Thomas R. Newman and Steven J. Ahmuty, Jr. ()
In Hain v. Jamison, 28 N.Y.3d 524 (Dec. 22, 2016), the Court of Appeals addressed two recurring jurisdictional issues in the context of summary judgment: the “finality” requirement and the availability of affirmative relief to an nonappealing party. The appellate division’s order granted the motion of defendant Drumm Farm (Farm) for summary judgment dismissing the complaint and cross claims against it. The remaining defendants (Jamisons) moved for and were granted permission to appeal to the Court of Appeals from the part of the order that dismissed their cross claims against Farm. The plaintiff, however, did not cross move for permission to appeal from the part of the order that dismissed his complaint against Farm. The Court of Appeals reversed and reinstated the Jamisons’ cross claims, but declined to reinstate the plaintiff’s complaint against Farm.
Although the Appellate Division’s order did not dispose of all claims among all parties in the action (the classic definition of “finality”), the court concluded that the order should be treated as final for purposes of determining its appealability because it finally adjudicated all claims against one of the defendants, Farm. The court further concluded that its review of the appellate division’s order was limited to the dismissal of the Jamisons’ cross claims, and it lacked power to grant affirmative relief to the plaintiff, who had not appealed from the order.
Hain arose from a tragic accident in which the Jamisons’ vehicle struck and killed the plaintiff’s wife (the decedent), who had stopped her vehicle on the southbound side of the road when she encountered a young calf owned by Farm wandering on or near the road. The decedent exited her vehicle to assist the calf, which had escaped from its enclosure at the farm. The decedent and the calf were in the northbound lane when the Jamisons’ vehicle struck them. The plaintiff executor sued the Jamisons and Farm for personal injury and wrongful death. The complaint alleged that the Jamisons were negligent in the ownership and operation of their vehicle, and that Farm was negligent in failing to maintain its fence and restrain or retrieve the calf. The Jamisons and Farm asserted cross claims for contribution and indemnification.
Farm moved for summary judgment dismissing the complaint and cross claims asserted against it, arguing that its alleged negligence in failing to restrain the calf was not a proximate cause of the decedent’s death. Rather, Farm argued, the only proximate cause of the decedent’s death was her intervening and unforeseeable act of entering the roadway to assist the calf, and the Jamisons’ negligent operation of their vehicle. The plaintiff and Jamisons opposed Farm’s motion.
The Supreme Court denied Farm’s motion for summary judgment, holding that it could not conclude that, as a matter of law, the decedent’s act of entering the roadway to assist the calf broke the chain of causal connection between Farm’s alleged negligence and the accident. The Appellate Division, Fourth Department, reversed, holding that “Farm established that any negligence on its part in allowing the calf to escape merely ‘created the opportunity for plaintiff to be standing [in the roadway], [but] it did not cause [her] to stand’ there. * * * . Thus, Drumm Farm established as a matter of law that its ‘alleged negligent act, at most, caused the [calf to wander] out of the field, which was not the immediate cause of the accident’” (see 130 A.D.3d 1562, 1563-64) (emphasis and brackets in original). The Fourth Department dismissed the complaint and cross claims against Farm.
The Jamison defendants moved for and were granted permission by the Court of Appeals to appeal to that court. See 26 N.Y.3d 910. The plaintiff did not cross move for such relief. In an opinion by Judge Leslie E. Stein, the Court of Appeals reversed the appellate division’s order, insofar as appealed from by the Jamisons, and reinstated their cross claims against Farm. The court held that causation presented a question of fact because “a jury could reasonably conclude that it is foreseeable that a motorist who encounters such an animal on a rural roadway would attempt to remove the animal from the thoroughfare. Such conduct cannot, as a matter of law, be considered so ‘extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct,’ that it breaks the chain of causation.” See 28 N.Y.3d at 534 (emphasis in original). Despite its finding of a triable issue as to causation with respect to Farm, the court did not reinstate the plaintiff’s complaint against Farm because he had not appealed from the appellate division’s order.
The Party Finality Doctrine
This brings us to the jurisdictional issues in Hain. Although “finality” is a basic limitation on the Court of Appeals’ jurisdiction, and the appellate division’s order was non-final in that it only granted summary judgment to Farm and left pending the action as between the plaintiff and the Jamisons, the court “elected to treat the Appellate Division order as final with respect to the Farm under the doctrine of party finality.” See 28 N.Y.3d at 528 n. 2. As discussed below, party finality is an offshoot of the “implied severance” doctrine.
By way of background, the concept of “finality” is central to the civil subject matter jurisdiction of the Court of Appeals under article VI, §3(b)(1), (2) and (6) of the State Constitution and the related statutory provisions (see CPLR 5601 and 5602). In contrast to the appellate division, which can review almost any lower court judgment or order regardless of finality, Court of Appeals review as of right is generally limited to final determinations (CPLR 5601). Finality is also a prerequisite for permission to appeal under CPLR 5602(a) and (b). “Underlying the finality requirement is the need to conserve judicial resources by generally applying a strict policy against piecemeal appeals in a single litigation.” See A. Karger, The Powers of the New York Court of Appeals, §3:1, p. 36 (3d ed. 2005).
