Thomas Newman
Thomas R. Newman

Last month marked the 45th anniversary of the founding of this column by Benjamin H. Siff, who was its principal writer until his sudden and untimely decease in September 1975. Those who knew Ben, as partner, colleague, friend or even adversary, can attest to the fact that he was a great appellate lawyer and a warm and wonderful human existence. His feel in handling appeals was unequalled—during the period 1955 to 1975, he appeared in the New York Court of Appeals in 153 cases. He is a role model worth remembering.

The statewide Supreme Courtroom of the land of New York "is one judicial institution" and the Appellate Division of the Supreme Courtroom "is not a separate court, but a branch of the Supreme Court; that in upshot…is the Supreme Court sitting in banc."First Nat'l Bank of Glens Falls five. Reoux , 11 A.D.second 876, 877, 203 Due north.Y.Southward.2d 25, 26 (3d Dept. 1960). While CPLR §5501, Scope of Review, states in subsection (c) that "The appellate partitioning shall review questions of law and questions of fact on an entreatment from a judgment or order," it does non mention that court'south power to review an exercise of discretion by the trial court.

All the same, the Appellate Segmentation unquestionably possesses all of the powers of the Supreme Courtroom. Its authorization "is as broad as that of the trial court" (Northern Westchester Professional Park Assembly v. Boondocks of Bedford , lx Northward.Y.2nd 492, 499, 470 Due north.Y.S.2d 350, 354 (1983);Thing of Association of the Bar of the City of New York, 222 A.D. 580, 227 N.Y.Southward. 1 (1st Dept. 1928)), and one often sees an Appellate Division decision and order (one paper) reversing or modifying an order or judgment of the Supreme Courtroom "on the law, the facts and in the practise of discretion." E.g., Matter of Kelly v. Safir , 271 A.D.2d 326, 706 N.Y.Due south.2d 113 (1st Dept. 2000), rev'd 96 N.Y.2d 32, 40, 724 Due north.Y.S.second 680 (2001).

The Appellate Sectionalisation has nearly unlimited authorisation and "discretion" when reviewing orders and judgments of the trial court, but while "[j]udicial discretion is a phrase of nifty latitude…it never means the arbitrary will of the judge. It is e'er 'a legal discretion to be exercised in discerning the form prescribed by law;…' It is a legal discretion founded upon weather condition which call for judicial action every bit distinguished from mere private or personal view or desire."Matter of Superintendent of Banks, 207 N.Y. 11, xv (1912). Or, every bit so U.S. Supreme Court Justice Benjamin Cardozo phrased it, "Discretion is not unconfined and vagrant. It is canalized within banks that keep it from inundation."Panama Refining Co. v. Ryan , 293 U.S. 388, 440 (1935) (dissent).

For the Appellate Division (and trial courts), those banks are established past the Courtroom of Appeals whenever it finds that the exercise by the lower courtroom of its broad discretionary ability was an corruption of discretion every bit a matter of law—for example, when the court granted or denied relief on the footing of plainly impermissible considerations.Barasch v. Micucci , 49 N.Y.2d 594, 427 Due north.Y.South.2nd 732 (1980).

Court of Appeals

Different the Appellate Division, the Court of Appeals' scope of review is restricted past CPLR 5501(a) to questions of police only, except that information technology shall also review questions of fact where the Appellate Partition, on reversing or modifying a last or interlocutory judgment, has expressly or impliedly constitute new facts and a final judgment pursuant thereto is entered. Only, while the CPLR does not grant the Court of Appeals power to review an exercise of discretion by the courts beneath, neither does the New York State Constitution nor any statute prohibit that court from reviewing questions of discretion; the limitation is entirely self-imposed and establish just in the opinions of the court itself.

