New York Civil Practice
Law & Rules
NYCPLR Article 56
APPEALS TO THE COURT OF APPEALS
5601. Appeals to the court of appeals as of right.
(a) Dissent.
(b) Constitutional grounds.
(c) From order granting new trial or hearing, upon
stipulation for judgment absolute.
(d) Based upon nonfinal determination of appellate
division.
5602. Appeals to the court of appeals by permission.
(a) Permission of appellate division or court of
appeals.
(b) Permission of appellate division.
5611. When appellate division order deemed final.
5612. Presumptions as to determinations of questions of fact.
(a) Appeal from reversal or modification.
(b) Appeal on certified questions of law.
5613. Disposition upon reversal or modification.
5614. Disposition upon certified questions.
5615. Disposition upon appeal from order granting new trial or
hearing.
S 5601. Appeals to the court of appeals as of right. (a) Dissent. 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.
(b) Constitutional grounds. An appeal may be taken to the court of
appeals as of right:
1. from an order of the appellate division which finally determines an
action where there is directly involved the construction of the
constitution of the state or of the United States; and
2. from a judgment of a court of record of original instance which
finally determines an action where the only question involved on the
appeal is the validity of a statutory provision of the state or of the
United States under the constitution of the state or of the United
States.
(c) From order granting new trial or hearing, upon stipulation for
judgment absolute. 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 granting
or affirming the granting of a new trial or hearing where the appellant
stipulates that, upon affirmance, judgment absolute shall be entered
against him.
(d) Based upon nonfinal determination of appellate division. An appeal
may be taken to the court of appeals as of right from a final judgment
entered in a court of original instance, from a final determination of
an administrative agency or from a final arbitration award, or from an
order of the appellate division which finally determines an appeal from
such a judgment or determination, where the appellate division has made
an order on a prior appeal in the action which necessarily affects the
judgment, determination or award and which satisfies the requirements of
subdivision (a) or of paragraph one of subdivision (b) except that of
finality.
S 5602. Appeals to the court of appeals by permission. (a) Permission
of appellate division or court of appeals. An appeal may be taken to the
court of appeals by permission of the appellate division granted before
application to the court of appeals, or by permission of the court of
appeals upon refusal by the appellate division or upon direct
application. Permission by an appellate division for leave to appeal
shall be pursuant to rules authorized by that appellate division.
Permission by the court of appeals for leave to appeal shall be pursuant
to rules authorized by the court which shall provide that leave to
appeal be granted upon the approval of two judges of the court of
appeals. Such appeal may be taken:
1. in an action originating in the supreme court, a county court, a
surrogate`s court, the family court, the court of claims, an
administrative agency or an arbitration,
(i) from an order of the appellate division which finally determines
the action and which is not appealable as of right, or
(ii) from a final judgment of such court, final determination of such
agency or final arbitration award where the appellate division has made
an order on a prior appeal in the action which necessarily affects the
final judgment, determination or award and the final judgment,
determination or award is not appealable as of right pursuant to
subdivision (d) of section 5601 of this article; and
2. in a proceeding instituted by or against one or more public
officers or a board, commission or other body of public officers or a
court or tribunal, from an order of the appellate division which does
not finally determine such proceeding, except that the appellate
division shall not grant permission to appeal from an order granting or
affirming the granting of a new trial or hearing.
(b) Permission of appellate division. An appeal may be taken to the
court of appeals by permission of the appellate division:
1. from an order of the appellate division which does not finally
determine an action, except an order described in paragraph two of
subdivision (a) or subparagraph (iii) of paragraph two of subdivision
(b) of this section or in subdivision (c) of section 5601;
2. in an action originating in a court other than the supreme court, a
county court, a surrogate`s court, the family court, the court of claims
or an administrative agency.
(i) from an order of the appellate division which finally determines
the action, and which is not appealable as of right pursuant to
paragraph one of subdivision (b) of section 5601, or
(ii) from a final judgment of such court or a final determination of
such agency where the appellate division has made an order on a prior
appeal in the action which necessarily affects the final judgment or
determination and the final judgment or determination is not appealable
as of right pursuant to subdivision (d) of section 5601, or
(iii) from an order of the appellate division granting or affirming
the granting of a new trial or hearing where the appellant stipulates
that, upon affirmance, judgment absolute shall be entered against him.