As the Court of Appeals aptly observed in Burke v. Crosson, 85 N.Y.2d 10, 15 (1995), “[t]he concept of finality is a complex one that cannot be exhaustively defined in a single phrase, sentence or writing.” The court in Burke nevertheless offered the following working definition of finality: “A ‘final’ order or judgment is one that disposes of all the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters. Under this definition, an order or judgment that disposes of some but not all of the substantive and monetary disputes between the same parties is, in most cases, nonfinal” (id. at 15-16).
The finality requirement has limited exceptions in New York practice. Certain exceptions are statutory, such as the provision for an appeal from a non-final order by permission of the appellate division on a certified question (CPLR 5602(b)(1)), or an appeal by stipulation for judgment absolute (CPLR 5601(c)). Other exceptions have been judicially created, including “situations where the causes of action or counterclaims that have been resolved may be deemed to be ‘impliedly severed’ from those that have been left pending. Where implied severance is available, the order resolving a cause of action or counterclaim is treated as a final one for purposes of determining its appealability or reviewability.” Burke, 85 N.Y.2d at 16.
“Claim finality” is one branch of implied severance. Following the Burke decision, the availability of implied severance in multiple claim situations is very limited. “[A]n order that disposes of some but not all of the causes of action asserted in a litigation between parties may be deemed final under the doctrine of implied severance only if the causes of action it resolves do not arise out of the same transaction or continuum of facts or out of the same legal relationship as the unresolved causes of action.” 85 N.Y.2d at 16.
The other branch of implied severance is “party finality.” Under this doctrine, “[a]n order which completely disposes of the claims of one party but leaves pending issues as to another party is final as to the former but not the latter.” See Sontag v. Sontag, 66 N.Y.2d 554, 555 (1986). “The underlying rationale for this exception to the finality rule, especially as respects cases in which the determination is adverse to such a party, is that there is no sound basis for postponing the appealability of such an essentially final determination until after the conclusion of often protracted proceedings with which the particular party is in no way concerned.” See Karger, op. cit. at §5:9, p.129.
Hain satisfied the criteria for party finality. By its order dismissing the complaint and cross claims insofar as asserted against Farm, the appellate division completely disposed of all claims with respect to that party, and only left pending the plaintiff’s action against the Jamison defendants. Furthermore, this determination was adverse to the Jamisons because their cross claims against Farm were dismissed. Thus, the Court of Appeals elected to treat the Appellate Division’s order as final with respect to Farm under the doctrine of party finality.
Effect of Failure to Appeal
As noted, having passed the “finality” threshold, the Jamison defendants moved for and were granted permission to appeal to the Court of Appeals from the part of the appellate division’s order that dismissed their cross claims against Farm. The plaintiff did not cross move for permission to appeal from the part of the order that dismissed his complaint against Farm. The Court of Appeals reversed and reinstated the Jamisons’ cross claims, but declined to reinstate the plaintiff’s complaint against Farm, stating: “Our review of the Appellate Division order is ‘limited to those parts of the judgment that have been appealed and that aggrieve the appealing party,’ and we generally may not grant affirmative relief to a nonappealing party. Inasmuch as plaintiff did not seek leave to appeal to this Court, we may not, on this appeal, reinstate the complaint as asserted by non-appellant plaintiff against the Farm.” See 28 N.Y.3d at 534 n. 3) (citations omitted).
In Hecht v. City of New York, 60 N.Y.2d 57 (1983), the Court of Appeals limited an appellate court’s scope of review of a final judgment or order rendered against multiple parties but appealed by only one. The court noted that “[g]enerally, an appellate court cannot grant affirmative relief to a nonappealing party unless it is necessary to do so in order to accord full relief to a party who has appealed,” and that “neither CPLR 5522 ['Disposition of appeal'] nor any other statutory or constitutional authority permits an appellate court to exercise any general discretionary power to grant relief to a nonappealing party.” Id. at 60, 63 (material in brackets added). The Court held that except for “rare occasions” in which “the grant of full relief to the appealing party * * * necessarily entail[s] granting relief to a nonappealing party,” an appellate court lacks power to grant affirmative relief to a party who has not cross-appealed to it. Id. at 62. Based upon these principles, the court in Hecht ruled that a defendant found liable at trial, but which did not appeal from the judgment, could not receive the benefit of a reversal obtained at the appellate division by a co-defendant that did appeal.
The following lesson emerges from Hain. When one aggrieved party has appealed from a judgment or order, or moved for permission to appeal, any remaining aggrieved party should analyze whether the appellant’s points of error, if accepted by the appellate court, would require a reversal or modification of the judgment or order as to all aggrieved parties in order to accord full relief to the appealing party. If the answer to that question is “no” (as was the case in Hain), then, depending on the perceived merits of the appeal, serious consideration should be given to a cross-appeal or cross-motion for permission to appeal so as not to be left holding the bag.