5501 and appellate procedure

CPLR § 5501 Scope of review

Retta v 160 Water St. Assoc., L.P., 2012 NY Slip Op 03092 (1st Dept., 2012)

An appeal must be taken "within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry" (CPLR 5513[a]). The time period for filing a notice of appeal is nonwaivable and jurisdictional (see Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637 [1973]; Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417 [2007]).

Pursuant to CPLR 5501(a)(1), "[a]n appeal from a final judgment brings up for review . . . any non-final judgment or order which necessarily affects the final judgment" (see also Siegmund Strauss, Inc. v East 149th Realty Corp., 81 AD3d 260, 267 [2010], lv granted in part, dismissed in part 17 NY3d 936 [2011]). "[W]hen an appeal from an intermediate order is perfected together with an appeal from a final judgment, the appeal from the intermediate order must be dismissed and any error alleged, to the extent that it affects the final judgment, may be reviewed upon the appeal from the final judgment" (Chase Manhattan Bank, N.A. v Roberts & [*2]Roberts, 63 AD2d 566, 567 [1978]).

Gregware v City of New York, 2012 NY Slip Op 02578 (1st Dept., 2012)

Defendant Burtis Construction Co. did not oppose Romero and Romero-Valerezo's and Hasan and Dochenka Taxi's motions, and therefore may not appeal from the order that decided them (see Tortorello v Carlin, 260 AD2d 201, 205 [1999]).

Fix that appeal with CPLR § 5520 and othe good stuff

CPLR § 5520 Omissions; appeal by improper method

CPLR § 5512 Appealable Paper; entry of order made out of court

Republic Mtge. Ins. Co. v Countrywide Fin. Corp., 2011 NY Slip Op 06292 (1st Dept., 2011)

Initially, to reach the merits of plaintiffs' appeal, we exercise our discretionary authority, pursuant to CPLR 5520(c), to deem the inaccurate notice of appeal as valid to correct the procedural problem created here by plaintiffs' appeal from the order and not the judgment (Robertson v Greenstein, 308 AD2d 381 [2003], lv dismissed 2 NY3d 759 [2004]).

Clemons v Schindler El. Corp., 2011 NY Slip Op 06205 (1st Dept., 2011)

Purported appeals from decisions, Supreme Court, New York County (Judith J. Gische, J. and Ira Gammerman, J.H.O.), filed January 12, 2010, which, respectively, denied a motion to strike this matter from the trial calendar, and denied an application to adjourn the proceedings and directed dismissal of the complaint with prejudice for failure to prosecute, unanimously dismissed, with costs, as taken from nonappealable papers.

In December 2008, trial of this matter was adjourned to January 7, 2009 to accommodate the vacation plans of plaintiff's trial counsel. Several days later, plaintiff brought an order to show cause to remove the case from the trial calendar in order to permit amendment of her expert's report to assert an additional basis of liability. The motion was heard by Supreme Court (Judith J. Gische, J.) and denied in an order entered January 14, 2009. The unsigned transcript of the proceedings, reciting that it "constitutes the decision and order of the Court," was not filed until January 12, 2010.

After appearing before Justice Gische, the parties proceeded to the trial part, where plaintiff sought adjournment on the ground that trial counsel was on trial in another matter. After JHO Gammerman indicated his acquiescence to the extent of adjourning trial for a few days, plaintiff's counsel requested that the court go off the record. When the proceedings resumed, JHO Gammerman ruled that it was dismissing the matter for failure to prosecute, stating that "it is a dismissal with prejudice, and the Clerk is directed to enter appropriate judgment." The transcript of these proceedings, likewise unsigned, was also not entered until January 12, 2010.

The ruling sought to be reviewed on this appeal is indeterminate. The notice of appeal dated January 13, 2010 recites that the appeal is taken "from the order of [Supreme] Court duly entered in the office of the Clerk on January 12, 2010." While the notice fails to specify the individual judge or judicial hearing officer, plaintiff's pre-argument statement (McKinney's NY Rules of Court [22 NYCRR] § 600.17[a]) identifies the ruling appealed from as that of Justice Gische. Finally, plaintiff's brief designates the question to be decided as whether the trial court committed an abuse of discretion in denying the motion to mark the matter off the trial calendar, leading to an order dismissing the case, and concludes that "the orders [sic] appealed from should be reversed."

Although the transcript of proceedings before JHO Gammerman indicates that, upon signing, it may be presented to the Clerk for entry of judgment, it is not signed and no subsequent proceedings are reflected in the record. Particularly, there is no indication that judgment was ever entered.

