The report (March 6) that the short-handed Appellate Division, First Department, must begin using four-judge panels notes the possibility that this can result in tie votes. There is another concern as well.
Pursuant to CPLR § 5601(a) when two Justices dissent on a question of the law in a civil case the losing side has the right to appeal to the Court of Appeals–there is no need to make an application for leave to appeal.
I recall that a former member of the Second Department maintained that in view of § 5601(a) four-judge panels are unfair to litigants because they reduce the chances of taking a case to the Court of Appeals: dissents by two out of four Justices are simply harder to come by than dissents by two out of five.
Norman A. Olch is a member and former chair of the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association.