S 5611. When appellate division order deemed final. If the appellate
division disposes of all the issues in the action its order shall be
considered a final one, and a subsequent appeal may be taken only from
that order and not from any judgment or order entered pursuant to it. If
the aggrieved party is granted leave to replead or to perform some other
act which would defeat the finality of the order, it shall not take
effect as a final order until the expiration of the time limited for
such act without his having performed it.
S 5612. Presumptions as to determinations of questions of fact. (a)
Appeal from reversal or modification. On an appeal from an order of the
appellate division reversing, modifying or setting aside a determination
and rendering a final or interlocutory determination, except when it
reinstates a verdict, the court of appeals shall presume that questions
of fact as to which no findings are made in the order or opinion of the
appellate division were not considered by it, where such findings are
required to be made by paragraph two of subdivision (b) of rule 5712.
(b) Appeal on certified questions of law. On an appeal on certified
questions of law, the court of appeals shall presume that questions of
fact as to which no findings are made in the order granting permission
to appeal or in the order appealed from or in the opinion of the
appellate division were determined in favor of the party who is
respondent in the court of appeals.
S 5613. Disposition upon reversal or modification. The court of
appeals, upon reversing or modifying a determination of the appellate
division, when it appears or must be presumed that questions of fact
were not considered by the appellate division, shall remit the case to
that court for determination of questions of fact raised in the
appellate division.
S 5614. Disposition upon certified questions. The order of the court
of appeals determining an appeal upon certified questions shall certify
its answers to the questions certified and direct entry of the
appropriate judgment or order.
S 5615. Disposition upon appeal from order granting new trial or
hearing. When an appeal to the appellate division presented questions of
fact and a further appeal is taken pursuant to subdivision (c) of
section 5601, or subparagraph (iii) of paragraph two of subdivision (b)
of section 5602, the court of appeals shall affirm the order appealed
from and shall render judgment or order absolute against the appellant
unless the order or opinion of the appellate division recites either
that the questions of fact have not been considered or that the court
has considered the questions of fact and has determined that it would
not grant a new trial or hearing upon those questions.
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NYCPLR Article 57
APPEALS TO THE APPELLATE DIVISION
5701. Appeals to appellate division from supreme and county
courts.
(a) Appeals as of right.
(b) Orders not appealable as of right.
(c) Appeals by permission.
5702. Appeals to appellate division from other courts of
original instance.
5703. Appeals to appellate division from appellate courts.
(a) From appellate terms.
(b) From other appellate courts.
5704. Review of ex parte orders.
(a) By appellate division.
(b) By appellate term.
5711. Where appeal heard.
5712. Content of order determining appeal.
(a) Dissents.
(b) Order of affirmance.
(c) Order of reversal or modification.
5713. Content of order granting permission to appeal to court of
appeals.
S 5701. Appeals to appellate division from supreme and county courts.
(a) Appeals as of right. An appeal may be taken to the appellate
division as of right in an action, originating in the supreme court or a
county court:
1. from any final or interlocutory judgment except one entered
subsequent to an order of the appellate division which disposes of all
the issues in the action; or
2. from an order not specified in subdivision (b), where the motion it
decided was made upon notice and it:
(i) grants, refuses, continues or modifies a provisional remedy; or
(ii) settles, grants or refuses an application to resettle a
transcript or statement on appeal; or
(iii) grants or refuses a new trial; except where specific questions
of fact arising upon the issues in an action triable by the court have
been tried by a jury, pursuant to an order for that purpose, and the
order grants or refuses a new trial upon the merits; or
(iv) involves some part of the merits; or
(v) affects a substantial right; or
(vi) in effect determines the action and prevents a judgment from
which an appeal might be taken; or
(vii) determines a statutory provision of the state to be
unconstitutional, and the determination appears from the reasons given
for the decision or is necessarily implied in the decision; or
(viii) grants a motion for leave to reargue made pursuant to
subdivision (d) of rule 2221 or determines a motion for leave to renew
made pursuant to subdivision (e) of rule 2221; or
3. from an order, where the motion it decided was made upon notice,
refusing to vacate or modify a prior order, if the prior order would
have been appealable as of right under paragraph two had it decided a
motion made upon notice.
