Academic journal article Albany Law Review

New York Appeals: An Evolving Tradition

Academic journal article Albany Law Review

New York Appeals: An Evolving Tradition

Article excerpt

The Albany Law Review is delighted to present its second annual issue of New York Appeals. The goal of the New York Appeals issue is to elucidate emerging issues in appellate practice faced by judges on the bench, attorneys in practice, and professors and students involved in research and scholarship. Our focus includes interpretations of substantive law, explorations of the conflicts between the appellate divisions (New York's intermediate courts), and interpretational conflicts between the New York State Court of Appeals (our state's highest court) and the Second Circuit Court of Appeals.


As part of the Albany Law Review's decision to continue the new tradition of the New York Appeals issue, we must pay tribute to esteemed Presiding Justice Anthony V. Cardona of our very own Third Department, located right around the corner from Albany Law School. In light of his unwavering support of the Albany Law Review, especially the annual New York Appeals issue, as well as Albany Law School at large, we have renamed this annual issue The Anthony V. Cardona Annual Issue of New York Appeals, in keeping with last year's dedication of the inaugural issue to Justice Cardona. The Albany Law Review extends its most sincere gratitude to Justice Cardona, and we refer our readers to the tribute published in the inaugural issue of New York Appeals, (1) reprinted here in part:

   Justice Cardona is a true friend to the Albany Law School community
   who we now know as much for his compassion, warmth, and wit as we
   do for his status as a dedicated public servant. Genuinely
   interested in our success, he always offers a kind word of
   encouragement or piece of advice contributing to our growth as
   students, lawyers, and, most importantly, people. (2)

Thus, it is with continued admiration and gratitude that we are pleased and honored to dedicate our annual New York Appeals issue to Justice Cardona.


This issue of New York Appeals includes articles that strike directly at the heart of New York law. Throughout the creation and production of this second New York Appeals issue, the focus has centered upon the New York practitioner. Consequently, this issue consists solely of "voices from the field" as all of the articles in this edition were authored by practicing attorneys. Although not necessarily by design, with this focus the Albany Law Review provides practitioners with an additional resource, albeit in law review form, for pressing legal issues--a law review issue, essentially, by attorneys for attorneys.

Appropriately, many of the articles examine specific provisions of New York's Civil Procedure Law and Rules ("CPLR"). An overview of recent interpretations of the CPLR is presented by Barbara D. Goldberg, Partner and Head of the Appeals Department at Martin Clearwater & Bell LLP, and Richard J. Montes, Partner at Mauro Lilling & Naparty, LLP. (3) With a more particularized focus, we include an article examining CPLR 3201(b) and its pleading standard, authored by James G. Cavoli and Matthew J. Laroche, (4) both of Milbank, Tweed, Hadley & McCloy LLP. Issues regarding appeals under CPLR 5501(a)(1) and the preservation of an argument on appeal are examined by Joseph F. Castiglione. (5) This article discusses when a prevailing party can be a sore winner on appeal, specifically addressing the "aggrievement" requirement, and the circumstances under which a prevailing party can assert alleged errors below that "necessarily affect" the final judgment. (6) Finally, David L. Ferstendig, Editor of the Weinstein, Korn & Miller treatise, provides a commentary on nonparty disclosure under New York law. (7) Mr. Ferstendig specifically draws attention to the uncertainty surrounding CPLR 3101, and identifies the inconsistency between the departments, as well as the importance for practitioners of knowing how each department has interpreted this particular provision. …

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