Neither of the decisions filed on January 12, 2010 constitutes an appealable paper (CPLR 5512[a]), and this appeal must be dismissed for lack of jurisdiction (Matter of Grosso v Slade, 179 AD2d 585, 586 [1992]). The ruling by Justice Gische was reduced to a short-form order duly entered on January 14, 2009 (CPLR 2219[a]) but not appealed from. The JHO's decision was never presented for signature by a Supreme Court Justice, and there is no record of any judgment having been entered thereon from which an appeal could be taken.

Singh v Lincoln Mgt., LLC, 2011 NY Slip Op 06484 (2nd Dept., 2011)

The appeal by the plaintiff from the order must be dismissed for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8[c], [e]). The appeal by the defendants third-party plaintiffs from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal by the defendants third-party plaintiffs from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

However, the appeal by the defendants third-party plaintiffs from the judgment must be dismissed, as they are not aggrieved thereby. They received all the relief sought by them on their cross motion for summary judgment dismissing the complaint, the third-party defendant's renewed motion for summary judgment dismissing the third-party complaint was denied as academic, and the third-party complaint has not been dismissed by the Supreme Court (see CPLR 5511). That the order brought up for review on the appeal from the judgment may contain language or reasoning which the defendants third-party plaintiffs deem adverse to their interests does not furnish them with a basis for taking an appeal (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473).

Deller v Mercy Med. Ctr., 2011 NY Slip Op 06365 (2nd Dept., 2011)

As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). The plaintiff appealed from a judgment entered January 12, 2009, which upon, inter alia, an order of the Supreme Court, Nassau County, entered October 4, 2005, denying the plaintiff's motion to restore the action to the trial calendar, dismissed the complaint pursuant to CPLR 3404. That appeal was dismissed by decision and order on motion of this Court dated August 4, 2010, for failure to perfect in accordance with the rules of this Court, and that dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed on that appeal (see Bray v Cox, 38 NY2d at 355). Under the circumstances of this case, we decline to exercise our discretion to determine the merits of the instant appeal from the amended judgment, which raises the same issues as could have been raised on the prior appeal (see Bray v Cox, 38 NY2d 350; Graziano v Graziano, 66 AD3d 835; Blue Chip Mtge. Corp. v Stumpf, 50 AD3d 936; Matter of Talt v Murphy, 35 AD3d 486; Hepner v New York City Tr. Auth., 27 AD3d 418).

Procedural cornucopia and 5015

CPLR R. 5015

CPLR § 5501

Pollak v Moore, 2011 NY Slip Op 05351 (1st Dept. 2011)

Plaintiff's appeal from the judgment does not bring up for review an order of the motion court, entered November 20, 2009 (Richard B. Lowe, III, J.), which was marked "final disposition" and, in fact, disposed of all of plaintiff's claims, leaving nothing further in the action that would require non-ministerial judicial action (see CPLR 5015[a][1]; Burke v Crosson, 85 NY2d 10 [1995]). While the judgment explicitly referred to the November 20, 2009 order, and such order "affected" the judgment, the November 20, 2009 order did not meet the further criterion that the underlying order sought to be reviewed on appeal from the judgment be "non-final" (see CPLR 5501[a][1]). Plaintiff abandoned his appeal from the November 20, 2009 order, and cannot revive that appeal by the expedient of effecting a ministerial entry of judgment upon the final order after expiration of the time to perfect the initial appeal. 

Assuming we were able to reach plaintiff's appellate arguments on the merits, we would find them unavailing. Plaintiff's initial argument that Justice Lowe's November 20, 2009 order was void as it was dated approximately two weeks after Justice Lowe had transferred the action to another IAS part, and such transfer was based on his recusing himself from the action, is unsupported by the record. A review of the relevant transfer orders indicates that the transfer of the action to Justice Walter Tolub, who was handling a related foreclosure proceeding, was done for judicial economy purposes. Moreover, it is noted that prior to the transfer, defendants' motion to dismiss was fully submitted and orally argued before Justice Lowe, and Justice Lowe informed the parties that he would render a decision on the motion (see generally Hudson View II Assoc. v Miller, 282 AD2d 345 [2001], lv dismissed 96 NY2d 937 [2001]; Zelman v Lipsig, 178 AD2d 298 [1991]). Plaintiff offers no evidence to indicate bias or impropriety in the rendering of the November 20, 2009 order (see generally Hudson View II Assoc., 282 AD2d 345). We find plaintiff's related due process arguments unavailing.

