Thomas R. Newman and Steven J. Ahmuty Jr. ()
The fact that a losing party may take an appeal from a judgment or order to the Court of Appeals, either as of right or by permission, does not guarantee de novo review of every issue in the case. The concepts of appealability and reviewability are different, especially in Court of Appeals practice.
Appealability is governed by CPLR 5601 (“Appeals to the court of appeals as of right”) and 5602 (“Appeals to the court of appeals by permission”), and relates to “whether or not, and under what circumstances and in what manner, whether as of right or by permission, an appeal may be taken to the Court of Appeals.”1 Reviewability is governed by CPLR 5501 (“Scope of review”), and relates to “what issues, of law, fact, or discretion, are open for review in the Court of Appeals after the appeal is properly lodged there.”2
This month, we examine Rocky Point Drive-In, L.P. v. Town of Brookhaven3 in which the Court of Appeals granted the appellant’s motion for leave to appeal in a case involving different factual findings of the trial court and Appellate Division on the same record, but limited its review to which factual findings more nearly comported with the weight of the evidence. The Court of Appeals found “no basis to overturn” the Appellate Division’s factual determinations and affirmed.
By way of background, the Appellate Division and Appellate Term review “questions of law and questions of fact,” the latter including exercises of discretion.4 In contrast, the Court of Appeals reviews “questions of law only,” with one exception discussed below.5
The Judiciary Article of the New York State Constitution expressly limits the jurisdiction of the Court of Appeals to “the review of questions of law except where the judgment is of death, or where the appellate division, on reversing or modifying a final or interlocutory judgment in an action or a final or interlocutory order in a special proceeding, finds new facts and a final judgment or a final order pursuant thereto is entered.”6 CPLR 5601(b) only expounds upon the jurisdiction conferred by the Constitution.
Given this significant limitation on the Court’s power to review factual determinations made in the lower courts, affirmed factual findings by either a jury or a trial judge sitting as the trier of fact are conclusive on the Court of Appeals.7 Where there has been a jury trial, the rule applies to express findings of fact made in answers to interrogatories, as well as those facts necessarily implicit in the verdict. Such findings are binding on the Court of Appeals, however, only if there is sufficient evidence in the record to support them, and the Court may make its own determination of the legal sufficiency of the evidence.8
An exception to this rule is the Court of Appeals’ power to review fact questions arising in civil nonjury cases where the Appellate Division has reversed or modified a final or interlocutory determination and “has expressly or impliedly found new facts and a final judgment pursuant thereto is entered” (CPLR 5501[b]). The rationale for this exception is that every losing party is entitled to at least one appellate review of a factual determination, and the Court of Appeals is the only court in a position to review new factual findings made by the Appellate Division.
In such cases, the Court of Appeals has the following three options: (1) it may choose between the alternative findings of the lower courts and give additional weight to those of the trial judge, who had the advantage of seeing and hearing the witnesses;9 (2) it may give a preference to the new findings of the Appellate Division, since that court possesses all of the broad powers of the trial court in addition to its power of review;10 or (3) it may make its own determination of disputed questions of fact, and not merely confine its inquiry to which set of findings below are more nearly in accord with the weight of the evidence.11
New Findings of Fact
This brings us to Rocky Point, which arose from a zoning dispute. The landowner Rocky Point sought to develop a parcel located in the town of Brookhaven as a site for a Lowe’s Home Improvement Center. The town sought to rezone property that included Rocky Point’s parcel from “J Business 2″ (J-2) to commercial recreation (CR). The J-2 classification permitted retail stores but prohibited “commercial centers” of the kind that Rocky Point sought to build. The proposed Lowe’s Center would not have complied with the CR zone classification. Shortly before a Town Board meeting to discuss rezoning the subject parcel to CR, Rocky Point’s predecessor in interest submitted a site plan application to the town for the Lowe’s Center to be built on the parcel. The town declared the parcel rezoned to CR and declined to process the application.
Rocky Point filed suit seeking a declaratory judgment that, under the “special facts” exception, its application was subject to review under the previous J-2 zoning classification because the town had unduly delayed the review of the application. After a non-jury trial, the trial court found that the town had intentionally and in bad faith delayed processing Rocky Point’s application and selectively enforced the prohibition against commercial centers in a J-2 district. The trial court concluded that the foregoing “special facts” entitled Rocky Point to have its application reviewed in accordance with the J-2 classification that was in effect on the day that its application was filed.
