New York

Rare Dissent In New York Court of Appeals' Dismissal of Appeal As of Right

By Matthew Lerner

We've all read the short entries from the New York Court of Appeals regarding appeals as of right and motions for leave to appeal.  They're enigmatic to most.  The conciseness often demonstrates that the Court jealously guards its jurisdiction.

Although not unheard of, there is rarely a dissent when the Court dismisses an appeal as of right.  It's even more unheard of to have a dissent criticize the Court's internal jurisdictional precedent.

Yesterday, Judge Smith dissented in Matter of Kachalsky v. Casace regarding the Court's dismissal of the appeal as of right pursuant to CPLR 5601(b)(1).  The petitioner was challenging Penal Law sec. 400.00(2)(f), which requires "proper cause" for the issuance of a license to carry a concealed pistol or revolver.

It appears that the Majority determined that the appeal was not "substantial," which is a Court interpretation of one of the requirements of an appeal as of right under CPLR 5601(b).  The word "substantial" can be amorphous.  I once overhead a legendary Court of Appeals' Deputy Clerk tell a pro se petitioner that a "substantial" constitutional question is like a tough stain on a shirt, not like the ordinary daily stains that we all get and rub out with some elbow grease.  

In Casace, Judge Smith took issue with the Court's application of the "substantiality" requirement in the past and in the present appeal, noting that the Court's treatment conferred discretion similar to whether the Court should grant a motion for leave to appeal.  Clearly, the New York Constitution and the CPLR does not want the Court to treat appeals as of right as if it were determining whether to grant or deny motions for leave to appeal.

Although enigmatic in its own right, Judge Smith's dissent offers a rare peak behind the curtain that is the New York Court of Appeals' internal jurisdiction.

Full post as published by New York Civil Law on February 17, 2010 (boomark / email).