Rochester, New York
MOTIONS IN LIMINE
An order limiting the presentation of evidence at trial is immediately appealable if the order effectively limits the presentation of the legal theory at trial. Conversely, if the order does not limit the presentation of a legal theory at trial, appeal will have to await final judgment.
Order Granting a Motion In Limine Is Appealable If It Effectively Limits the Presentation of a Legal Theory at Trial
The Fourth Department determined the order granting defendant's motion in limine was appealable because the order limited the theories available for use at trial, not merely the admissibility of evidence (which would not be appealable). The Fourth Department found that the motion in limine should not have been granted because it effectively precluded plaintiffs from introducing evidence of continuous representation which may have tolled the statute of limitations in this legal malpractice action:
In the order on appeal, the court granted defendants' motions to preclude plaintiffs from introducing evidence that any of the defendants represented plaintiffs with respect to any issue other than an issue in the context of a medical malpractice action against a physician. The effect of that order was to limit plaintiffs to introducing evidence that, in 1994, one of the defendants made a statement to Gary M. Dischiavi (plaintiff) indicating that the medical malpractice action was not viable.
We note at the outset that, although the parties do not address the appealability of this order determining a motion in limine, we conclude that plaintiffs may appeal from the order at issue ... . "Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission" ... . This Court has noted, however, that "there is a distinction between an order that limits the admissibility of evidence,' which is not appealable . . . , and one that limits the legal theories of liability to be tried' or the scope of the issues at trial, which is appealable" ... . Here, the order precluded the introduction of the vast majority of the evidence on the issue whether defendants continued to represent plaintiffs so as to toll the statute of limitations, and thus it is appealable because it limits the scope of the issues at trial ... . Dischiavi v Calli, 2015 NY Slip Op 01116, 4th Dept 2-6-15
NON-FINAL ORDER WHICH NECESSARILY AFFECTS THE FINAL ORDER
A non-final order, here the denial of a motion to change venue, which necessarily affected a final order was deemed appealable.
Motion for a Change of Venue Can Be Entertained in "Dangerous Sex Offender" Trials and Hearings Under the Mental Hygiene Law/Non-Final Order Which Necessarily Affects the Final Order Is Appealable
The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that "dangerous sex offender" trials and hearings under the Mental Hygiene Law are subject to the change of venue procedures under the CPLR. Here, after the motion for a change of venue was denied, the petitioner refused to attend the hearing. The Court of Appeals noted that the denial of the motion to change venue, although a non-final order, was appealable because it necessarily affected the final order:
Mental Hygiene Law § 10.08 (e) provides that "[a]t any hearing or trial pursuant to the provisions of this article, the court may change the venue of the trial to any county for good cause, which may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent." * * * The construction of the provision is somewhat ambiguous, in that, if the legislature intended to restrict a change of venue to article 10 trials, the reference to "any hearing or trial" would appear to be superfluous. We see no need to read a restriction into the statute limiting annual review hearings solely to the few counties where secure treatment facilities are located.
However, petitioner failed to establish good cause for the change of venue. As noted above, the statute provides that good cause "may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent" (Mental Hygiene Law § 10.08 [e]). The affidavit submitted in support of the motion did urge, generally, that it would be inconvenient and burdensome for unnamed family members and other potential witnesses to travel to Oneida County, but failed to identify a single witness that would testify on petitioner's behalf. Nor did the affidavit set forth the subject of any proposed testimony — let alone identify any information that would be potentially relevant to the issue of whether petitioner remained a dangerous sex offender in need of confinement. Therefore, the motion for a change of venue was properly denied. Matter of Tyrone D v State of New York, 2015 NY Slip Op 01301, CtApp 2-13-15
ARGUMENTS RAISED FOR THE FIRST TIME ON APPEAL
Determinative, purely legal arguments which do not raise new facts may be made for the first time on appeal.
Determinative, Purely Legal Arguments Raised for the First Time on Appeal May Be Considered by the Appellate Court
In the context of a mortgage foreclosure action, the First Department noted that arguments raised for the first time on appeal may be considered if the issues are determinative and present purely legal arguments without raising new facts. Bank of NY v Arthur, 2015 NY Slip Op 01392, 1st Dept 2-17-15
"The issue of whether an application to stay arbitration is "made" (CPLR 7503[c]) when the petition is filed, as opposed to when it is served, is a purely legal one; hence, it may properly be considered by this Court for the first time on appeal."
