papier, 94 A.D.2d 667, 462 N.Y.S.2d 609 (1st Dept. 1983), appeal dismissed, 60 N.Y.2d 890, 470 N.Y.S.2d 583 (1983).
11. Cross Properties Inc. v. Brook Realty Co., 113 A.D.2d 863, 493 N.Y.S.2d 594 (1st Dept. 1985), appeal dismissed, 67 N.Y.2d 869, 501 N.Y.S.2d 663 (1986).
12. Lucas v. New York City Transit Authority, 163 A.D.2d 21, 557 N.Y.S.2d 919 (1st Dept.) ("I dissent because the verdict was against the weight of the evidence, because the apportionment of liability was against the weight of the evidence and because the award was excessive"), appeal dismissed, 76 N.Y.2d 933, 563 N.Y.S.2d 58 (1990).
13. Hemphill v. Hemphill, 169 A.D.2d 29, 572 N.Y.S.2d 689 (2d Dept.) ("The Supreme Court's resolution of the present child custody dispute constitutes an improvident exercise of discretion, if not an error as a matter of law"), appeal dismissed, 78 N.Y.2d 1070, 576 N.Y.S.2d 216 (1991).
14. Loomis v. City of Binghamton, 43 A.D.2d 764, 350 N.Y.S.2d 213 (3d Dept. 1973), appeal dismissed, 34 N.Y.2d 537, 354 N.Y.S.2d 101 (1974)(failure to except to charge).
15. 29 N.Y.2d 891, 328 N.Y.S.2d 679 (1972).
16. 29 N.Y.2d at 891-892, 328 N.Y.S.2d at 679.
17. 69 N.Y.2d 376, 379, 514 N.Y.S.2d 701, 702 (1987).
18. 69 N.Y.2d at 380, 514 N.Y.S.2d at 702.
19. The jurisdictional statement (formerly Court of Appeals Rules 22 NYCRR §500.2) has been replaced by the preliminary appeal statement. Rules, 22 NYCRR §500.9.
20. 69 N.Y.2d at 380, 514 N.Y.S.2d at 702.

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