theCPLRblog

Fix that appeal with CPLR § 5520 and othe good stuff

CPLR § 5520 Omissions; appeal by improper method

CPLR § 5512 Appealable Paper; entry of order made out of court

Republic Mtge. Ins. Co. v Countrywide Fin. Corp., 2011 NY Slip Op 06292 (1st Dept., 2011)

Initially, to reach the merits of plaintiffs' appeal, we exercise our discretionary authority, pursuant to CPLR 5520(c), to deem the inaccurate notice of appeal as valid to correct the procedural problem created here by plaintiffs' appeal from the order and not the judgment (Robertson v Greenstein, 308 AD2d 381 [2003], lv dismissed 2 NY3d 759 [2004]).

Clemons v Schindler El. Corp., 2011 NY Slip Op 06205 (1st Dept., 2011)

Purported appeals from decisions, Supreme Court, New York County (Judith J. Gische, J. and Ira Gammerman, J.H.O.), filed January 12, 2010, which, respectively, denied a motion to strike this matter from the trial calendar, and denied an application to adjourn the proceedings and directed dismissal of the complaint with prejudice for failure to prosecute, unanimously dismissed, with costs, as taken from nonappealable papers.

In December 2008, trial of this matter was adjourned to January 7, 2009 to accommodate the vacation plans of plaintiff's trial counsel. Several days later, plaintiff brought an order to show cause to remove the case from the trial calendar in order to permit amendment of her expert's report to assert an additional basis of liability. The motion was heard by Supreme Court (Judith J. Gische, J.) and denied in an order entered January 14, 2009. The unsigned transcript of the proceedings, reciting that it "constitutes the decision and order of the Court," was not filed until January 12, 2010.

After appearing before Justice Gische, the parties proceeded to the trial part, where plaintiff sought adjournment on the ground that trial counsel was on trial in another matter. After JHO Gammerman indicated his acquiescence to the extent of adjourning trial for a few days, plaintiff's counsel requested that the court go off the record. When the proceedings resumed, JHO Gammerman ruled that it was dismissing the matter for failure to prosecute, stating that "it is a dismissal with prejudice, and the Clerk is directed to enter appropriate judgment." The transcript of these proceedings, likewise unsigned, was also not entered until January 12, 2010.

The ruling sought to be reviewed on this appeal is indeterminate. The notice of appeal dated January 13, 2010 recites that the appeal is taken "from the order of [Supreme] Court duly entered in the office of the Clerk on January 12, 2010." While the notice fails to specify the individual judge or judicial hearing officer, plaintiff's pre-argument statement (McKinney's NY Rules of Court [22 NYCRR] § 600.17[a]) identifies the ruling appealed from as that of Justice Gische. Finally, plaintiff's brief designates the question to be decided as whether the trial court committed an abuse of discretion in denying the motion to mark the matter off the trial calendar, leading to an order dismissing the case, and concludes that "the orders [sic] appealed from should be reversed."

Although the transcript of proceedings before JHO Gammerman indicates that, upon signing, it may be presented to the Clerk for entry of judgment, it is not signed and no subsequent proceedings are reflected in the record. Particularly, there is no indication that judgment was ever entered.

Neither of the decisions filed on January 12, 2010 constitutes an appealable paper (CPLR 5512[a]), and this appeal must be dismissed for lack of jurisdiction (Matter of Grosso v Slade, 179 AD2d 585, 586 [1992]). The ruling by Justice Gische was reduced to a short-form order duly entered on January 14, 2009 (CPLR 2219[a]) but not appealed from. The JHO's decision was never presented for signature by a Supreme Court Justice, and there is no record of any judgment having been entered thereon from which an appeal could be taken.

Singh v Lincoln Mgt., LLC, 2011 NY Slip Op 06484 (2nd Dept., 2011)

The appeal by the plaintiff from the order must be dismissed for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8[c], [e]). The appeal by the defendants third-party plaintiffs from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal by the defendants third-party plaintiffs from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

However, the appeal by the defendants third-party plaintiffs from the judgment must be dismissed, as they are not aggrieved thereby. They received all the relief sought by them on their cross motion for summary judgment dismissing the complaint, the third-party defendant's renewed motion for summary judgment dismissing the third-party complaint was denied as academic, and the third-party complaint has not been dismissed by the Supreme Court (see CPLR 5511). That the order brought up for review on the appeal from the judgment may contain language or reasoning which the defendants third-party plaintiffs deem adverse to their interests does not furnish them with a basis for taking an appeal (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473).

