In a rare written dissent, Judge Robert S. Smith has taken his six colleagues on the New York Court of Appeals to task for not finding the “substantial constitutional question” that would allow them to review a judge’s denial of a pistol permit to a Westchester County, N.Y., attorney.

Smith said the refusal of the court to hear an appeal in Kachalsky v. Cacace (pdf), SSD4, highlights the “amorphous definition” that the judges have come to attach to “substantial” and how it is at odds with provisions in Article 6, §3(b)(1), of the state Constitution and provisions of CPLR 5601 and 5602 governing when the court recognizes a right to appeal in civil cases.

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