(I) TWO-DISSENT RULE

• Jurisdiction: United States

(i) Two-Dissent Rule

Subdivision (a) of CPLR 5601 authorizes an appeal of right from a final Appellate Division order “where there is a dissent by at least two justices on a question of law in favor of the party taking such appeal.” But the action must have originated in one of the state’s “superior” courts — i.e., the Supreme Court, the County Court, the Surrogate’s Court, the Family Court, or the Court of Claims — or in an administrative agency. In a different category are the so-called “lower” courts, which are governed by the provision requiring appeal by permission.⁵¹

The dissent must be “on a question of law.” There is no appeal of right if the dissent rests solely on a question of fact or discretion. For example, Appellate Division disagreement as to whether plaintiff made out a prima facie case⁵² or submitted legally sufficient evidence⁵³ presents a question of law that the Court of Appeals may consider. But a dissent which applies the same legal standard as the majority but relies on a different view of the facts will not support an appeal “as of right.”⁵⁴ Likewise, a dissent which is predicated upon a legal issue which was not properly preserved for appellate review, such as by a failure to object at trial, will not support an appeal “as of right.”⁵⁵ This is because, while the Appellate Division has the discretion to take up a legal issue that was not raised below, the...