Deller v Mercy Med. Ctr., 2011 NY Slip Op 06365 (2nd Dept., 2011)

As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). The plaintiff appealed from a judgment entered January 12, 2009, which upon, inter alia, an order of the Supreme Court, Nassau County, entered October 4, 2005, denying the plaintiff's motion to restore the action to the trial calendar, dismissed the complaint pursuant to CPLR 3404. That appeal was dismissed by decision and order on motion of this Court dated August 4, 2010, for failure to perfect in accordance with the rules of this Court, and that dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed on that appeal (see Bray v Cox, 38 NY2d at 355). Under the circumstances of this case, we decline to exercise our discretion to determine the merits of the instant appeal from the amended judgment, which raises the same issues as could have been raised on the prior appeal (see Bray v Cox, 38 NY2d 350; Graziano v Graziano, 66 AD3d 835; Blue Chip Mtge. Corp. v Stumpf, 50 AD3d 936; Matter of Talt v Murphy, 35 AD3d 486; Hepner v New York City Tr. Auth., 27 AD3d 418).

CPLR § 5511 and CPLR § 5701

CPLR § 5511 Permissible appellant and respondent

Santos v County of Westchester, 2011 NY Slip Op 01013 (App. Div., 2nd 2011)

The appeal by the County defendants must be dismissed. Since they did not oppose the City's cross motion before the Supreme Court, they are not aggrieved by the order appealed from (see CPLR 5511).

CPLR § 5701 Appeals to appellate division from supreme and county courts

Wright v Stam, 2011 NY Slip Op 01020 (App. Div., 2nd 2011)

ORDERED that the appeal from so much of the order as granted that branch of the motion which was to appoint a guardian ad litem on the plaintiff's behalf only to the extent of directing a hearing on that issue is dismissed, as no appeal lies as of right from an order directing a hearing to aid in the determination of a motion, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Zoref v Glassman, 44 AD3d 1036); and it is further,

ORDERED that the appeal from so much of the order as, sua sponte, directed the plaintiff to undergo a psychological evaluation is dismissed, as no appeal lies as of right from an order which does not determine a motion made on notice, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Ciprijan v Stone, 65 AD3d 659); and it is further,

The bold is mine.

The NYLJ has something special for you.

My week started off with the littlest child breaking my glasses into two.  As you can see, I fixed it with a mix of crazy glue and sewing thread.  Now when I wear them I look like Sloth and it makes my vision all crazy like.  And today, while I was walking home I walked past an electronics store with a Pickachu statute on the outside and I swear, it looked like it was flipping me the bird.  I blame that on my lack of sleep.  What I can't explain is that for second, I was genuinely pissed at Pickachu.¹

And onto the law.  Yesterday's Law Journal had one of those special fancy pants pull out sections: Court of Appeals and Appellate Practice.  One of the sections, indeed, the most important section is, Civil Practice: Substantive Impact of the CPLR.  Sure, there are other sections, but you didn't come here for them.  You can here to see if I would actually fight a statue of a cartoon character and read about the CPLR.

The section covers, among other things CPLR CPLR § 205(a), CPLR § 5511, CPLR § 5304, CPLR § 901(a).

The discussion of CPLR 205(a) revolved around Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511 (Ct. App., 2009), a case I posted way back when.  Next is CPLR 5511.  The author, Thomas F. Gleason, starts with Batavia Turf Farms v. County of Genesee, 91 NY 2d 906 (Ct. App. 1998), a remarkably terse decision.  From there he moves to Adams v Genie Indus., Inc., 14 NY3d 535 (Ct. App. 2010), a case I didn't post.  Adams, Mr. Gleason writes, rejected the "more restrictive premise of Batavia, viz., "a stipulation on one issue (such as damages) would foreclose an appeal on other unrelated issues, because a party who had consented to an order could not claim to be aggrieved by any part of it within the meaning of CPLR 5511."²

 In his discussion of class actions, namely CPLR 901(a), he refers to City of New York v Maul, 14 NY3d 499 (Ct. App. 2010), another case I managed to miss.

There's more. But you have to go read it for yourself.

Norman A. Olch, blogger and appellate guru, provides a several book reviews, including Making Your Case, by Scalia and Garner.  Everyone should read it.  You shouldnt need him to tell you to, but, if it that's what it takes, then fine.