(b) Orders not appealable as of right. An order is not appealable to
the appellate division as of right where it:
1. is made in a proceeding against a body or officer pursuant to
article 78; or
2. requires or refuses to require a more definite statement in a
pleading; or 3. orders or refuses to order that scandalous or
prejudicial matter be stricken from a pleading.
(c) Appeals by permission. An appeal may be taken to the appellate
division from any order which is not appealable as of right in an action
originating in the supreme court or a county court by permission of the
judge who made the order granted before application to a justice of the
appellate division; or by permission of a justice of the appellate
division in the department to which the appeal could be taken, upon
refusal by the judge who made the order or upon direct application.
S 5702. Appeals to appellate division from other courts of original
instance. An appeal may be taken to the appellate division from any
judgment or order of a court of original instance other than the supreme
court or a county court in accordance with the statute governing
practice in such court.
S 5703. Appeals to appellate division from appellate courts. (a) From
appellate terms. An appeal may be taken to the appellate division, from
an order of the appellate term which determines an appeal from a
judgment or order of a lower court, by permission of the appellate term
or, in case of refusal, of the appellate division. When permission to
appeal is sought from an order granting or affirming the granting of a
new trial or hearing, the appellant shall stipulate that, upon
affirmance, judgment absolute may be entered against him.
(b) From other appellate courts. An appeal may be taken to the
appellate division as of right from an order of a county court or a
special term of the supreme court which determines an appeal from a
judgment of a lower court.
S 5704. Review of ex parte orders. (a) By appellate division. The
appellate division or a justice thereof may vacate or modify any order
granted without notice to the adverse party by any court or a judge
thereof from which an appeal would lie to such appellate division; and
the appellate division may grant any order or provisional remedy applied
for without notice to the adverse party and refused by any court or a
judge thereof from which an appeal would lie to such appellate division.
(b) By appellate term. The appellate term in the first or second
judicial department or a justice thereof may vacate or modify any order
granted without notice to the adverse party by any court or a judge
thereof from which an appeal would lie to such appellate term; and such
appellate term may grant any order or provisional remedy applied for
without notice to the adverse party and refused by any court or a judge
thereof from which an appeal would lie to such appellate term.
S 5711. Where appeal heard. Except as provided in subdivision (d) of
rule 511, an appeal to the appellate division shall be brought in the
department embracing the county in which the judgment or order appealed
from is entered and there heard and determined unless, in furtherance of
justice, the appeal is sent to another department.
S 5712. Content of order determining appeal. (a) Dissents. Every order
of the appellate division determining an appeal shall state whether one
or more justices dissent from the determination.
(b) Order of affirmance. Whenever the appellate division, although
affirming a final or interlocutory judgment or order, reverses or
modifies any findings of fact, or makes new findings of fact, its order
shall comply with the requirements of subdivision (c).
(c) Order of reversal or modification. Whenever the appellate division
reverses or modifies or sets aside a determination and thereupon makes a
determination, except when it reinstates a verdict, its order shall
state whether its determination is upon the law, or upon the facts, or
upon the law and the facts:
1. if the determination is stated to be upon the law alone, the order
shall also state whether or not the findings of fact below have been
affirmed; and
2. if the determination is stated to be upon the facts, or upon the
law and the facts, the order shall also specify the findings of fact
which are reversed or modified, and set forth any new findings of fact
made by the appellate division with such particularity as was employed
for the statement of the findings of fact in the court of original
instance; except that the order need not specify the findings of fact
which are reversed or modified nor set forth any new findings of fact if
the appeal is either from a determination by the court without any
statement of the findings of fact or from a judgment entered upon a
general verdict without answers to interrogatories.
S 5713. Content of order granting permission to appeal to court of
appeals. When the appellate division grants permission to appeal to the
court of appeals, its order granting such permission shall state that
questions of law have arisen which in its opinion ought to be reviewed.
When the appeal is from a non-final order, the order granting such
permission shall also state that the findings of fact have been
affirmed, or reversed or modified and new findings of fact made, or have
not been considered, shall specify the findings of fact which have been
reversed or modified and set forth new findings of fact with at least
the same particularity as was employed for the findings of fact below
and shall certify the questions of law decisive of the correctness of
its determination or of any separable portion of it.