The town appealed and the Appellate Division reversed, finding that the evidence adduced at trial did not support the trial court’s factual determinations regarding undue delay and selective enforcement:
In reviewing a trial court’s findings of fact following a nonjury trial, this Court’s ‘authority is as broad as that of the trial court’ and includes the power to ‘render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses.’
The Supreme Court’s determinations that the defendants intentionally and in bad faith delayed processing [Rocky Point's] site plan application, and selectively enforced the prohibition against commercial centers in a J-2 zoning district against [Rocky Point], were not warranted by the facts adduced at trial. The record does not support the determinations of undue delay and bad faith on the part of the [town], or that the [town] selectively enforced the prohibition against commercial centers in J-2 zoning districts, targeting [Rocky Point's] application with animus.12
The Court of Appeals granted Rocky Point permission to appeal from the Appellate Division’s decision. On appeal, Rocky Point asserted that the “special facts” exception applied to its case, even though it did not technically meet the J-2 requirements, because the town historically ignored zoning requirements. Rocky Point further asserted that the town had targeted it for selective enforcement, while intentionally failing to impose zoning requirements on similarly situated applicants. Rocky Point argued that, therefore, it should not be subjected to the strict language of the zoning requirements. These were the same factual contentions that Rocky Point had made to the Appellate Division, which had rejected them.
The Court of Appeals held that in cases where the trial court and Appellate Division have based their decisions on “weight of the evidence” but reached different conclusions, the Appellate Division’s decision itself constitutes a new finding of fact. In such cases, the Court further held, the scope of its review is limited to the issue of which factual findings more nearly comported with the weight of the evidence. The Court affirmed the Appellate Division’s decision, concluding that its factual findings met this standard:
The Appellate Division rejected [Rocky Point's] claim [of undue delay and selective enforcement], based on a lack of factual support in the record. When the Appellate Division decides that a factual finding is against the weight of the evidence, that itself is a new finding of fact. In such case, our review of the Appellate Division’s decision is limited; we review the record to determine which factual findings ‘more nearly comported with the weight of the evidence.’
The Appellate Division, reviewing the facts, disagreed with the Supreme Court’s conclusion that [the town] intentionally and in bad faith delayed processing [Rocky Point's] site plan application, and selectively enforced the prohibition against commercial centers in J-2 zoning districts against [Rocky Point]. The record clearly demonstrates that similarly situated applicants referred to by Rocky Point were not similarly situated at all; they either fell within an exception or were in compliance with the J-2 classification. Thus, the Appellate Division’s finding more nearly comports with the weight of the evidence.13
The lesson that emerges from Rocky Point and similar cases is clear. In deciding whether to pursue an appeal to the Court of Appeals, the would-be appellant must consider not only whether the appeal may be taken, either as of right or by permission (i.e., the concept of appealability), but also whether the issues sought to be raised are open for review in the Court of Appeals (i.e., the concept of reviewability). Failure to consider both of these concepts may result in a Pyrrhic victory in which the Court grants leave but then engages in a limited review of the Appellate Division’s decision and upholds that decision.
Thomas R. Newman is of counsel to Duane Morris. Steven J. Ahmuty, Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.
1. See Arthur Karger, The Powers of the New York Court of Appeals, (3rd Ed. 2005), p.4.
3. 21 N.Y.3d 729 (Nov. 14, 2013).
4. CPLR 5501(c) and (d).
5. CPLR 5501(b).
6. NY Const., Art. VI, §3(a).
7. See, e.g., Ashland Management Inc. v. Janien, 82 N.Y.2d 395, 407 (1993) (trial court determined defendant was not guilty of misappropriation and the Appellate Division affirmed; “[t]his finding is supported by evidence in the record and is, therefore, beyond the scope of our review.”).
8. See, e.g., Eiseman v. State of New York, 70 N.Y.2d 175, 184 (1987) (“These affirmed factual findings have support in the record and are therefore beyond the scope of our review.”).
9. See, e.g., Oelsner v. State of New York, 66 N.Y.2d 636, 360 (1985) (“We conclude that the findings of the trial court more nearly comport with the weight of the evidence,” noting that the trial court expressed concern at the principal witness’ “lack of information and memory in certain instances.”)
10. See, e.g., People ex rel. MacCracken v. Miller, 291 N.Y. 55, 61-62 (1944).
11. See, e.g., Matter of Hime Y., 54 N.Y.2d 282, 286 (1981) (“In light of the disagreement between the courts below, this court reviews the record to determine which findings conform to the weight of the evidence.”).
12. See, 93 A.D.3d 653, 654 (2d Dept., 2012) (citations omitted).
13. See, 21 N.Y.3d at 737-38 (citations omitted).