We find that plaintiff's breach of contract claim, which was predicated upon a purported agreement by defendants to sell plaintiff a portion of a lot (with improvements thereon) pending formal division of the lot on the New York City tax map, to be barred by the statute of frauds. The documentary evidence established that the purported agreement was not signed by all the parties to be charged (see General Obligations Law § 5-703[2]; Naldi v Grunberg, 80 AD3d 1 [2010], lv denied __ NY3d __, 2011 NY Slip Op 71494 [2011]), the sale terms were modified by plaintiff, and the parties had an opportunity to execute plaintiff's marked-up contract of sale, but did not elect to execute such agreement. To the extent plaintiff relies on other writings to argue that they demonstrate the parties to be charged agreed to the sale of a portion of a lot to plaintiff (see generally WWP Group USA v Interpublic Group of Cos., 228 AD2d 296 [1996]), we find that the writings do no more than reflect interest of the parties to be charged in effecting a sale of the portion of the property to plaintiff upon appropriate terms.Plaintiff's alternative claims sounding in breach of fiduciary duty, fraud, fraud in the inducement and negligent misrepresentation were duplicative of his breach of contract claims and, as such, properly dismissed (see J.E. Morgan Knitting Mills v Reeves Bros., 243 AD2d 422 [1997]; cf. Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954 [1986]). Plaintiff's claim for unjust enrichment was unsupported by evidence that defendants, whose interest in the property at stake was foreclosed against, were enriched at plaintiff's expense (see generally Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415 (1972), cert denied 414 US 829 [1973]; Weiner v Lazard Freres & Co., 241 AD2d 114, 119-120 [1998]).

Insofar as plaintiff requested leave to serve a second amended complaint, denial of such relief was a proper exercise of discretion as plaintiff failed to annex a copy of a proposed second amended pleading to his motion papers, and he did not otherwise offer an affidavit of merit or any "new" facts as would overcome the legal defects in his prior two complaints (see generally Jebran v LaSalle Bus. Credit, LLC, 33 AD3d 424 [2006]; Gonik v Israel Discount Bank of N.Y., 80 AD3d 437, 438-439 [2011]).

Kohn v Kohn, 2011 NY Slip Op 06095 (2nd Dept., 2011)

To vacate her default in opposing the plaintiff's motion, the defendant was required to demonstrate both a reasonable excuse for her default and a potentially meritorious opposition (see Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030; Bazoyah v Herschitz, 79 AD3d 1081). A motion to vacate a default is addressed to the sound discretion of the Supreme Court (see Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150). The Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), where the claim of law office failure is supported by a "detailed and credible" explanation of the default (see Remote Meter Tech. of N.Y., Inc. v Aris Realty Corp., 83 AD3d 1030; Winthrop Univ. Hosp. v Metropolitan Suburban Bus Auth., 78 AD3d 685, 686). Here, the defendant's claim of law office failure was supported by a "detailed and credible" explanation of the default, and the Supreme Court providently exercised its discretion in accepting that explanation. Moreover, the defendant demonstrated the existence of a potentially meritorious opposition to the plaintiff's motion.

Bad Subpoena: everyone gets sanctioned

22 NYCRR 130-1.1 Costs; sanctions

Duval v Duval, 2011 NY Slip Op 05657 (App. Div., 2nd 2011)

Contrary to the plaintiff's contention, under the particular circumstances of this case, the appeal from the judgment brings up for review the orders dated January 22, 2010, and January 26, 2010 (see CPLR 5501[a][1]).

The Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1. Under the circumstances presented, the conduct of the plaintiff and her counsel in obtaining a "so-ordered" subpoena duces tecum and serving it upon Long Island Jewish Medical Center to obtain the defendant's medical records prior to filing a note of issue and before a trial date was set was frivolous within the meaning of 22 NYCRR 130-1.1(c), as it was completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1[c]). Contrary to the defendant's contention, pretrial disclosure on the issue of child custody is permissible with respect to a parent's  health, since the parties to a contested custody proceeding place their physical and mental conditions in issue (see Torelli v Torelli, 50 AD3d 1125, 1125; Anonymous v Anonymous, 5 AD3d 516, 517; Rosenblitt v Rosenblitt, 107 AD2d 292, 293-294). Here, however, in her attempt to obtain pretrial disclosure of the defendant's medical records in connection with the issue of child custody, the plaintiff sought a "so-ordered" trial subpoena duces tecum from the Supreme Court, thereby obviating the need to obtain the defendant's written authorization to release the records. The plaintiff also failed to serve the subpoena on the defendant in a timely manner, thus depriving him of the opportunity to request withdrawal of the subpoena or to make a timely motion to quash. Moreover, it can be inferred from the record that the challenged conduct was designed primarily to harass and maliciously injure the defendant (see 22 NYCRR 130-1.1[c]). In view of the foregoing, that branch of the defendant's motion which was to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1 should have been granted, and accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing on the issue of the amount of an appropriate sanction to be imposed upon the plaintiff and her counsel.