In Jensen v. Wedlock Ry. Co., 260 N.Y. 1 (1932), a sharply divided Courtroom of Appeals addressed the trial court'southward decision in vacating a defendant's default and setting bated an inquest. The Appellate Division had reversed the trial court'south order, and the Court of Appeals dismissed an appeal from the Appellate Division'southward conclusion. The dissent reviewed a number of the court'south prior decisions and stated that the "discretion, vested in the lower courts, may, even so, become a question of police force reviewable by this court, when its exercise is so arbitrary as to deprive litigants of a reasonable opportunity to be heard, or, in other words, comes within that class of rulings which for meliorate terminology, we telephone call 'an abuse of discretion.' This is not a very polite nor exact description; the term perchance is unfortunate; it simply means that the court has gone too far and beyond the bounds and limitations fix by previous example." Id., at 13 (Crane, J., dissenting).

Half a century later, inBarasch, the Court of Appeals, unanimously, reached the same outcome, stating, "While it is true that this Court has no power to review an exercise of discretion in the ordinary case…, the possibility that the lower court'southward discretion was driveling does requite rise to a question of law that is cognizable in this Court." The courtroom recently restated its position that where the Appellate Partitioning "substitut[ed]…its discretion for that of the trial courtroom, our review is limited" to whether the Appellate Division "abuse[d] its discretion equally a affair of law."Sadek v. Wesley , 27 N.Y.3d 982, 983, 32 Northward.Y.Due south.3d 42, 43 (2016).

Cohen & Karger betoken out in their affiliate on Review of Discretion that "it is always open to a party aggrieved to fence that in the circumstances of his [or her] example the decision against him [or her] below is so improvident, that as a matter of law the decision should not stand." Cohen & Karger, "Powers of the New York Courtroom of Appeals," p. 616 (rev. ed. 1952). Of course, we are not suggesting that the court expend its valuable judicial time and resource in reviewing each case in which information technology is claimed that the Appellate Partitioning or trial court driveling its discretion equally a matter of law. The court has far greater control over its calendar today than it did in 1980 whenBarasch was decided and whatever dissent or modification gave rise to an appeal equally of right. It is, therefore, likely that "the ordinary case" presenting an abuse of discretion claim will exist denied exit to appeal.

The Court of Appeals has said that it "will not, ordinarily, interfere with the Appellate Division's exercise of [its] discretion unless at that place has been an abuse of discretion as a matter of police. Where, however, that court, in exercising its discretion, fails to accept into business relationship all the various factors entitled to consideration, it commits error of law reviewable by [the Courtroom of Appeals]."Varkonyi five. Southward. A. Empresa de Viacao Airea Rio Grandense , 22 N.Y.2nd 333, 337, 292 N.Y.S.second 670, 673 (1968).

Information technology necessarily follows from this that there must first be a clear argument of "all the various factors entitled to consideration," and such a statement tin simply come from the Court of Appeals.

Guidelines and Standards

Viewed from the perspective of practicing attorneys, it is well for the court to occasionally accept a case that will enable it to set forth general guidelines and standards governing the Appellate Partition'southward exercise of the wide discretionary power committed to information technology. Otherwise, counsel are at a loss to propose clients as to their rights and what factors are likely to be considered determinative by the Appellate Partition in any given case. Well-nigh identical fact situations have not ever received identical treatment and resulted in similar dispositions; for example, some Special Term orders denying motions to dismiss are reversed and the activity unconditionally dismissed, while in other cases involving similar fact patterns, the same court affirmed the deprival of a movement to dismiss. Compare Marine v. Jamaica Hospital, 38 A.D.2nd 576, 328 North.Y.S.second 304 (2d Dept. 1971)(action dismissed by AD), with Rockmills Steel Products Corp. 5. Crum & Forster Ins . , 41 A.D.second 604, 340 N.Y.S.2d 391 (2d Dept. 1973)(Advertisement affirmed denial of motion to dismiss without opinion).

What we propose is non without precedent. Judge Domenick Gabrielli'southward stance for the court inBarasch exemplifies the type of opinion that should be of corking assistance to the courts below. Carefully fugitive the adoption of "an inflexible set of rules" to govern the lower courts' discretion, the opinion sets forth a number of significant factors that are to be considered past a courtroom when passing on a motion to dismiss pursuant to CPLR 3012(b) upon plaintiff's failure to timely serve a complaint.

