Dependent upon the kindness of strangers: the circumstances in which a non-appellant may be awarded affirmative relief in the New York Courts.

• Author: Shoot, Brian J.

It is a strange and perplexing phenomenon.

In New York, it is exceedingly simple for a party to take an appeal. Although all of New York's appellate courts have various forms required for the would-be appellant to complete and file, all a party need do to jurisdictionally take an appeal is: (a) prepare a notice of appeal (which need not be a work of art, and typically says nothing more than that the party appeals from all parts of an identified order or judgment); (1) (b) serve the notice of appeal on the other parties within thirty days of service of the judgment or order (with notice of entry) that is being appealed; and (c) file the notice of appeal, within the same time frame, in the court from which the appeal is taken. (2)

Not easy enough to take an appeal? Well, Civil Practice Law and Rules ("CPLR") 5520(a) makes it even more difficult to go wrong. As the Court of Appeals recently had occasion to demonstrate, (3) if the would-be appellant gets either the service part right or the filing part right, the court from or to which the appeal is taken can, in its beneficence, excuse the irregularity in the part that did not go so well.

Is thirty days not enough time to prepare, file, and/or serve a document that is likely no more than a page long? The statutes enacted by legislators who often empathize with lawyers (since the legislators often are lawyers) again intervene to protect lawyers from their own follies. If the order or judgment that is being appealed was served by overnight mail, another day is added, as would apply to service of virtually any document by overnight mail. (4) If the order or judgment was instead served by ordinary mail, five days are added. (5) In fact, as a result of a 1999 amendment, the would-be appellant gets an extra five days for ordinary mailing even if it was the would-be appellant who served the order or judgment by mail, (6) a provision that some might deem generous inasmuch as the would-be appellant need not, one would think, actually wait for the mail to arrive at its destination before reading the document that he or she is mailing.

But what about those instances in which the party may have a valid complaint with some aspect of the judgment but would just as soon let the matter rest and allow the case to conclude so long as the other parties are also willing to do so? And what about the party who believes that an interlocutory order was wrongly decided but is content to wait until final judgment is entered to get the matter sorted out on appeal? (7) For these litigants who would prefer to appeal if and only if the adversary does so, New York law provides the useful mechanism of the cross-appeal. The recalcitrant appellant can wait and see if any of the parties are going to appeal, and, if one of the other adversarial parties in fact does so, has ten days from service of the notice of appeal or the remainder of the thirty-day period--whichever is longer--to file a cross-appeal. (8) The same provision also provides a second chance for the would-be appellant who actually meant to appeal but just neglected to do so.

In this context, the strange and perplexing phenomenon is that, even with statutes that virtually defy the would-be appellant to "blow" the notice of appeal requirement, so many would-be appellants nonetheless do so. More to the point, so many would-be appellants with valid claims for appellate relief somehow manage not to timely and properly appeal in cases in which one or more of the other parties does appeal the order or judgment in issue.

This article examines the circumstances in which affirmative relief may be granted to that unfortunate breed: the non-appealing party who, on the merits, actually deserves affirmative relief. The article also examines whether, or to what extent, the non-appellant's rights may have been broadened by the Second Department's 2008 ruling in Koscinski v. St. Joseph's Medical Center. (9)

1. THE GENERAL RULE

   All non-appellants who seek relief from one of New York's appellate courts are, in a sense, dependent upon the kindness of strangers. The non-appellant must hope that some other party in the case--a stranger, perhaps--actually did appeal. If there is no appeal before the appellate court, there is no possibility of granting the non-appellant relief, no matter how worthy his or her arguments may be. (10) Yet there are, as we shall soon see, circumstances in which, with the aid of "strangers," the non- appellant can obtain relief.

