THE NEW YORK STATE BAR ASSOCIATION'S PROPOSED AMENDMENT TO CPLR 5501: A NON-SOLUTION TO A NON-PROBLEM.

Author:Nolan, Michael J.
Position:Civil Practice Law and Rules
 
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For the past several years, the Committee on Civil Practice Law and Rules (CCPLR) of the New York State Bar Association ("NYSBA") has proposed an amendment to CPLR 5501. (1) The stated purpose of the amendment is to overturn the Appellate Division, First Department's decision in Pollak v. Moore (2) and allow appeals from final judgments to bring up for review all prior orders, whether deemed "final" or "non-final." (3) At first blush, the amendment may not seem like a bad idea. The CCPLR is concerned that unwitting litigants, whose attorneys did not fully understand the concept of finality and its impact on appealability and reviewability on appeal, might understandably await the last determinative paper in the case to file their appeal, and such appeals should allow for review of all earlier orders necessarily affecting that final paper, whether the prior order is deemed final or non-final.

The problem with the proposed amendment is two-fold. First, the amendment almost surely would not have solved the alleged "problem" presented by Pollak v. Moore, because it is unlikely that any appeal from the purported final judgment in that case would have been allowed under the circumstances presented therein. (4) Second, and more fundamentally, the amendment would conflict with decades of Court of Appeals precedent on the concept of finality--precedent which is grounded in the State Constitution. (5) This presents a number of problematic potentialities. First, to the extent that it attempts to provide for a definition of finality that is different from Article 6, it may, at least as applied in some cases, be deemed unconstitutional. Second, even if it is not deemed unconstitutional, it may lead to new pitfalls in appellate practice--including potentially creating orders reviewable by the Appellate Division, but not by the Court of Appeals. Third, even if harmonized with the State Constitutional finality requirement, it may negate current appellate doctrine grounded in sound public policy--namely--party finality.

For these reasons, this article will argue that the proposed amendment is both unnecessary and unwise.

  1. BACKGROUND

    CPLR 5501 (a) (1) provides that "[a]n appeal from a final judgment brings up for review:... any non-final judgment or order which necessarily affects the final judgment." (6)

    The problem CPLR 5501 is meant to solve, derives from a somewhat unique aspect of New York appellate practice. Unlike the Federal system, which, as a general rule, allows intermediate appeals from final judgments only, (7) New York allows litigants an intermediate appeal from a broad array of non-final, or interlocutory, orders. (8) This liberal gateway to appellate review is limited, however, to the Appellate Division only; pursuant to Article 6 of the New York Constitution, appeals to the Court of Appeals are limited to judgments or orders "which finally determine[] an action or special proceeding." (9)

    What if a litigant does not wish to appeal an interlocutory order but instead, as he would be required to do in the Federal system, chooses to await the final judgment in the case? That is precisely what CPLR 5501 was designed to permit, allowing the litigant in such a case to raise not only those issues decided on the last go-round in Supreme Court, but also any issues decided upon earlier orders in the case. (10) Without CPLR 5501, appeals from interlocutory orders would effectively be mandatory, rather than simply permissible. (11)

    Historically, from the time of its enactment, the definition of "final" judgment (and, by necessary corollary, "non-final" judgment or order) in CPLR 5501 has been interpreted in accordance with the Court of Appeals' long-standing finality jurisprudence, (12) which, again, is grounded in Article 6 of the State Constitution. (13) This makes sense, since a contrary interpretation could, as discussed below, render it unconstitutional under Article 6, at least as applied to certain cases; at the very least, it would lead to serious conflicts with current Court of Appeals jurisdictional jurisprudence. The Court of Appeals has taken a pragmatic view of what constitutes a "final" order or judgment, one which emphasizes substance over form. (14) While impossible to completely sum up in one sentence, a "fair working definition" of finality is that "a 'final' order or judgment is one that disposes of all of the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters." (15)

  2. THE POLLAK CASE.

    In Pollak v. Moore, the Court issued a quintessential final order, after which the Clerk of the Court issued a clearly ministerial final judgment. (16) Pollak was an action for breach of contract, and related causes of action, based upon a real estate deal gone wrong. (17) Defendants collectively moved to dismiss all of the causes of action, and, by Order entered November 20, 2009, the Court granted the motion, ordering the complaint dismissed in its entirety against all of the defendants. (18) The Cover Sheet to the Order specifically stated that it constituted a "FINAL DISPOSITION," (19) though the order itself also specifically ordered "the Clerk to enter judgment in favor of Defendants." (20) The Plaintiff in Pollak filed a notice of appeal from the November 20, 2009 order, but for reasons not known, thereafter abandoned that appeal. (21) Almost a year later, Plaintiff made what was purported to be a motion (22) for a Judgment based upon the November 2009 order. (23) Notably, this motion was not made to the Court; rather, it was made to the Clerk of the Court, and it is not even clear from the record that it was made on notice. (24) The Clerk obliged, issuing a Judgment on September 14, 2010, which simply referenced the earlier order and "ADJUDGED that the complaint is dismissed." (25) Plaintiff then attempted to take a second bite of the apple by appealing from the September 2010 Judgment. (26) Quite appropriately, the First Department held that this was improper; having "abandoned his appeal from the November 20, 2009 order," plaintiff could not be allowed to "revive that appeal by the expedient of effecting a ministerial entry of judgment upon the final order after expiration of the time to perfect the initial appeal." (27) Citing Burke v. Crosson, the Court also noted that the November 2009 Order "disposed of all of plaintiff s claims," and was therefore the final order in the case. (28) It could not be brought up for review under CPLR 5501 by the later entered judgment, because regardless whether the "order 'affected' the judgment," the Order was a final one, rather than a non-final one that could be brought up under CPLR 5501. (29)

    It is all but impossible to see what grave injustice the CCPLR believed was done in Pollak that would necessitate an overhaul of CPLR 5501, and, therewith, decades of Court of Appeals finality jurisprudence. (30) At the outset, while in some cases finality can be a difficult concept to grasp, that was certainly NOT the case in Pollak. (31) It would be hard to envision a more "final" order than the original November 20, 2009, order in Pollak dismissing the case in its entirety. (32) That Order disposed of the entire action, leaving nothing of a non-ministerial nature left to do; indeed, the subsequent "judgment" did not even require any judicial action - it was a purely ministerial action by the Court Clerk. (33) Moreover, Plaintiff knew enough to appeal the November Order to allow him to abandon that appeal, and bring a new appeal upon a purely ministerial judgment would have served no useful purpose, and would have unnecessarily, and unjustly, prolonged the litigation.

  3. THE CCPLR'S RESPONSE

    The CCPLR believed that Pollak had somehow abrogated the rule that "[a]ppeals from non-final orders should be optional and not mandatory." (34) In the CCPLR's view, the final paper in the case must bear the label "judgment," rather than "order," period. (35) The CCPLR initially recommended that CPLR 5501 be amended to make clear that an...

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