Harry Steinberg has a must read section on how not to completely screw up your appeal.  Part of it involves preserving the issues for appeal.  A decision came out today on just that issue: Arrieta v Shams Waterproofing, Inc., 2010 NY Slip Op 06508 (App. Div., 1st 2010). 

I might add some more later.

 

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1.  I'm recycling facebook updates today.

2.  For more cases discussing what it means to be "aggrieved" click HERE.  I think all of them are from the Appellate Division, Second Department.  Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010) is the most recent and probably the most useful.

Aggrieved

Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010)

The threshold issue raised by these facts is whether the limousine defendants are aggrieved by the dismissal of the complaint against the van defendants. The requirement that an appellant be aggrieved by a judgment or order appealed from is contained in CPLR 5511, which states:

"§ 5511. Permissible appellant and respondent. An aggrieved party or a person substituted for him may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party. He shall be designated as the appellant and the adverse party as the respondent" (emphasis added).

When the revisers of the laws on civil practice were in the process of creating the CPLR, they were unable to formulate a definition for the word "aggrievement" and they determined to leave that definition to case law (see Revisers' Notes in McKinney's Cons Laws of NY, Book 7B, CPLR 5511, at 129). At that time, the classic attempt at a broad definition of aggrievement was found in the case of Matter of Richmond County Socy. for Prevention of Cruelty to Children (11 AD2d 236, affd 9 NY2d 913, cert denied sub nom. Staten Island Mental Health Soc., Inc. v Richmond County Soc. For Prevention of Cruelty to Children, 368 US 290), in which it was said that "the test [of aggrievement] is whether the person seeking to appeal has a direct interest in the controversy which is affected by the result and whether the adjudication has a binding force against the rights, person or property of the party or person seeking to appeal" (id. at 239). Experience with that definition has shown that while legally correct, it does not provide a clear test which is relatively easy to apply with consistency.

 

For an analysis of the decision, head over to Full Court Pass.  I'm too busy winning awards and shit.

Not Aggrieved (CPLR § 5511)

DKFT Pizza, Inc. v Riviera Plaza, LLC, 2010 NY Slip Op 02086 (App. Div., 2nd, 2010)

Only "[a]n aggrieved party or a person substituted for him may appeal from any appealable . . . order" (CPLR 5511). "A party is aggrieved by an order when it directly affects that party's individual rights" (Berrechid v Shahin, 60 AD3d 884, 884; see Carollo v Northern Westchester Hosp. Ctr., 5 AD3d 715). Since the Supreme Court's order, which preliminarily enjoined the defendants DCB Food Services Corp., d/b/a Sandella's Cafe, and Danielle DiBenedetto from selling certain food and beverage items at their cafÉ, did not affect the rights of the defendants Riviera Plaza, LLC, and Riviera Plaza Associates, the latter two are not aggrieved by the order, and the appeal must be dismissed (see generally Matter of Commercial Bank of Informatics & Computing Technique Dev. Bank Informtechnika v Ostashko, 274 AD2d 516; Law v Benedict, 197 AD2d 808; see also Won's Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 162).

The bold is mine.

CPLR § 5511--only the aggrieved can appeal

CPLR § 5511 Permissible appellant and respondent

AMS Prods., LLC v Signorile, 2009 NY Slip Op 07776 (App. Div., 2nd, 2009)

Only an aggrieved party may appeal from an order or judgment pursuant to CPLR 5511 (see Unitrin Advantage Ins. Co. v Duclaire, 49 AD3d 863). Where a party obtains the relief it seeks from the Supreme Court, is not aggrieved by that order (id.; see DiMare v O'Rourke, 35 AD3d 346; Evans v Nab Constr. Corp., 80 AD2d 841).

Here, the plaintiff, by its motion, sought a preliminary injunction enjoining the defendant from "engaging in any business, trade or occupation" within the New York City metropolitan area that was "similar to the one" he sold to the plaintiff. The Supreme Court granted all of the relief requested in the plaintiff's motion. Consequently, the plaintiff is not an aggrieved party.

To the extent that the plaintiff requests relief on this appeal which was not sought before the Supreme Court, that request is not properly before this Court.

The bold is mine.

