(II) PERMISSION OF APPELLATE DIVISION ONLY

• Jurisdiction: United States

(ii) Permission of Appellate Division Only

Another category is the appeal for which only the Appellate Division can grant leave. Leave to appeal may be granted only by the Appellate Division and not by the Court of Appeals (1) when the order of the Appellate Division is nonfinal — with the exception just noted in a special proceeding against a public body or officer — or (2) when, regardless of finality, the case is one that originated in a lower court (such as the New York City Civil Court or a district, city, town, or village court).⁹²

In the first category — that in which permission to appeal must be obtained from the Appellate Division because its order is nonfinal — there is the added requirement that the order granting permission certify a question of law. The certified question must be a “decisive” one in the sense that the answer to it will determine the correctness of the Appellate Division’s decision or a separable portion of it. If the Court of Appeals finds that the question certified is not decisive or that it merely involves an exercise of discretion below, it will dismiss the appeal and may do so either sua sponte or on motion. If the question is whether the Appellate...