Twenty-Day Time-Limit for Making an Application to Stay Arbitration Starts When the Notice or Demand for Arbitration Is Received, Not When It Is Mailed/An Application for a Stay of Arbitration Is "Made" When It Is Filed/Appellate Court May Consider a Purely Legal Issue Raised for the First Time on Appeal
The First Department determined the twenty-day time-limit for an application to stay arbitration, when the notice or demand for arbitration is sent by mail, runs from the date the notice or demand is actually received. The court further noted that it can rule on a purely legal question raised for the first time on appeal:
Even though CPLR 7503(c) says, "An application to stay arbitration must be made by the party served [with a notice or demand for arbitration] within twenty days after service upon him of the notice or demand" (emphasis added), case law establishes that, when the notice or demand is mailed as it was in the case at bar "[t]he notice to arbitrate does not start the time to respond until receipt"... . * * *
The issue of whether an application to stay arbitration is "made" (CPLR 7503[c]) when the petition is filed, as opposed to when it is served, is a purely legal one; hence, it "may properly be considered by this Court for the first time on appeal" ... . In fact, an application is made when the petition is filed ... . Matter of Travelers Prop Cas Co of Am v Archibald, 2015 NY Slip Op 00465, 1st Dept 1-20-15
An appeal is not necessarily "moot" because the underlying order appealed from expired by the time the appeal is heard. Here the potential, future negative effects an expired order of protection (issued in a Family Offense proceeding) justified hearing the appeal.
Appeal Should Not Have Been Dismissed as Moot Because the Underlying Order of Protection Had Expired---There Are Significant Negative Consequences of the Issuance of an Order of Protection Which May Affect Appellant in the Future
The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the appeal by respondent, who had been found to have committed a Family Offense and against whom an order of protection had been issued, should not have been dismissed as moot because the order of protection had expired. The Court of Appeals explained that the issuance of the order of protection could have significant negative future consequences for the respondent:
"[i]n general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" .... The ability of an appellate decision to directly and immediately impact the parties' rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand "what ifs." On the other hand, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal ... .
In this case, the expiration of the order of protection does not moot the appeal because the order still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision. Because the order of protection on its face strongly suggests that respondent committed a family offense, the court in a future criminal case or Family Court proceeding would likely rely on the order to enhance a sentence or adverse civil adjudication against respondent. ** * *In the face of the substantial probability that the order of protection will prompt severely deleterious future legal rulings against respondent, an appellate decision in his favor will directly vindicate his interest in avoiding that consequence of the order.
The order of protection has other potential legal consequences that render it susceptible to appellate review. For example, in a future legal matter, an opposing party might be permitted to use the order of protection to impeach respondent's credibility .... . Furthermore, since the order of protection remains in a police computer database, albeit not in an active file (see Executive Law §§ 221-a ; 221-a ; see also 9 NYCRR 486.2 [g]), respondent may face additional law enforcement scrutiny and an increased likelihood of arrest in certain encounters with the police (see 9 NYCRR 486.3 [n] [declaring information obtained from the database to be relevant to the decision to arrest an individual]).[FN2]
Beyond its legal consequences, the order of protection places a severe stigma on respondent, and he can escape that stigma by prevailing on appeal ... . Matter of Veronica P v Radcliff A, 2015 NY Slip Op 01300, CtApp 2-13-15
NO APPEAL LIES FROM AN ORDER ENTERED BY CONSENT
"On appeal, a party may not collaterally attack an order entered on his or her consent."
Statute Prohibits Petition for Downward Modification of Support After Arrears Accrue/No Appeal Lies from an Order Entered by Consent
The Second Department determined father could not bring a petition for retroactive reduction of child support and a reduction of arrears after the arrears had accrued. The court noted that father could not appeal an order he consented to:
Family Court Act § 451 provides that the court "shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section." A court "ha[s] no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation" ... . Here, the father petitioned for a downward modification of his child support obligation after the arrears accrued. Thus, any modification was [*2]prohibited.
In any event, the Family Court properly concluded that the father was barred from relitigating the amount of arrears owed. The order dated July 11, 2012, which fixed the amount of arrears that the father owed, and provided the basis for the entry of the money judgment against him, was entered on his consent. On appeal, a party may not collaterally attack an order entered on his or her consent ... . Matter of Cadwell v Cadwell, 2015 NY Slip Op 00369, 2nd Dept 1-14-15
NO APPEAL (AS OF RIGHT) LIES FROM AN ORDER WHICH DOES NOT DECIDE A MOTION MADE ON NOTICE
The Second Department noted that no appeal lies of right from an order which does not decide a motion made on notice (CPLR 5701(a)(2)). Angelova v Ruchinsky, 2015 NY Slip Op 02081, 2nd Dept 3-18-15
INCOMPLETE APPENDIX REQUIRED DISMISSAL OF APPEAL
"Here, the plaintiff omitted from her appendix critical exhibits and material excerpts from transcripts of testimony. These omissions inhibit the court's ability to render an informed decision on the merits of the appeal. Accordingly, the appeal must be dismissed."