   The general rule is that appellate courts can grant affirmative relief only to those parties who sought such relief as appellants or cross-appellants. (11) Courts have, on occasion, even referred to that prerequisite as constituting a jurisdictional limitation upon the granting of affirmative relief. (12)

   Parenthetically, it was not always this way. Once upon a time, the rule was that "[t]he judgment is entire as to all of the defendants, and must either be reversed or affirmed in toto." (13) That ultimately gave way to the rule followed today, that a judgment can be sustained as to one defendant and yet overturned as to another who was not unified in interest with the first. (14) That change led to another, at least as a general matter: a party now has to appeal in order to reap the benefits of the appeal, and cannot generally obtain relief on another's appeal. (15)

   Interestingly, although most states hold that the general rule precludes an award of affirmative relief to non-appellants, (16) it is not universally so. In some jurisdictions, the rule that a party must appeal to obtain affirmative relief is an absolute rule that brooks no exceptions. (17) In others, the rule seems even more flexible than in New York, amounting to more of a "practice" than a "rule." (18)

   In New York, there are at least three, and now possibly four, circumstances in which a non-appellant can reap the benefits of someone else's appeal. It is the fourth circumstance, examined last, that is most problematic; for, as we shall see, it constitutes an exception which, if ultimately approved by the Court of Appeals, threatens to swallow the rule, at least as to interlocutory appeals. I below urge that the new exception is, however, untenable under the terms of the plainly applicable (but heretofore overlooked) provision of the Civil Practice Law and Rules.

2. THE HECHT RULE: ALLOWING THE GRANT OF RELIEF TO A NON- APPELLANT WHEN SUCH IS NECESSARY TO AFFORD MEANINGFUL OR FULL RELIEF TO A DESERVING APPELLANT

   One instance in which New York law permits--indeed, requires--the grant of affirmative relief to a non-appellant, deserving relief on the merits, is when such is necessary in order to grant meaningful or full relief to an appellant, also deserving relief on the merits. The case in which the Court of Appeals announced the rule, Hecht v. City of New York, (19) also set forth the boundaries of the doctrine.

   In Hecht, the personal injury plaintiff tripped over a sidewalk defect. (20) The supreme court held the defendants City of New York ("City") and Square Depew Garage Corporation ("Square Depew") liable to the plaintiff for negligent maintenance of the sidewalk. (21) The City appealed from the judgment, contending that the defect was, as a matter of law, too "trivial" to trigger liability. (22) Square Depew did not appeal. (23) Notwithstanding this failure to appeal, when the appellate division held that the defect was indeed too "trivial" for liability to be imposed, the court dismissed the complaint against both defendants, the appellant City and nonappellant Square Depew. (24)

   On the plaintiffs appeal to the Court of Appeals, Square Depew argued that the appellate division had exercised its discretionary authority, either of itself or pursuant to CPLR 5522, to grant relief to non-appellants "in the interest of justice." (25) In considering that claim, the Court of Appeals clearly stated, as follows, that relief could "[o]n rare occasions" (26) be granted to non-appellants when such was necessary to fashion full or meaningful relief for an appellant:

   It is, of course, axiomatic that, once an appeal is properly before it, a court may fashion complete relief to the appealing party. On rare occasions, the grant of full relief to the appealing party may necessarily entail granting relief to a nonappealing party. At this time, there is no need to detail or enumerate the specific circumstances when such a judgment or order might be appropriate. (27) Yet, in stating that relief could be granted to a non-appellant where necessary to fashion relief for an appellant, the Hecht court ruled that: (1) appellate courts otherwise lacked authority to grant relief to non-appellants, and had no "interests of justice" authority to do so; and (2) the instant case was not one that fit within the exception inasmuch as full relief could be granted to the appellant City without also granting relief to the non-appealing defendant:

   The power of an appellate court to review a judgment is subject to an appeal being timely taken.... And an appellate court's scope of review with respect to an appellant, once an appeal has been timely taken, is generally limited to those parts of the judgment that have been appealed and that aggrieve the appealing party.... The corollary to this rule is that an appellate court's reversal or modification of a judgment as to an appealing party will not inure to the benefit of a nonappealing coparty ... unless the judgment was rendered against parties having a united and inseverable interest in the judgment's subject matter, which itself permits no inconsistent application among the parties. As full relief to the city can be achieved without granting relief to Square Depew, it was error to dismiss the complaint as to Square Depew unless the city's interest could be said to be inseparable from that of Square Depew. Square Depew argues that the Appellate Division is vested with discretionary power to grant relief to a...