What Does it Mean if Your Appeal as of Right Lacks a
Experienced appellate practitioners in New York who read the advance sheets or the decision lists of the New York Court of Appeals on its website are familiar with the regular short entries of the court regarding the dismissal of appeals taken as of right under New York Civil Practice Law and Rules (CPLR) section 5601. One such frequent entry is \\\"[a]ppeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.\\\" There is no further explanation of what this means. The frequency of this entry and similar entries dismissing appeals or motions for leave to appeal on curtly stated grounds demonstrates how jealously the court guards its jurisdiction, but provides little guidance to would-be appellants on how to convince the court to retain jurisdiction of an appeal on constitutional grounds. Although not unheard of, there is rarely a dissent when the court dismisses an appeal taken as of right on such jurisdictional grounds.
This changed recently when Judge Robert Smith not only dissented from such a dismissal, but criticized the court‘s internal jurisdictional precedents in Kachalsky v. Cacace. This was the first dissent from a dismissal of an appeal taken as of right for lack of a substantial constitutional question in eight years. Judge Smith‘s dissent has generated comments from court watchers, and prompted this author to investigate this grounds for an appeal as of right under CPLR 5601(b)(1) and several important questions regarding the court‘s dismissal of such an appeal for lack of \\\"substantiality.\\\"