Motion Practice After an Appellate Division Loss, by Adrienne B. Koch
New York Law Journal (August 19, 2019)
You lost your appeal in the Appellate Division. What do you do next? Unless the decision is appealable as of right (see CPLR 5601), you may have to take your lumps and move on. Under the right circumstances, however, there are three potential paths to further review—though success is rare and there are many considerations to take into account. This article explores their interplay.
Motion to the Appellate Division for Leave to Reargue. A motion for leave to reargue must be made within 30 days of service of notice of entry of the Appellate Division’s order. It asks the Appellate Division to modify its ruling “based upon matters of fact or law allegedly overlooked or misapprehended by the court” in deciding the original appeal, and may not include “any matters of fact not offered” in connection with that appeal. CPLR 2221(d)(2).
This kind of motion presents something of a Catch-22. Though new legal arguments are not strictly prohibited by CPLR 2221(d), courts generally expect a motion for leave to reargue to avoid them. See Matter of Setters v. AI Props. & Devs. (USA), 139 A.D.3d 492 (1st Dep’t 2016). On the other hand, a motion that merely reiterates arguments that were made before will likely fail. A successful motion for leave to reargue has to walk a fine line; the goal is to demonstrate that the Appellate Division “overlooked or misapprehended” a “matter of fact or law” that was actually before it on the original appeal.
To add to the difficulty of walking that line, the Appellate Division does not generally state its reasons for granting reargument. Instead, when it grants reargument it simply replaces its original decision with a revised one. See, e.g., Rodriguez v. City of New York, 168 A.D.3d 481 (1st Dep’t), order recalled and vacated, 172 A.D.3d 556 (1st Dep’t 2015). The precedent therefore provides little guidance about what kinds of arguments actually persuade the court.
Nevertheless, there are times when a motion for leave to reargue is warranted—especially if an aspect of the Appellate Division’s order will have consequences that it seems the court may not have considered. In addition, if there appears to be a valid basis for leave to appeal to the Court of Appeals (see below), it may make sense to couple a motion for such leave with one for leave to reargue. This gives the Appellate Division a chance to change its mind rather than send the case to the Court of Appeals.
Motion to the Appellate Division for Leave to Appeal to the Court of Appeals. CPLR § 5602 gives the Appellate Division the power to grant leave to appeal its order to the Court of Appeals. A motion for such leave must be made within 30 days of service of notice of entry of the order, and must (1) raise a question of law, that (2) involves an issue of state-wide importance, a split among the Appellate Division’s four Departments, a clear conflict with Court of Appeals precedent that creates potential confusion about the state of the law, or a similar circumstance where a determination by the Court of Appeals will have impact beyond the parties.
In civil matters, a motion for leave to appeal “shall, to the extent practicable, be determined by the panel of justices that determined the appeal.” 22 N.Y.C.R.R. § 1250.16(d)(3)(ii). This means that the motion must persuade three of the justices on the original panel that the matter is worthy of Court of Appeals review. In criminal matters, the motion is “submitted to any member of the panel of justices that determined the appeal”—meaning that it need only persuade one justice, but may not necessarily be reviewed by more than one. 22 N.Y.C.R.R. § 1250.16(d)(3)(iii).
On its face, a motion for leave to appeal might look like a better bet than a motion for leave to reargue, especially if the Appellate Division’s ruling was not unanimous. The motion for leave to appeal would only have to persuade some portion of the panel that the issue warrants review by a higher court. This sounds like a much easier task than persuading the judges that they were actually incorrect. It might therefore be tempting to skip the motion for leave to reargue and simply seek leave to appeal. But the calculus is less straightforward.
Most importantly, unlike the Appellate Division, the Court of Appeals can generally only review questions of law, with few exceptions. See CPLR 5501(b). This means that if the Appellate Division’s order turned on a determination of fact or an exercise of discretion, the Court of Appeals will generally lack the power to review it. Similarly, if leave to reargue is sought based on an argument that the Appellate Division overlooked or misapprehended a matter of fact (rather than law), the argument will not likely support leave to appeal to the Court of Appeals. In addition, the Court of Appeals may not consider arguments that were not preserved in the court of first instance, whereas the Appellate Division “has jurisdiction to address unpreserved issues in the interest of justice.” See Merrill by Merrill v. Albany Med. Cntr. Hosp., 71 N.Y.2d 990, 991 (1988). These limits will mean that for some cases leave to appeal is unavailable as a matter of law, leaving a motion for leave to reargue as the only possible path to further review.
Where leave to appeal is available, a single motion may seek leave to reargue and leave to appeal in alternative—but there is a catch. While any motion made on less than 16 days’ notice will not include a right to submit reply papers (see CPLR 2214(b)), a motion for leave to appeal generally cannot be made on more than 15 days’ notice (see CPLR 5516). Pairing the two motions, then, means giving up the right to reply—something that will have to be taken into consideration.
Motion to the Court of Appeals for Leave to Appeal. The Court of Appeals itself can also grant leave to appeal—either in the first instance or after the Appellate Division has denied such leave. See CPLR § 5602(a). But unlike the Appellate Division (which can grant such leave even if its order is not final), the Court of Appeals can grant leave only where the judgment or order from which appeal is sought “finally determines the action.” Id. The finality requirement is strictly enforced, and has only limited exceptions. As a result, unless the Appellate Division has granted leave to appeal, if any aspect of the case is still pending in any lower court, the Court of Appeals will almost certainly not hear the appeal. See Burke v. Crosson, 85 N.Y.2d 10 (1995).
Where the finality and other requirements are met, the Court of Appeals will grant leave upon the approval of any two of its seven judges. See CPLR § 5602(a). At least on paper, these odds may seem more favorable than those at the Appellate Division—particularly since none of the judges of the Court of Appeals will have already decided the matter adversely to the moving party. Indeed, in many (if not most) cases where the Court of Appeals grants leave, the moving party has already unsuccessfully sought it in the Appellate Division. In practice, however, leave is granted so infrequently by either court that, even where it is possible to move directly to the Court of Appeals, there is generally little reason not to ask the Appellate Division first and thereby get an additional bite at the apple.
A motion to the Court of Appeals for leave to appeal must be made within 30 days after service of notice of entry of the Appellate Division’s order. If, however, the motion is first made to the Appellate Division, the motion to the Court of Appeals must be made within 30 days of service of notice of entry of the Appellate Division’s order denying it. CPLR § 5513(b). A motion in the Appellate Division for leave to reargue that is not coupled with one for leave to appeal does not toll this time limit.
Motions for leave to reargue and for leave to appeal are not appropriate (or even possible) in every case. They should be made sparingly, and are granted even more sparingly. But a thoughtful approach that respects their nuanced differences may help improve the chance of success, rare though it may be.
Adrienne B. Koch is a litigation partner with Katsky Korins in New York.
Reprinted with permission from the August 19, 2019 edition of the “New York Law Journal”© 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – firstname.lastname@example.org.