Recent interpretations of the CPLR by New York appellate courts.

• Author: Goldberg, Barbara D.
• Position: Civil Practice Law and Rules

To borrow an analogy from Charles Dickens, New York's Civil Practice Law and Rules CCPLR") might appropriately be described as the "tale of two faces." (1) Or perhaps the better allusion is to Robert Louis Stevenson's "Strange Case of Dr. Jekyll and Mr. Hyde." (2) Certain provisions of the CPLR, as well as their interpretations by appellate courts, are forgiving and flexible. In fact, within its first four sections, the CPLR mandates a liberal construction of its provisions to "secure the just, speedy and inexpensive determination of every civil judicial proceeding." (3) The CPLR also empowers the judiciary to correct mistakes, omissions, and extend deadlines. (4) On the other hand, there is no shortage of cases where the CPLR has been interpreted with exacting rigidity, leaving in their wake a host of unsuspecting practitioners and litigants procedurally foreclosed from substantive relief. Recent appellate decisions interpreting various CPLR provisions reflect this continuing dichotomy, although the trend appears to be towards the more flexible and liberal interpretation where the circumstances of a particular case permit such a result. The following is a review of several of those cases from 2009 and 2010, as well as other notable cases involving the interpretation or application of various provisions in the CPLR. (5)

1. THE CPLR AS INTERPRETED IN 2009 & 2010: MORE JEKYLL THAN HYDE

   1. CPLR 5511--Who Is an "Aggrieved Party"?

      Since this article is within a publication dedicated to New York Appeals, perhaps the best place to begin is with an appellate issue. CPLR 5511 states: "An aggrieved party or a person substituted for him may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party." (6) Generally, determining if a party is "aggrieved" within the meaning of CPLR 5511 is a fairly straightforward analysis. If a party who asked for relief in the lower court received all the relief he or she requested, that party is not aggrieved. On the other hand, if a party asks for relief and that relief is denied, the party is aggrieved. Two recent cases, however, were not so straightforward, requiring the courts to interpret the meaning of "aggrieved party" in CPLR 5511.

      In Adams v. Genie Industries, Inc., a products liability case, the jury returned a verdict in favor of the plaintiff and awarded $500,000 in damages for total pain and suffering. (7) The trial court denied the defendant's motion to set aside the verdict, but granted the plaintiffs motion for an additur increasing the pain and suffering award to $1.25 million. (8) The defendant appealed and the Appellate Division affirmed. (9) The defendant then stipulated to the additur and the Appellate Division granted leave to appeal to the Court of Appeals. (10)

      In the Court of Appeals, the defendant raised no issue concerning the additur, but argued that the evidence was insufficient to establish liability or, in the alternative, that a new trial should have been ordered. (11) Before considering the merits of the appeal, the Court of Appeals addressed the issue of whether the defendant had a right to take an appeal from the Appellate Division's order after having stipulated to the additur. (12) The plaintiff argued that the defendant did not have a right to appeal, relying on two prior Court of Appeals cases, Batavia Turf Farms v. County of Genesee and Whitfield v. City of New York. (13) In Batavia and Whitfield, the Court had held that a party that stipulated to a reduction in damages in lieu of a new trial foreclosed all further review of other issues. (14) The rationale underlying this result was that "the stipulation did not merely resolve an issue, but also fulfilled a condition for the existence of the order in question." (15)

      In Adams, however, the Court of Appeals found that the rule in Batavia and Whitfield was not justified. Instead, the Court found "[i]t is unfair to bar a party from raising legitimate appellate issues simply because that party has made an unrelated agreement on the amount of damages." (16) Thus, notwithstanding the defendant's stipulation to the additur, the Court held that the defendant was an "aggrieved party" within the meaning of CPLR 5511. (17)

      Notably, the Court reached that determination without any reference to principles of statutory interpretation, or reliance on any other provisions in the CPLR. This was because "[w]hen the revisers of the laws on civil practice were in the process of creating the CPLR, they were unable to formulate a definition for the word 'aggrievement' and they determined to leave that definition to case law." (18) Thus, the definition of an "aggrieved party" is a judicial construct that can evolve, narrow, or expand based on the circumstances that are presented. Certainly, the rejection of the Batavia/Whitfield rule in Adams appears to be the more logical and appropriate result, in keeping with the mandate of CPLR 104 that the CPLR shall be liberally construed to achieve a "just" determination. Although the Court of Appeals ultimately rejected the defendant's arguments and affirmed the order of the Appellate Division, (19) Adams opens the door to a new trial, or even an outright dismissal in a case where a defendant may consider it provident to stipulate to an additur, and avoid the expense of a new trial on damages, but has a meritorious argument regarding the sufficiency of the evidence or the trial court's evidentiary rulings.

