Academic journal article Albany Law Review

Dependent upon the Kindness of Strangers: The Circumstances in Which a Non-Appellant May Be Awarded Affirmative Relief in the New York Courts

Academic journal article Albany Law Review

Dependent upon the Kindness of Strangers: The Circumstances in Which a Non-Appellant May Be Awarded Affirmative Relief in the New York Courts

Article excerpt

It is a strange and perplexing phenomenon.

In New York, it is exceedingly simple for a party to take an appeal. Although all of New York's appellate courts have various forms required for the would-be appellant to complete and file, all a party need do to jurisdictionally take an appeal is: (a) prepare a notice of appeal (which need not be a work of art, and typically says nothing more than that the party appeals from all parts of an identified order or judgment); (1) (b) serve the notice of appeal on the other parties within thirty days of service of the judgment or order (with notice of entry) that is being appealed; and (c) file the notice of appeal, within the same time frame, in the court from which the appeal is taken. (2)

Not easy enough to take an appeal? Well, Civil Practice Law and Rules ("CPLR") 5520(a) makes it even more difficult to go wrong. As the Court of Appeals recently had occasion to demonstrate, (3) if the would-be appellant gets either the service part right or the filing part right, the court from or to which the appeal is taken can, in its beneficence, excuse the irregularity in the part that did not go so well.

Is thirty days not enough time to prepare, file, and/or serve a document that is likely no more than a page long? The statutes enacted by legislators who often empathize with lawyers (since the legislators often are lawyers) again intervene to protect lawyers from their own follies. If the order or judgment that is being appealed was served by overnight mail, another day is added, as would apply to service of virtually any document by overnight mail. (4) If the order or judgment was instead served by ordinary mail, five days are added. (5) In fact, as a result of a 1999 amendment, the would-be appellant gets an extra five days for ordinary mailing even if it was the would-be appellant who served the order or judgment by mail, (6) a provision that some might deem generous inasmuch as the would-be appellant need not, one would think, actually wait for the mail to arrive at its destination before reading the document that he or she is mailing.

But what about those instances in which the party may have a valid complaint with some aspect of the judgment but would just as soon let the matter rest and allow the case to conclude so long as the other parties are also willing to do so? And what about the party who believes that an interlocutory order was wrongly decided but is content to wait until final judgment is entered to get the matter sorted out on appeal? (7) For these litigants who would prefer to appeal if and only if the adversary does so, New York law provides the useful mechanism of the cross-appeal. The recalcitrant appellant can wait and see if any of the parties are going to appeal, and, if one of the other adversarial parties in fact does so, has ten days from service of the notice of appeal or the remainder of the thirty-day period--whichever is longer--to file a cross-appeal. (8) The same provision also provides a second chance for the would-be appellant who actually meant to appeal but just neglected to do so.

In this context, the strange and perplexing phenomenon is that, even with statutes that virtually defy the would-be appellant to "blow" the notice of appeal requirement, so many would-be appellants nonetheless do so. More to the point, so many would-be appellants with valid claims for appellate relief somehow manage not to timely and properly appeal in cases in which one or more of the other parties does appeal the order or judgment in issue.

This article examines the circumstances in which affirmative relief may be granted to that unfortunate breed: the non-appealing party who, on the merits, actually deserves affirmative relief. The article also examines whether, or to what extent, the non-appellant's rights may have been broadened by the Second Department's 2008 ruling in Koscinski v. St. Joseph's Medical Center. (9)

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