IMPEDIMENTS TO 'ALBERT PUJOLS STATUS': SOME DANGER ZONES AND SAFETY NETS IN NEW YORK APPELLATE PRACTICE.

• Author: Markarian, Edward J.

INTRODUCTION

During his term on the Court of Appeals, Judge Eugene F. Pigott, Jr., regularly lectured on the topic of appellate practice. His presentations were informative and entertaining, and I often think about one of his comments. He observed that when Albert Pujols, the great baseball player, comes up to bat, he is not thinking about the rules of the game. He just plays the game. The rules are part of his subconscious. He is focused upon getting the best result in relation to the projectile screeching toward him at one hundred miles per hour, and he makes his five hundred 500-foot redirection of the projectile seem routine. He is in "the zone." Judge Pigott encourages appellate practitioners to master the rules of our craft to an unconscious degree, so that we can make our advocacy as pure as Albert Pujols' home run swing. (1)

I consider Judge Pigott's Albert Pujols comments in juxtaposition to the statement, now appearing in the Siegel and Connors' New York Practice treatise, which I read when drafting my first notice of appeal thirty years ago. To this day, I think about this statement every time I draft a notice of appeal. It suggests, "The 'taking' of the appeal, [as compared to perfecting it], although it confronts a rigid time limitation, is probably the easiest step in civil practice. It's just the service and filing of a paper, or at worst several papers." (2)

The quoted statement scared me thirty years ago and it scares me even today because, whenever I draft a notice of appeal, I imagine, based upon the language of New York's Civil Practice Laws and Rules (CPLR) and the cases interpreting it, the numerous opportunities for me to blunder the easiest step in civil practice!

For me, even this easiest step is not easy, and I have practiced long enough to have experienced some of the harder steps. Considering this, I view the goal of executing appellate practice "in the zone," like Albert Pujols, as formidable. Thankfully, projectiles aimed at appellate practitioners are not traveling one-hundred miles per hour. The speed of our challenges is measured in increments of, sometimes days, and usually months. This is helpful, but only to a degree. Albert Pujols faces just one pitcher at a time. Depending on caseload, appellate practitioners can be bombarded.

Albert Pujols status requires the ability to swing freely. The rules of the game can impede it. Under the appellate practice rules for New York practitioners, (3) our swings may be restricted, or entirely thwarted, if we fail to appreciate requirements under New York's Constitution, (4) statutes, (5) and court rules. (6) Issues must be recognized, and then the comprehensive resources and treatises considered. (7) This Article encourages practitioners to take advantage of those resources, which are impressive in their thoroughness and mastery of the subject matter. This Article is not one of them, but is instead an encouragement to seek them out. This Article is simply a reminder that the rules have real consequences on the actual field of play and that there are numerous obstacles to overcome before the Albert Pujols zone can be contemplated. This is just a warm-up discussion of some things to think about. In other words, this is batting practice.

1. TAKING AN APPEAL TO THE APPELLATE DIVISION

   One rule engrained in our subconscious is the deadline for filing and serving a notice of appeal or motion for leave to appeal. We have thirty days. (8) We are warned to treat this deadline as a statute of limitations. (9)

   Confronted with this deadline, many lawyers rush to file a notice of appeal without assessing whether what the judge did was appealable. (10) Is there an appealable paper (an order or judgment), and does it address an appealable subject matter? Many lawyers are unaware of the technicalities. My telephone usually rings after trial or motion counsel has already filed (and hopefully served) a notice of appeal. I have received calls in cases where counsel filed a notice of appeal from a "verdict" or from a "memorandum decision," neither of which was appealable. (11) Nor can an appeal be taken from an ex parte order (12) or from certain rulings on motions in limine. (13) I, therefore, appreciate the lawyers who contact me early in the process and ask me to assist them in drafting, filing and serving the notice of appeal. Other attorneys play it safe by appealing from "everything in sight," as recommended by Professors Siegel and Connors. (14) I appreciate these lawyers too.

