9.41 - V. Interests Of Justice Jurisdiction

• Jurisdiction: New York

V. Interests of Justice Jurisdiction

A somewhat related issue concerning the doctrine of preservation is the broader review powers the appellate division possesses as compared to the N.Y. Court of Appeals. As the Court of Appeals has consistently recognized, unlike the appellate division, the Court lacks jurisdiction to review unpreserved issues in the interest of justice.²¹⁸⁵ The appellate division possesses the inherent authority in the interests of justice to exercise its discretion to review an issue not preserved for appellate review, provided a sufficient record exists.²¹⁸⁶

In Brown v. Moodie,²¹⁸⁷ for example, the Appellate Division reversed a judgment and ordered a new trial even though plaintiff’s counsel did not object to the supreme court justice’s behavior of holding a discussion in camera with the jury’s forewoman without the presence or knowledge of counsel. During that discussion, the justice inquired into the jury’s inclinations, helped the forewoman answer questions on the verdict sheet and did the arithmetic for an apportionment evaluation.

The interests-of-justice rule has...