Appendix Incomplete---Appeal Dismissed
The Second Department dismissed an appeal because the appendix did not include necessary documents:
"An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal" ... . "The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent" (22 NYCRR 670.10-b[c]; see CPLR 5528[a]...), including "material excerpts from transcripts of testimony or from papers in connection with a motion" ..., and critical exhibits (see 22 NYCRR 670.10-b[c][vi]). Here, the plaintiff omitted from her appendix critical exhibits and material excerpts from transcripts of testimony. These omissions "inhibit the court's ability to render an informed decision on the merits of the appeal" ... . Accordingly, the appeal must be dismissed. Beizer v Swedish, 2015 NY Slip Op 01229, 2nd Dept 2-11-15
WHERE MOTION COURT DENIES A MOTION TO REARGUE BUT DEALS WITH THE MERITS OF THE MOTION, THE MOTION WILL BE DEEMED TO HAVE BEEN GRANTED AND IS THEREFORE APPEALABLE AS OF RIGHT
"As a general proposition, no appeal lies from the denial of a motion to reargue ... . Where, however, the court actually addresses the merits of the moving party's motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied ... . Accordingly, Supreme Court's April 2013 order is appealable as of right (see CPLR 5701 [a]  [viii]...)".
Sufficient Factual Allegations of Malpractice Not Made/Denial of Motion to Reargue Appealable as of Right Because the Merits Were Dealt with By the Motion Court
The Third Department, in affirming the dismissal of a legal malpractice complaint, determined that the fact that the motion court dealt with the merits of a motion to reargue while denying it rendered the denial appealable as of right:
As a general proposition, "no appeal lies from the denial of a motion to reargue" ... . Where, however, the court actually addresses the merits of the moving party's motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied ... . Accordingly, Supreme Court's April 2013 order is appealable as of right (see CPLR 5701 [a]  [viii]...). * * *
To survive defendants' motion to dismiss, it was incumbent upon plaintiff to, among other things, "plead specific factual allegations establishing that but for counsel's deficient representation, there would have been a more favorable outcome to the underlying matter" ... , i.e., an earlier — and successful — award of partial summary judgment on the issue of liability. This plaintiff failed to do. Rodriguez v Jacoby & Meyers, LLP, 2015 NY Slip Op 02151, 3rd Dept 3-19-15
NO APPEAL FROM ORDER MADE UPON APPELLANT'S DEFAULT EXCEPT AS TO MATTERS CONTESTED BELOW
"Where, as here, the order appealed from was made upon the appellants' default, review is limited to matters which were the subject of contest below ... . Accordingly, in this case, review is limited to the denial of the appellants' request for an adjournment ...".
In an Appeal from an Order Made Upon Appellant's Default, Only Matters Contested Below Can Be Heard---Here the Only Matter Contested Below Was Appellants' Request for an Adjournment to Obtain New Counsel---Relevant Review Criteria Explained
The Second Department noted that in an appeal from an order made upon the appellant's default, the only issues which can be reviewed are those which were contested below. Here only appellants' request for an adjournment to obtain new counsel was contested, therefore that was the only issue the appellate court could consider. The court determined the denial of the adjournment request was not an abuse of discretion. "In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding ... ." The court noted the appellants' lack of cooperation with their second counsel and their consent to second counsel's being relieved:
Where, as here, the order appealed from was made upon the appellants' default, "review is limited to matters which were the subject of contest below" ... . Accordingly, in this case, review is limited to the denial of the appellants' request for an adjournment ... .
The granting of an adjournment for any purpose rests within the sound discretion of the court ... , and its determination will not be disturbed absent an improvident exercise of that discretion ... . In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding ... .
Applying these principles here, the Supreme Court did not improvidently exercise its discretion in denying the appellants' request for an adjournment to obtain new counsel after their second counsel was relieved, as second counsel requested that the appellants permit it to be relieved of the obligation of representation, based on the appellants' lack of cooperation with second counsel, and the appellants thereupon voluntarily consented to second counsel's request ... . Hawes v Lewis, 2015 NY Slip Op 03127, 2nd Dept 4-15-15