   Before the notice of appeal is filed and served, someone--either the prevailing party or the loser--should serve the appealable paper on opposing counsel. (15) Filing a notice of appeal before this is done makes the notice premature, (16) which is not uncommon because some attorneys are so worried about meeting the thirty-day deadline that they file their notice of appeal too soon. The appellate court is authorized to treat a premature notice as valid, "in its discretion, when the interests of justice so demand." (17) Perhaps more significantly, until the order or judgment is served with notice of entry, the thirty-day clock for filing and serving a notice of appeal has not started to run. (18) This has saved the day for many appellants who believed it too late for them to take an appeal. (19) It has also led to my receiving telephone calls from attorneys asking whether the notice of appeal the caller received was untimely because they received it more than thirty days after the order or judgment was granted. These callers often respond with silence when I ask when the order or judgment was served with notice of entry. Their silence signals that the thirty-day clock had not even started to run.

   If the thirty-day deadline for filing and serving a notice of appeal is blown--meaning that neither is done within thirty days--the opportunity for appellate review may be lost. (20) It is time to check the statutes and treatises to see if one of the rare extension opportunities applies. (21)

   If the thirty-day deadline has expired and is not extendable, but the appealable paper is a non-final order, there might be a second chance for appellate review. (22) CPLR 5501(a)(1) provides that an appeal from a final judgment brings up for review

   any non-final judgment or order which necessarily affects the final judgment, including any which was adverse to the respondent on the appeal from the final judgment and which, if reversed, would entitle the respondent to prevail in whole or in part on that appeal, provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken[.] (23) This statute--which was interpreted by the famous or infamous In re Aho (24) decision--may afford a second opportunity for appellate review of, for example, a non-final order denying summary judgment. (25) But, this second chance is not guaranteed.

   Where a party appeals from an intermediate order, thereafter abandons the appeal by failing to perfect, and the appeal is then dismissed by an appellate court, the party is estopped for reasons of judicial economy from seeking review of issues which could have been raised on the appeal from the intermediate order. (26) If these situations seem hypothetical and unlikely to occur, my experiences have been different. My telephone rings when attorneys discover they are facing an issue under CPLR 5501(a)(1) and In re Aho. In fact, lately, I am seeing an epidemic of In re Aho dilemmas.

   Of course, an on-time notice of appeal solves nothing if the notice is otherwise defective. A notice of appeal must "designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken." (27) These requirements can also be blown. (28) Thankfully, the CPLR may allow these types of errors to be corrected. (29) To guard against them, some practitioners attach the judgment or order appealed from to their notice of appeal to eliminate doubt about what they are appealing from.

   The CPLR also requires that the notice describe the part of the judgment or order being appealed from. (30) In one case, where the appellant's notice of appeal indicated that the appeal was taken only with respect to the plaintiffs first and second causes of action, the appellant's contentions about the third and fourth causes of action were held "not properly before [the] [c]ourt." (31) To avoid this problem, may practitioners provide in their notice of appeal that the appeal is from "each and every part" of the order or judgment or each and every part of the order or judgment from which the appellant is aggrieved. (32)

   It is not enough to file or serve the notice of appeal within thirty days. The appellant must do both. (33) I have observed, several times, where only one of the required steps was done. In those cases, the error can be excused by way of a motion to either "the court from or to which the appeal is taken," and upon a showing of "excusable neglect." (34) The error has also been excused where the "appellant timely files the notice of appeal in the appropriate court and there is no evidence that the opposing party has been prejudiced by the lack of service," in which case the failure to serve has been held "harmless error." (35) It must be emphasized, however, that this "safety net" exists only where one of the steps was taken: a notice of appeal was filed or served. (36) If neither was done, the appellant is likely doomed.

   So far, the discussion has assumed that an "appeal of right" was authorized. Appeals from judgments may be taken as of right to the appellate division, (37) and there is an expectation among New York practitioners (in contrast to our friends in federal court) that even non-final orders are appealable of right. This expectation arises from the section of the CPLR that authorizes appeals to the appellate division from non-final orders which...