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An Illusory Right to Appeal: Substantial Constitutional Questions at the New York Court of Appeals

Meredith R. Miller, Touro College, Jacob D. Fuchsberg Law Center

Abstract

The jurisdiction of the New York Court of Appeals has long been shrouded in mystery. When the Court dismisses an appeal, it provides a boilerplate, one-sentence decretal entry, which gives the litigants little, if any, meaningful indication of the Court’s reasons for dismissal. In February 2010, however, the world received a rare glimpse into the Court’s jurisdiction when, in Kachalsky v. Cacace, 925 N.E.2d 80 (N.Y. 2010), Judge Robert Smith dissented from the Court’s sua sponte dismissal of the appeal. Judge Smith voted to retain the appeal, arguing that the Court was using the requirement of “substantiality” to invoke discretion it did not have on an appeal as of right. The Court’s civil jurisdiction generally covers two types of cases: (1) those the Court hears “as of right” pursuant to Civil Practice Law Rules (“CPLR”) 5601 and (2) those for which the Court has granted permission to appeal pursuant to CPLR 5602. In Kachalsky, Judge Smith opined that the definition of “substantiality” had become “so flexible” that it, in effect, conferred on the Court “discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602.” In Kachalsky, Judge Smith pointed to a problematic policy. The Court’s practice of requiring that an appeal as of right pursuant to CPLR 5601(b) raise a “substantial” constitutional question is not loyal to the explicit text of the CPLR or the New York State Constitution. Indeed, to the extent that the requirement invokes discretion for the Court to determine which appeals on constitutional grounds to retain, it subverts the basic structure of both the CPLR and the State Constitution, which contemplate appeals as of right as distinct from appeals that necessitate permission from the Court. The justification for the requirement of “substantiality” is to prevent the creativity of counsel in contriving constitutional questions to gain the right to appeal. However, based upon review of nearly 200 decisions appealed from and dismissed sua sponte on the ground that “no substantial question was directly involved,” this Article argues that the concern about frivolous constitutional claims is overstated. Moreover, existing limitations on appealability and reviewability serve to hinder counsel from inventing frivolous constitutional questions for the sake of an appeal. Thus, this Article proposes the elimination of the “substantiality” requirement, which renders illusory the “right” to appeal on constitutional grounds.

Suggested Citation

Meredith R. Miller. "An Illusory Right to Appeal: Substantial Constitutional Questions at the New York Court of Appeals" 31 Pace L. Rev. 583 31.2 (2011): 583.
Available at: http://works.bepress.com/meredith_miller/5