Under CPLR 5501(c), “The appellate division shall review questions of law and questions of fact on an appeal from a judgment or order…” (emphasis added). “[T]here is a close affinity between questions of fact and questions of discretion, and the references in [the CPLR] to ‘questions of fact’…are routinely interpreted to include, as well, questions of discretion and exercises of discretion.”1
In discretionary matters, the Appellate Division’s scope of review is co-extensive with that of the trial court, and it may exercise its discretion independently. As the Court of Appeals stated in Brady v. Ottaway Newspapers Inc.,2 “since it is vested with the same power and discretion as Special Term, the Appellate Division may also substitute its own discretion even in the absence of abuse.”
