Under CPLR 5501(c), "The appellate division shall review questions of law and questions of fact on an appeal from a judgment or order…" (emphasis added). "[T]here is a close affinity between questions of fact and questions of discretion, and the references in [the CPLR] to 'questions of fact'…are routinely interpreted to include, as well, questions of discretion and exercises of discretion."¹

In discretionary matters, the Appellate Division's scope of review is co-extensive with that of the trial court, and it may exercise its discretion independently. As the Court of Appeals stated in Brady v. Ottaway Newspapers Inc.,² "since it is vested with the same power and discretion as Special Term, the Appellate Division may also substitute its own discretion even in the absence of abuse."

At times, however, there appear to be no discernable standards that would lend consistency and predictability to the Appellate Division's exercise of its discretion, and similar fact situations do not always result in identical outcomes. For example, in one case, an order granting a motion to dismiss for failure to prosecute was reversed for abuse of discretion and the action reinstated,³ while in another case involving similar facts the grant of such motion was affirmed.⁴ Occasionally, it may be difficult to glean from the decisions what factors led the Appellate Division in one instance to overturn the trial court's exercise of discretion and reinstate the action, and in a similar case affirm the dismissal of the action.

While the outer limits of the trial courts' discretion resist clear delineation, certain factors help to define them. In reviewing a court's exercise of discretion, the Appellate Division generally examines the record to determine whether the decision (1) rests on an error of law or erroneous finding of fact, or (2) cannot be located within the range of permissible decisions, or (3) fails to consider all the relevant factors or unreasonably balances them.

Error of Law

Steinbuch v. Stern⁵ illustrates the Appellate Division's reversal of the trial court's discretionary determination that rested on an error of law. The plaintiff in Steinbuch, a podiatric malpractice action, sustained burn injuries to her calf during a podiatric surgical procedure on her foot. At trial, the plaintiff attempted to adduce expert testimony from a licensed podiatrist, who had treated burns during his residency. The trial court ruled that only a medical doctor could offer the expert opinions necessary to sustain the plaintiff's burden of proof, and because she had no medical expert witness, the court granted the defendant podiatrist's motion to dismiss the complaint insofar as asserted against him. The Appellate Division reversed and reinstated the complaint on the ground that the trial court had abused its discretion in precluding the plaintiff's proposed expert proof.

At the outset, the appellate court in Steinbuch acknowledged that "the determination of a witness' qualification to testify as an expert rests in the sound discretion of the trial court" and "will not be disturbed in the absence of a serious mistake, an error of law or an improvident exercise of discretion."⁶ The court further observed, however, that "[a] witness may be qualified as an expert based upon '[l]ong observation, actual experience and/or study,'" and "the lack of a medical license does not, in and of itself, disqualify a witness from testifying as an expert on a medical question."⁷ The court concluded that, under the particular circumstances of the case, the trial court had abused its discretion in disqualifying the proffered expert because he did not have a medical degree:

The court was required to assess his qualification as an expert based upon his professional background, training, study, and experience. The court did not attempt to make this kind of assessment and erroneously ruled that only a physician with a medical degree could testify with respect to causation.

The proffered expert, established, inter alia, that while New York State podiatrists are only licensed to treat below the ankle, he had experience in diagnosing and treating many burns both above and below the ankle. Thus, we find under the particular circumstances of this case, that he was sufficiently qualified to offer expert testimony as to the respondent's alleged malpractice in his treatment of the plaintiff's burn injury. Furthermore, the trial court erred in not affording the plaintiff an opportunity to lay a foundation for qualification of her witness.⁸

Range of Decisions

Appellate courts have found that the trial court "abused" or "exceeded" its discretion when its decision cannot be located within the range of permissible decisions. In Eastway Constr. Corp. v. City of New York,⁹ the U.S. Court of Appeals for the Second Circuit offered a useful explanation of this concept:

All discretion is to be exercised within reasonable limits. The concept of discretion implies that a decision is lawful at any point within the outer limits of the range of choices appropriate to the issue at hand; at the same time, a decision outside those limits exceeds or, as it is infelicitously said, "abuses" allowable discretion.

In our view, the "deviates materially" standard of appellate review in CPLR 5501(c) illustrates this concept in cases where the trial court has previously reviewed for excessiveness or inadequacy the jury's award of personal injury damages. Section 5501(c) provides that "[i]n reviewing a money judgment in an action in which an itemized verdict is required…in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation."

