Appellate practice in New York state courts is different from federal practice and that of most states. Almost any order or judgment, whether interlocutory or final, may be appealed to the Appellate Division of the Supreme Court, New York's intermediate appellate court. As a result, appeals play a greater role in overall litigation strategy in New York than elsewhere.
Since joining Lester Schwab Katz & Dwyer LLP in 2002, John Sandercock has briefed and argued appeals to the Appellate Division, the New York Court of Appeals, and the Second Circuit involving a wide range of issues in personal injury and property damage cases.
Points to remember
"Arguments advanced for the first time in reply papers are entitled to no consideration by a court entertaining a summary judgment motion. This Court has required and will require consistent application of the rule." Clearwater Realty v. Hernandez, 256 AD2d 100, 681 NYS2d 270 (1st Dept. 1998).
Arguments not presented to the lower court will not be considered on appeal. Louis Savarese General Contracting v. Mychalczak, 272 AD2d 300 (2d Dept. 2000); Norwalk v. J.P. Morgan & Co., 268 AD2d 413 (2d Dept. 2000); Zambito v. Catanzaro, 264 AD2d 839 (2d Dept. 1999); Board of Education of Hempstead Union Free School District v. Hempstead Classroom Teachers Assn, 251 AD2d 502 (2d Dept. 1998).
A question of law may be considered for the first time on appeal if it presents no new facts, it appears on the face of the record, and the issue could not have been avoided by the other parties if it had been brought to their attention below. Buywise Holding, LLC v. Harris, - A.D.3d - , 821 N.Y.S.2d 213 (2d Dept. 2006); Chambers v. Old Stone Hill Rd. Assoc., 303 A.D.2d 536, 538 (2d Dept. 2003("pure questions of law or statutory interpretation may be considered because their resolution does not hinge on the record evidence"); Libeson v. Copy Realty Corp., 167 A.D.2d 376, 377 (2d Dept. 1990)("an issue which was not raised before the nisi prius court is reviewable by this court if the question presented is one of law which appeared upon the face of the record and which could not have been avoided by the respondents if brought to their attention at the proper juncture").
Plaintiff's argument that summary judgment should not have been granted because defendants failed to include signed, sworn copies of the deposition transcripts, is raised for the first time on appeal and thus, is precluded from review ( Ta–Chotani v. Doubleclick, Inc., 276 A.D.2d 313  ). Were we to consider the argument, we would find that the signed, sworn documents were in defendants' possession and could have been provided to the motion court had defendants been notified of the omission. Moreover, the deposition transcripts are admissible as plaintiff's own admission since the transcripts had been certified as accurate by the court reporter ( Morchik v. Trinity School, 257 A.D.2d 534, 536  ). Singh v. Actors Equity Holding Corp., 89 A.D.3d 488 (1st Dept. 2011).
Appellate courts evaluate grants of summary judgment as of the time they are made. Icon Motors, Inc. v. Empire State Datsun, Inc., 178 AD2d 463 (2d Dept. 1991).
The appellate division, as a division of the supreme court, has the power to search the record pursuant to CPLR 3212(b) and grant the relief where appropriate, even in the absence of a cross-motion or an appeal. Canning v. Barney's New York, 289 AD2d 32 (1st Dept. 2001); Bisceglia v. IBM, 287 AD2d 674 (2d Dept. 2001); QDR Consultants & Dev. Corp. v. Colonia Ins. Co., 249 AD2d 214 (1st Dept. 1998).
We particularly disapprove of the failure of ___'s attorney to cite adverse authority. The failure is especially glaring in this case since ____'s attorney represented the losing appellant in _____, supra, a Second Department case issued a matter of weeks before _____'s reply brief on the instant appeal was submitted, which precisely addresses five out of six of _____'s causes of action as well as the issue of class certification [citation omitted] and, unless and until overruled or disagreed with by this Court, is "controlling" authority that _____'s attorney was obligated to bring to the attention of this Court. [citations omitted]. Nachbaur v. American Transit Ins. Co., 300 AD2d 74, 752 NYS2d 605 (1st Dept 2002).
Generally, an order denying a motion in limine, even when “made in advance of trial on motion papers[,] constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” (citations omitted). “Inasmuch as those parts of the order herein merely adjudicated the admissibility of evidence and do not affect a substantial right, no appeal lies as of right from those parts of the order” (citations omitted). Thome v Benchmark Main Tr. Assoc., LLC, 125 AD3d 1283, 1285 [4th Dept 2015]
Oral argument may only be valuable in 20% of the cases.
«The prosecution of claims for liability is a quintessential post-industrial, post modern activity consisting of highly skilled practitioners on all sides and massive funds supplied by an insurance industry which continues to feed the modern monster. It is a wonderful example of how modern economic activity seems to consist of almost no traditional plant or investment and rests on the role and perception of the skills deployed. Some describe it as 'living on thin air'.» (Sam Ignarski)