In 1985, CPLR 5601(a) was amended to narrow considerably the then existing jurisdictional bases for appeals 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.”

The court decided 75 civil appeals in 2024. Of those, the jurisdictional predicate in five appeals (7%) was Appellate Division dissents. These five appeals resulted in three affirmances and two reversals. See 2024 Annual Report of the Clerk of the Court, Appendices one, two and three.

Section 5601(a) provides that “[a]n appeal may be taken to the court of appeals as of right in an action originating in the supreme court, a county court, a surrogate's court, the family court, the court of claims or an administrative agency, from an order of the appellate division which finally determines the action, where there is a dissent by at least two justices on a question of law in favor of the party taking such appeal.”

As the statute makes clear, it is not enough for two justices to dissent. In addition, the Appellate Division order must be “final;” the dissents must be “in favor of” the appellant; and the dissents must be “on a “question of law.”

Failure to meet all these requirements will result in dismissal of the appeal for lack of appellate jurisdiction, either on motion of the adverse party or on the court’s own motion. See, e.g., Worcester Ins. Co. v. Bettenhauser, 94 N.Y.2d 783, 784 (1999) (“Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the dissents at the Appellate Division do not provide a predicate for an appeal as of right under CPLR 5601[a]”).

As a threshold matter, the concept of “finality” is central to the civil subject matter jurisdiction of the Court of Appeals. “Underlying the finality requirement is the need to conserve judicial resources by generally applying a strict policy against piecemeal appeals in a single litigation.” See A. Karger, The Powers of the New York Court of Appeals, §3:1, p. 36 (3d ed. 2005).

The court in Burke v. Crosson, 85 N.Y.2d 10 (1995), offered the following working definition of finality: “A ‘final’ order or judgment is one that disposes of all the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters.

Under this definition, an order or judgment that disposes of some but not all of the substantive and monetary disputes between the same parties is, in most cases, nonfinal.”

Dissent In Appellant’s Favor

Assuming the threshold requirement of finality has been satisfied, the next question is whether there is a dissent by at least two justices in the appellant’s favor.

In order to give the effect of a “dissent” for purposes of CPLR 5601(a), the minority opinion must call for a different disposition (end result) than the majority opinion. A concurring opinion that leads to the same result as the majority is not a “dissent,” even if labeled as such. Christavao v. Unisul-Uniao de Coop. Transf. de Tomate Do Sul Do Tejo, S.C.R.L., 41 N.Y.2d 338 (1977), illustrates this point.

The plaintiff in Christavao asserted personal jurisdiction over the defendants and, via an attachment, over their property. The trial court dismissed the complaint for lack of personal jurisdiction and, as to the remaining quasi-in rem jurisdiction, on the ground that New York was an inconvenient forum (CPLR 327).

The Appellate Division affirmed the dismissal order, with two justices dissenting. See 55 A.D.2d 561 (1st Dept., 1976). The dissent agreed with dismissal of the complaint in all respects, but posited that the objection to personal jurisdiction had been waived and that the complaint should have been dismissed solely on forum non conveniens grounds. 

Therefore, the dissent would have modified the trial court’s dismissal order only to the extent of deleting the portion that dismissed the complaint for lack of personal jurisdiction.

The court of Appeals dismissed the appeal, purportedly taken as of right pursuant to the pre-amendment version of CPLR 5601(a), stating 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.” See 41 N.Y.2d at 339.

The court stated that the statutory dissent requirement should be viewed “in a practical, not literal, sense,” and “[t]he 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.”

Noting that “in this case, all of the justices below advocated the dismissal of the complaint,” the court concluded “it cannot be said that a technical dissent, substantively closer to a concurrence, should generate an appeal as of right.”

The additional requirement that the dissent be in the appellant’s favor excludes, as a jurisdictional basis, a dissent adverse to the appellant or in favor of another party. See, e.g., Baron & Vesel P.C. v. Gammerman, 63 N.Y.2d 671, 671-72 (1984) (cross appeal dismissed where dissent was in favor of adverse party); Matter of Town of Islip, 49 N.Y.2d 354, 358 (1980) (dissent in favor of adverse party); Perrotta v. City of Poughkeepsie, 27 N.Y.2d 746 (1970) (dissent in favor of one defendant does not entitle other defendants to appeal as of right).