CPLR § 5511; CPLR § 5501

CPLR § 5511 Permissible appellant and respondent

CPLR § 5501 Scope of review

Geraci v Probst, 2009 NY Slip Op 02971 (App. Div., 2nd, 2009)

The defendants' contention that the trial court erred in allowing testimony as to republication of Probst's defamatory statements by Newsday is unpreserved for appellate review (see CPLR 5501; Firth v State of New York, 98 NY2d 365, 372). The defendants' contention that the trial court erred in allowing testimony about an investigation of the plaintiff by the District Attorney's office is without merit, as the evidence demonstrated that the investigation was caused by Probst's own defamatory statements (see Garrison v Sun Print & Publ. Assn., 207 NY 1, 8). In addition, the trial court properly allowed testimony about an out-of-court statement regarding the extent of the effect of Probst's defamatory statements on the plaintiff's reputation, as the testimony was not [*3]hearsay (see Gelpi v 37th Ave. Realty Corp., 281 AD2d 392).

A party who consents to a trial court's reduction of a damages award is not aggrieved by the resulting judgment, and therefore is not entitled to appeal from that judgment (see CPLR 5511; Zhagnay v Royal Realty Co., 87 NY2d 954). Accordingly, the plaintiff's cross appeal must be dismissed. However, the plaintiff may be afforded relief pursuant to CPLR 5501(a)(5) (see Hecht v City of New York, 60 NY2d 57, 63, n; Papa v City of New York, 194 AD2d 527, 532; Donohoe v Foldner, 168 AD2d 412, 413).

In determining whether a jury's award of damages is excessive, the court should consider whether the award "deviate[s] materially from what would be reasonable compensation" (see CPLR 5501[c]; K. Capolino Constr. Corp. v White Plains Hous. Auth., 275 AD2d 347, 349). Here, the Supreme Court properly determined that the damage awards were excessive, and appropriately reduced the same to the extent indicated.

The defendants' remaining contentions are either unpreserved for appellate review (see CPLR 5501; Firth v State of New York, 98 NY2d at 372), waived (see Santiago v RodrÍguez, 38 AD3d 639, 640), or without merit.

The bold is mine.

CPLR § 5511

CPLR § 5511 Permissible appellant and respondent

Debcon Fin. Servs., Inc. v 83-17 Broadway Corp., 2009 NY Slip Op 02967 (App. Div., 2nd, 2009)

Finally, we do not address the arguments raised by the defendant Demetra Sirica in her brief denominated as a "respondent's" brief. Since her brief contests the Supreme Court's denial of her individual motions, she cannot appear here as respondent (see CPLR 5511). If, as she claims, [*3]she was not served with a notice of entry of the orders at issue, she "may still timely file a notice of appeal" (Nagin v Long Is. Sav. Bank, 94 AD2d 710, 710).

The appeal from the first order entered November 22, 2006, must be dismissed as abandoned, as the appellant did not raise any arguments relating to that order in its brief (see Andre v City of New York, 47 AD3d 605, 606).

CPLR § 5511

CPLR § 5511 Permissible appellant and respondent

Berrechid v Shahin, 2009 NY Slip Op 02312 (App. Div., 2nd, 2009)

Only "[a]n aggrieved party or a person substituted for him may appeal from any appealable . . . order" (CPLR 5511). A party is aggrieved by an order when it directly affects that party's individual rights (see Scopelliti v Town of New Castle, 92 NY2d 944; D'Ambrosio v City of New York, 55 NY2d 454, 458-459). Since the Supreme Court's order affected only the rights of the professional corporation M. Grunzweig & M. Werzberger, M.D., P.C., and of Robert Tracer, and not the individual rights of Charles Bigajer or Murray Werzberger, the latter two are not aggrieved by the order, and the appeals must be dismissed (see Carollo v Northern Westchester Hosp. Ctr., 5 AD3d 715; Siegel v Long Is. Jewish Med. Ctr., 309 AD2d 916).

CPLR § 5511; § 3123

CPLR § 5511 Permissible appellant and respondent

CPLR § 3213 Motion for summary judgment in lieu of complaint

D'Agostino Law Off., P.C. v Parlante, 2009 NY Slip Op 00331 (App. Div., 2nd)

The defendants failed to submit papers in opposition to the plaintiff's motion for summary judgment in lieu of complaint within the time provided in the notice of motion (see CPLR 3213), and the plaintiff's motion for summary judgment in lieu of complaint was granted on default. No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; Sanchez v Village of Ossining, 271 AD2d 674; Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co., 117 AD2d 588). Since the judgment was entered pursuant to an order granting the plaintiff's motion for summary judgment upon the defendants' default in appearing and opposing the motion, the appeal must be dismissed (see Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co., 117 AD2d 588).

The bold is mine.