CPLR § 5601 Appeal as of right to the Court of Appeals and Submission of orders

CPLR § 5601 Appeals to the court of appeals as of right

CPLR § 5601(a).  Dissent

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

The short version:
1. If there are two dissents at the Appellate Division you can appeal as of right; and
2. Rule 202.48's 60-day requirement does not apply to the "entry [of judgment] process."

Farkas v Farkas, 2008 NY Slip Op 07988 (Court of Appeals)

The wife appealed the Appellate Division's May 2007 order to us as of right, based on the dual dissent (see CPLR 5601[a])¹. The husband sought leave to appeal from the same order, which we granted. His appeal brings up for review the Appellate Division's June 1998 order affirming the 1996 judgment (see CPLR 5501[a][1]). We now reverse the Appellate Division's May 2007 order, and uphold its June 1998 order.

The 1996 judgment and the 1999 amended judgment unquestionably were not subject to Rule 202.48's 60-day requirement. These judgments carried out the 1996 decision, which directed the parties to "[s]ettle judgment." Moreover, the decretal paragraph specifically addressing the Chemical Bank monies provided that the wife was "entitled to enter a money judgment against [the husband] for the total amount due and owing to Chemical Bank without further order" ([emphasis added]). That is, this paragraph set out a "simple judgment for a sum of money which speaks for itself," and therefore falls outside the ambit of Rule 202.48 (Funk v Barry, 89 NY2d 364, 367 [1996]). As we emphasized in Funk, the "settle" or "submit" trigger for the 60-day limitation of Rule 202.48(a) "does not purport to govern the flow of the entry process, which is a ministerial recording function that is separate and distinct from the procedure of obtaining the court's signature on a proposed judgment" (89 NY2d at 368 [citations omitted]). And to further drive home the point that no further court action was, in fact, contemplated or [*7]required with respect to the monies owed Chemical Bank, Supreme Court added the phrase "without further order" to the typewritten text of the proposed counter-judgment submitted in 1996.

1. CPLR § 5601(a) reads:

An 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.

The bold and the footnote are mine.

A curious decision.