      Just one month after Adams was decided, the Second Department, in Mixon v. TBV, Inc., (20) faced a more complex scenario, requiring the court to determine the scope and meaning of "aggrievement." Mixon arose from a multi-car rear end accident involving an airport shuttle van, a limousine, and two other cars. (21) The plaintiffs, who were passengers in the van, commenced an action against the owner and operator of the van, as well as the owner and operator of the limousine. (22) The van defendants cross-moved for summary judgment dismissing the plaintiffs' complaint, and for summary judgment on the cross-claims asserted by the limousine defendants. (23) The Supreme Court granted both branches of the van defendants' motion. (24) The limousine defendants then appealed the order, seeking reinstatement of their cross-claims against the van defendants and reinstatement of the plaintiffs' complaint against the van defendants. (25) The plaintiffs did not file a notice of appeal, but attempted to file a brief seeking to reinstate the complaint against the van defendants. (26)

      The case raised two issues: (1) whether the limousine defendants were aggrieved by the dismissal of the plaintiffs' complaint against the van defendants and, as such, could seek to have the plaintiffs' complaint against the van defendants reinstated on the appeal; and (2) whether the plaintiffs, who failed to file a notice of appeal, could seek relief on the limousine defendants' appeal. (27) There was no issue as to whether the limousine defendants had the right to appeal from that part of the order which dismissed their cross-claims against the van defendants.

      To answer the first question, the Court analyzed whether aggrievement is concerned exclusively with the denial of relief, or whether it includes the adverse reasoning or rationale within the court's decision. (28) The court first looked at Stein v. Whitehead, decided before the adoption of CPLR article 14, which held that the defendant Whitehead could argue on appeal that the judgment dismissing the plaintiffs complaint against a co-defendant should be reversed. (29) In addition, the court looked at a long line of cases decided after the adoption of CPLR article 14, which found that where a defendant did not assert a cross-claim, counterclaim, or third-party claim, the defendant could not appeal from an order dismissing the plaintiffs complaint against a co-defendant. (30)

      To avoid throwing "any meaningful attempt to comprehensively define the concept of aggrievement into disarray," (31) the court in Mixon held that aggrievement is about relief, not reasoning. Thus, the court adopted a two-part test to determine if a party is aggrieved:

      First, a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part. (32) Applying that test, the court determined that the limousine defendants were aggrieved by the portion of the order that dismissed their cross-claims against the van defendants. The limousine defendants were not, however, aggrieved by that portion of the order that dismissed the plaintiffs complaint against the van defendants. (33)

      With respect to whether the plaintiffs could seek to reinstate their complaint against the van defendants, even though they did not file a notice of appeal, the court held that the plaintiffs could not seek such relief. (34) The court made a point of noting, however, that this did not necessarily mean that the plaintiffs were without a remedy in the trial court on a motion for leave to reargue, or on a subsequent appeal from a final judgment. (35)

      Both of these cases are notable in that Adams took a broader approach to defining an aggrieved party, while Mixon appears to have endorsed a narrower view. (36) Furthermore, in order to arrive at their conclusions, both courts had to reject or limit prior decisions and chart a new path. Whether they charted the same path is open to debate--although the defendant in Adams would surely qualify as an aggrieved party under the Mixon test--and will probably be the subject of continued discussion in the years to come until the Court of Appeals adopts the Mixon test, or otherwise refines the definition of aggrievement.

   2. CPLR 2103 & CPLR 5520--Service Pitfalls in Taking an Appeal

      Another case with implications for appellate practitioners was M...