Senate Bill S5964

                                 BILL NUMBER:  S5964

 TITLE OF BILL :
An act to amend the civil practice law and rules, in relation to
determination of finality for the purposes of certain appeals to the
court of appeals and to appellate review of an ex parte order or
applications for provisional remedies


This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

This measure would amend the CPLR regarding appeals in two respects.
First, it would amend sections 5611 and 5513 to eliminate uncertainty
as to the timing and manner of taking appeals to the Court of Appeals
or moving for permission to appeal to the Court of Appeals in those
cases where the Appellate Division orders a new trial unless a party
stipulates to a remittance or addition to the jury verdict. Second, it
would amend sections 5701 and 5704 to clarify the interplay between
those statutes.

I. Under current decisional law, the time within which to take an
appeal or move for permission to appeal to the Court of Appeals in
those cases where the Appellate Division orders a new trial unless a
party stipulates to a remittance or addition to the jury verdict
              

varies depending upon semantic, non-substantive distinctions in the
language used by the Appellate Division.

The Court of Appeals held in Whitfield v. City of New York, 90 N.Y.2d
777 (1997), that if an order conditionally reduces the damages and
does not expressly call for amendment of the current judgment in the
plaintiff's favor, then the appeal must be taken from the stipulation
and the time for the defendant to appeal or seek leave to appeal runs
from the plaintiff's service of the stipulation with notice of entry.
If, however, the Appellate Division expressly directs the plaintiff to
effect amendment of the judgment after accepting the reduction of
damages, then the appeal must be taken from the amended judgment and
the time for the taking of the appeal or application for leave to
appeal is measured from service of the amended judgment with notice of
entry. If the Appellate Division goes a step further and provides that
the judgment will be deemed affirmed as modified after the amendment
is effected, then appeal must be taken from the Appellate Division
order and the time for taking of the appeal or applying for leave to
appeal runs from the later of (a) service with notice of entry of the
Appellate Division order, or (b) service with notice of entry of the
amended judgment.

We believe that the time to take an appeal should, in all
circumstances, be definite. Under the proposed amendment, in any case
in which the Appellate Division directs a new trial unless a party
stipulates to accept a modification of the damages or the judgment,
there would be only one appealable paper and only one deadline for
taking of the appeal or seeking leave to appeal - this supposing that
the party given the choice to do so accepts the modification rather
than undergoing a new trial. The deadline for the taking of the appeal
or seeking leave to appeal would in all instances run from the later
of, (a) service of the Appellate Division order with written notice of
its entry, or (b) service of the stipulation with written notice of
its entry.

There are two reasons why this date rather than some later date (
e.g., service of the amended judgment with notice of entry) is deemed
preferable as the starting point for the time to appeal or seek leave
to appeal. First, there are sometimes delays in amending the judgment
and it is generally preferable that Court of Appeals' review occur
sooner rather than later, especially since the cases in issue will
almost always be cases in litigation for many years. Second, while
such disputes do not often arise, the parties sometimes have disputes
specifically concerning the manner in which the judgment is amended
(e.g., a dispute as to the applicable interest rate). Under such
circumstances, it would be unfortunate if the basic appeal concerning
the contested liability and damages issues had to be tabled while the
lower courts first passed on ministerial post-judgment issues.
Selection of the stipulation as the triggering event (as is currently
the case in one of the three Whitfield scenarios) would avoid such
ministerial delays.

The proposed amendment also would make the Appellate Division order
the appealable paper in all cases involving Appellate Division orders
that are final but for conditional modifications. Here, the main point
is that the appealable paper be the same in all such cases. The choice
as to what that paper should be is less important. The reason for
selection of the Appellate Division order as the appealable paper
rather than the stipulation is merely that this better comports with
the reality of the appeal. It is, after all, the Appellate Division
order with which the would-be appellant takes issue.

II. This measure also proposes two changes respecting appellate
procedure relating to the interplay between CPLR 5701. and 5704. CPLR
5701 generally provides for appeals to the Appellate Division from
orders of the Supreme and County Courts. However, there are two
species of applications that have presented problems: i.e., those in
which by the nature of the application there is no adverse party and
those relating to provisional remedies in which there is an urgent
need for appellate review.

The measure would add a new paragraph 4 to CPLR 5701(a) to provide for
the availability of an appeal in circumstances in which, due to the
nature of the application, there is no adverse party. The problem to
which this addition is addressed arises as a result of existing
section 5701(a)(2) and 5701(a)(3), which require that the appealable
order shall have been "made upon notice." There are certain
applications, such as an application for a legal name change, which do
not by their nature provide for an adverse party upon whom notice
would be served. While such applications are not routinely denied in
whole or in part, we believe that the Appellate Division should not be
constrained on jurisdictional grounds from reviewing such an appeal.

Lastly, this measure also proposes an amendment to CPLR 5704, relating
to ex parte applications. Section 5704 provides for review by the
Appellate Division or the Appellate Term of certain ex parte orders
and, currently, the granting of any provisional remedy, such as a
temporary restraining order (TRO), without notice is immediately
reviewable in the Appellate Division under its terms.

However, it has come to the attention of our Advisory Committee that
the present wording of subdivisions (a) and (b) of section 5704 has
been construed to bar an individual Appellate Division justice from
granting a provisional remedy that was denied in the court below. We
believe, however, that the denial of a provisional remedy often gives
rise to emergency conditions, necessitating immediate relief from a
justice of the Appellate Division. Therefore, we recommend amendment
of section 5704 to add language allowing a single Appellate Division
or Appellate Term justice to grant an order or provisional remedy
applied for without notice to the adverse party and refused by the
court below.

This measure, which would have no fiscal impact upon the State, would
take effect January first next after it shall have become a law.

 2008 LEGISLATIVE HISTORY :
None. New proposal.