1.21 F. Scope Of Review

• Jurisdiction: New York

F. SCOPE OF REVIEW

In a treatment of the Appellate Division, scope of review gets short shrift by reason of the broad powers of review that the Appellate Division has on an appeal from a lower court judgment or order. The Appellate Division can and does review issues of fact as well as issues of law and there is hence little need to distinguish the two categories in Appellate Division practice.

In sharp contrast, scope of review is a frequent issue in Court of Appeals practice. The Court is almost exclusively a law court, with power to review findings of fact in only four instances. Two of these are Commission on Judicial Conduct matters and criminal cases involving a death sentence.

A third is the non-jury civil case in which the Appellate Division, in reversing or modifying a lower court judgment, “has expressly or impliedly found new facts and a final judgment pursuant thereto is entered.”¹²³ The rationale for allowing review of the new findings made by the Appellate Division in such a case is that it is the general policy in New York that every losing party be permitted one appellate review of the fact findings. When new findings, which are in essence initial findings, are made by the Appellate Division and a final judgment is the result of them, the only court positioned to review those newly found facts — if any review there be — is the Court of Appeals.

A fourth exception arises in defamation cases where the plaintiff is a public figure. In such cases, plaintiff must prove, with convincing clarity, that the defamatory statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not.¹²⁴ The Court of Appeals has held that it is constitutionally required to review the evidence and exercise independent judgment to determine whether the record establishes that plaintiff has met the required standard.¹²⁵

With those exceptions, the Court of Appeals can review only questions of law. Thus, a frequent problem area in Court of Appeals practice is finding the line between questions of fact and questions of law. In Karger’s monumental work on Court of Appeals practice, “review” is not merely a chapter, but what the author terms a “book.”¹²⁶ This is not to suggest that line-drawing problems are inevitable, or even that they are always difficult when they do arise — although they frequently are — but only to stress that assumptions about scope of review drawn from Appellate Division experience may not be safely applied in the Court of Appeals.

“Appealability” and “reviewability” are not the same. A party may appeal to the Court of Appeals, whether of right or by permission, only to discover after arriving there, and at considerable expense, that there is nothing in the record that the Court of Appeals can review.

Unless the case is the rare one in which the Court of Appeals can review the facts, its conclusion that the only issues raised by the parties are issues of fact rather than of law will result in an affirmance. The affirmance is not because the Court is “reviewing” the fact findings, but because it deems itself bound by the fact findings made below,¹²⁷ as long as there is any evidence in the record to support them.

A few examples of the gray area between “law” and “fact” may be useful. An appellant may always raise in the Court of Appeals the question whether the evidence is sufficient to support a fact finding made below. That is a question of law and its answer depends on whether the jury (or the judge in a bench trial)¹²⁸ could reasonably find the fact either way. If the evidence satisfies that test, as where the evidence is open to conflicting inferences, there is nothing further for the Court of Appeals to review on that issue. Whether the fact finding made below in such a case is contrary to the weight of the evidence is a question of fact that the Court of Appeals cannot and will not examine.¹²⁹ It is therefore necessary to differentiate between the sufficiency of the evidence, which the Court of Appeals can review, and the weight of the evidence, which it cannot.¹³⁰ To conclude that the evidence is legally insufficient to support a jury verdict, the court must conclude that there is simply no valid line of reasoning and permissible inferences that could possibly lead a rational juror to the conclusion reached by the jury on the basis of the evidence presented at trial, while a finding that a verdict is against the weight of the evidence is a discretionary balancing of a number of factors.¹³¹

If the Appellate Division sets aside a judgment based both on the conclusion that the evidence is legally insufficient and on the ground that the verdict is against the weight of the evidence, and the Court of Appeals disagrees and finds the evidence legally sufficient, the Court of Appeals cannot simply reinstate the judgment. It must order a new trial as the Court of Appeals cannot disturb the Appellate Division’s weight of the evidence determination.¹³²

Where the Appellate Division has upheld the findings of fact made in the lower court, the Court of Appeals may review them only to the extent of determining whether there is evidence in the record to support them.¹³³ But if the Appellate Division, in reversing or modifying the lower court, expressly or impliedly finds new facts, the Court of Appeals may determine which of the findings more nearly comports with the weight of the evidence.¹³⁴

There can ordinarily be no question of “law” for the Court of Appeals to review unless...