In Reis v. Volvo Cars of North America, 24 N.Y.3d 35 (2014), a products liability action, the defendant appealed to the Court of Appeals as of right based upon a two-Justice dissent of the Appellate Division.

The plaintiff, who was also aggrieved by so much of the Appellate Division order as dismissed his failure to warn claims, also purportedly appealed as of right based upon the dissent.

The court dismissed the plaintiff’s appeal because the dissent was not in his favor. Unfortunately, the plaintiff did not move for permission to appeal under CPLR 5602, and the court therefore determined that the part of the order unfavorable to him was beyond its review. See 24 N.Y.2d at 41.

This omission was critical because the court reversed the Appellate Division order and remitted the case for a new trial on the design defect claims only, without considering the plaintiff’s failure to warn claims “in the absence of a properly taken appeal from the dismissal.”

Since the dissent was not in the plaintiff’s favor, the only vehicle for seeking Court of Appeals review of his failure to warn claims would have been a timely motion for permission to appeal under CPLR 5602.

Dissent On A Question Of Law

Under CPLR 5501(b) and N.Y. Const. Art. VI, §3(a), the scope of Court of Appeals review is, with very limited exceptions, limited to questions of law only. The court lacks power to review questions of fact or discretion. CPLR 5601(a) accordingly requires that the two-justice dissent must be “on a question of law.” See Matter of Amoretta, 89 N.Y.2d 935 (19970 (appeal dismissed “upon the ground that the two-Justice dissent is not on a question of law”).

As a further matter, the question of law addressed in the dissent must be duly preserved by an appropriate motion, request or objection in the trial court (see CPLR 5501[a][3]), since “[t]he Court of Appeals * * * generally lacks power to review unpreserved issues even where the Appellate Division has chosen to do so” in the interest of justice. See Altshuler Shaham Provident Funds, Ltd. v. GML Tower, LLC, 21 N.Y.3d 352, 361 n.4 (2013).

Only the Appellate Division has jurisdiction to address unpreserved issues in the interest of justice. When the arguments upon which the dissent is predicated were not raised by the appellant in the trial court, the dissent is not on a question of law that is reviewable by the Court of Appeals under CPLR 5601(a). See Merrill v. Albany Med. Ctr. Hosp., 71 N.Y.2d 990, 991 (1988).

The issue in In re Jamal S., 28 N.Y.3d 92 (2016), was whether the police had the authority to arrest the respondent and whether the subsequent search of his shoes was reasonable. While the reasonableness of police conduct can rarely be resolved as a matter of law even when the facts are not in dispute, the Appellate Division majority and dissent disagreed as to whether the search of the respondent’s shoes was justified, as a matter of law.

Therefore, the two-justice dissent in the Appellate Division was on a question of law and the Court of Appeals had jurisdiction over the appeal.

Conversely, in In re Daniel H., 15 N.Y.3d 883 (2010), the two-Justice dissent in the Appellate Division would have remitted the juvenile delinquency proceeding to Family Court for a new fact-finding hearing on whether the juvenile’s inculpatory statement was sufficiently attenuated from an earlier un-Mirandized statement.

This was a mixed question of law and fact, rather than a question of law, and thus the Court of Appeals lacked jurisdiction to consider the juvenile’s appeal of the Appellate Division order affirming his delinquency adjudication. 

The Reis case above also clarified the scope of review on an appeal properly taken under CPLR 5601(a). Such appeal “brings up for review all issues that the Appellate Division decided adversely to the appellant, even those on which no Appellate Division justice dissented.” See 24 N.Y.3d at 41.

This rule benefitted the defendant manufacturer in Reis because while the Court of Appeals disagreed with the Appellate Division dissenters’ conclusion that a jury charge on “customary business practices” had been improperly given, the court nevertheless reversed and ordered a new trial on the ground that the Appellate Division majority had erred in sustaining the trial court’s decision to give a “special knowledge” charge.

Finally, while it is true that a single-justice dissent in the Appellate Division will not support an appeal as of right under CPLR 5601(a), it is equally true that a well-reasoned solo dissent from a respected Justice will go a long way toward supporting a motion for permission to appeal under CPLR 5602 when the dissent raises debatable questions of law that ought to be reviewed by the Court of Appeals.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.