Barasch was a personal injury action in which defendant moved to dismiss following plaintiff'southward failure to serve a complaint inside xx days later a demand therefore had been fabricated. Special Term denied the movement "primarily" because it found that defendant had not been prejudiced by the delay. The Appellate Division affirmed, without opinion, and granted defendant leave to appeal and certified the following question of law for consideration by the Court of Appeals: "Did the order of the Supreme Court, as affirmed by this Court, constitute an corruption of discretion as a matter of constabulary?" The Court of Appeals retained jurisdiction and reversed the order appealed from finding that this was "1 of those rare instances" in which the denial of defendant's motility constituted an abuse of discretion as a matter of law. 49 N.Y.2d at 601, 427 N.Y.S.2d at 735.

With respect to the claim, the court cautioned that while the lower courts relish "considerable latitude" in determining whether to dismiss an activeness pursuant to CPLR 3012(b), "their decisions must be based upon agenuine consideration of several specific factors." 49 Northward.Y.second at 599, 427 N.Y.S.second at 734 (emphasis added). Lip service will not do, as the reversal inBarasch makes clear.

Get-go among the courtroom'southward enumerated factors to avoid dismissal for failure to timely serve a complaint is the requirement that the plaintiff must demonstrate a reasonable excuse for the delay. Side by side, in addition to showing an acceptable justification for filibuster in serving the complaint, the plaintiff must also demonstrate to the court that the claim against the defendant has legal merit. This is usually done past filing an affidavit of merit containing evidentiary facts and attested to by an individual with personal knowledge of those facts. A bare attorney's affidavit will not suffice.

The decision concerning the sufficiency of a plaintiff's affidavit of merit is unremarkably left to the discretion of the lower courts, and while "at that place can be no rigid standards in this context," the Court of Appeals noted that "[a]s a general rule, these affidavits must be sufficient to establish prima facie that the plaintiff has a good cause of action." Ibid. Finally, the court recognized that a "diversity of other factors such equally the length of the filibuster, the complexity of the facts underlying the plaintiff'southward claim and the existence of prior settlement negotiations may accept a bearing upon a court's decision to grant or deny relief under CPLR 3012." 49 N.Y.2d at 599-600, 427 N.Y.S.2nd at 734.

The opinion and facts inBarasch likewise illustrate what is unacceptable, as a thing of police, as a basis for granting plaintiff relief. Plaintiff was 51/2 months tardy in serving his complaint. His excuse amounted to naught more than than "law role failure" and his purported affidavit of merit was insufficient, since information technology was that of his chaser who had no personal knowledge of the facts.

In an instructive footnote, the court distinguished "those cases in which a discretionary remedy is denied by the lower court both in the do of its discretion and upon the legal ground that the courtroom was without power to grant the requested relief…In such cases, the lower court'south legal decision cannot be presented to this court in the form of a 'certified question' for the unproblematic reason that our disposition of the question would not be 'decisive' of the outcome. Even if we were to hold that the lower courtroom erred in terminal that it was without power to grant the requested relief, our belongings could have no effect upon the event in the case, since the lower courtroom would yet withhold the remedy in the exercise of its non-reviewable discretion. It is these cases that form the basis of the oft-cited principle that the deprival of discretionary relief does not ordinarily requite rise to a certifiable question of police force….That principle is of limited utility, however, where the certified question demands that the courtroom consider whether the deprival of otherwise discretionary relief constitutes an abuse of discretion in a particular case." Id., at 598, fn. 1, 427 Northward.Y.Southward.2d at 733 fn. 1 (citations omitted).

Determination

It is articulate from the foregoing that the Court of Appeals has the power, whenever it deems information technology necessary to do information technology, to have jurisdiction in a case raising "corruption of discretion equally a affair of law" and then fix forth the general guidelines that are to govern the exercise of discretion committed to the courts beneath.

Thomas R. Newman is of counsel to Duane Morris and writer of 'New York Appellate Exercise' (Matthew Bender). Steven J. Ahmuty, Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt.

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