CPLR 5501(c) mandates that reviewing courts utilize a comparative case analysis in determining the excessiveness of a jury verdict. This requires the Appellate Division to compare the damage award at issue to awards approved by appellate courts in other cases involving similar injuries.¹⁰ If the award at issue "deviates materially" from the range of damages approved in the comparable cases, then it is subject to reduction or increase.

In typical remittitur situations, the Appellate Division will reduce an excessive award—even one already reduced by the trial court under its own §5501(c) analysis—to the upper end of the sustainable range for injuries of that nature. Conversely, in instances of additur, the Appellate Division will increase an inadequate award—even one already increased by the trial court—to the lower end of the sustainable range. "The figure set by the court, and the one to which the party is required to stipulate or face a new trial, represents the minimum (in the case of additur) or the maximum (in the case of remittitur) found by the court to be permissible on the facts."¹¹

Relevant Factors

In reviewing a trial court's discretionary determination involving questions of pretrial procedure, the Appellate Division will independently examine and weigh the factors that the trial court should consider. In SKR Design Group Inc. v. Avidon,¹² for example, a Judicial Hearing Officer (JHO) adjourned the trial date several times at the request of the defendant, whose counsel was recovering from surgery. The defendant retained substitute counsel, and the JHO granted him a 48-hour adjournment to prepare for trial.

On the adjourned trial date, the substitute defense counsel sought to withdraw from the case on the ground that he needed additional preparation time. The trial court denied leave to withdraw, stating that the adjournment was the prerogative of the JHO, who had decided that a 48-hour adjournment provided adequate trial preparation time. When the defense counsel responded that he could not proceed in good conscience and asked that the defendant be permitted to dismiss her attorney and proceed pro se, the trial court denied the application and directed an inquest. The defendant appealed from the resultant money judgment awarded after the inquest.

The Appellate Division reversed and remanded the matter for a new trial in SKR, finding that the denial of an adjournment was an improvident exercise of discretion. At the outset, the court observed that "once a judicial proceeding has commenced, the judge to whom a case is assigned has exclusive jurisdiction over its conduct and may not delegate or surrender judicial authority over such issues as adjournments. Therefore, it was incumbent upon Supreme Court to make a de novo determination of the merits of defendant's adjournment request."¹³

Next, the Appellate Division discussed the relevant factors that shaped the discretionary determination whether to grant an adjournment, and concluded that, on balance, these factors weighed in favor of granting an adjournment based on the record before it:

A court is vested with broad discretion to control its calendar, and a motion for adjournment is generally addressed to the court's sound discretion. However, "[i]n deciding such a motion, the court must indulge in a balanced consideration of all relevant factors including the merit of the action, prejudice or lack thereof to the plaintiff, and intent or lack of intent to deliberately default or abandon the action." Plaintiff did not demonstrate that it would be prejudiced by a delay of trial, defendant alleges that only half of the contracted renovation work was performed and that she incurred expenses to remedy unsatisfactory workmanship, and counsel's health was a factor entirely beyond defendant's control. Under these circumstances, we regard the failure to grant an adjournment to enable defendant to be represented by her chosen counsel to be an improvident exercise of discretion.¹⁴

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.

Endnotes

1. A. Karger, "The Powers of the New York Court of Appeals," §13:9, pp. 480-81 (2005).
2. 63 N.Y.2d 1031, 1032 (N.Y. 1984).
3. E.g., Ferrara v. N.Y. & Atlantic Ry. Co., 25 A.D.3d 753 (2d Dept., 2006).
4. E.g., Koehler v. Sei Young Choi, 49 A.D.3d 504 (2d Dept., 2008).
5. 2 A.D.3d 709 (2d Dept., 2003).
6. Id. at 710 (citations omitted).
7. Id. (citations omitted).
8. Id. at 710-11 (citations omitted).
9. 821 F.2d 121, 123 (2d Cir. 1987).
10. E.g., Donlon v. City of New York, 284 A.D.2d 13, 14 (1st Dept., 2001).
11. D. Siegel, New York Practice, §407, p. 658 (3rd ed.).
12. 32 A.D.3d 697 (1st Dept., 2006).
13. Id. at 698-99 (citations omitted).
14. Id. at 699 (citations omitted).