Furthermore, the Supreme Court improvidently exercised its discretion in denying, with limited exception, that branch of the defendant's motion which was to suppress all information relating to the contents of records produced in response to the subpoena duces tecum served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information. Under the circumstances of this case, suppression and preclusion, along with the imposition of a sanction, were the appropriate remedies for the improper manner in which those records were obtained (see CPLR 3103[c]). Accordingly, that branch of the defendant's motion which was to suppress all information relating to the contents of records produced in response to the subpoena served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information should have been granted in its entirety, with a directive that the plaintiff and her counsel deliver all records produced in response to the aforementioned subpoena to the defendant and to affirm that all such records, and any copies thereof, have been so returned and/or destroyed and were not transmitted to any third party.


CPLR 5513 5701 5526 3212b 5501

CPLR R. 5513 Time to take appeal, cross-appeal or move for permission to appeal

CPLR § 5701 Appeals to appellate division from supreme and county courts

CPLR R. 5526 Content and form of record on appeal

CPLR § 5501 Scope of review

CPLR R. 3212 Motion for summary judgment

Fazio v Costco Wholesale Corp., 2011 NY Slip Op 04740 (App. Div., 1st 2011)

We reject plaintiffs' contention that the appeal is untimely because defendant filed its notice of appeal 32 days after it was served electronically with notice of the entry of the order (see CPLR 5513[a]). A New York State Court Electronic Filing (NYSCEF) site confirmation shows the date on which the order with notice of entry was filed electronically and e-mail notifications were sent to counsel for the parties. However, the NYSCEF site's transmission of notification of the entry to e-mail service addresses "shall not constitute service of notice of entry by any party" (22 NYCRR 202.5b[h][3]). "A party shall serve notice of entry of an order . . . on another party by serving a copy of the notification . . . and an express statement that the transmittal constitutes notice of entry" (id.). The only affidavit of service in the record shows that the notice of entry was served on defendant by mail. Thus, defendant had 35 days to notice its appeal (see CPLR 2103[b][2]).

Gross v 141-30 84th Rd. Apt. Owners Corp., 2011 NY Slip Op 04746 (App. Div., 1st 2011)

Although Supreme Court's order was not appealable as of right because it did not decide a motion made on notice (see CPLR 5701[a][2]), in the interest of judicial economy, we nostra sponte deem the notice of appeal a motion for leave to appeal and grant the motion (see CPLR 5701[c]; Winn v Tvedt, 67 AD3d 569 [2009]).

Supreme Court erred in granting plaintiff's application, since plaintiff failed to show that defendants' noncompliance with the court's discovery orders was "willful, contumacious or due to bad faith" (Weissman v 20 E. 9th St. Corp., 48 AD3d 242, 243 [2008]; Dauria v City of New York, 127 AD2d 459, 460 [1987]). Indeed, the record shows that defendants provided plaintiff with the discovery owed pursuant to Supreme Court's most recent order. Prior to that order, most of the delays in the discovery schedule were due to plaintiff's actions. Where, as here, delays in discovery were caused by both parties' actions, the unilateral and drastic sanction of striking the pleadings is inappropriate (Daimlerchrysler Ins. Co. v Seck, 82 AD3d 581 [2011]; Sifonte v Carol Gardens Hous. Co., 70 AD2d 563, 564 [1979]).

Block 6222 Constr. Corp. v Sobhani, 2011 NY Slip Op 04614 (App. Div., 2nd 2011)

"It is the obligation of the appellant to assemble a proper record on appeal, which must contain all of the relevant papers that were before the Supreme Court" (Wen Zong Yu v Hua Fan, 65 AD3d 1335, 1335; see CPLR 5526; Cohen v Wallace & Minchenberg, 39 AD3d 689; Matter of Remy v Mitchell, 60 AD3d 860). Since, under the circumstances, the record here is inadequate to enable this Court to render an informed decision on the merits, the appeal must be dismissed (see Emco Tech Constr. Corp. v Pilavas, 68 AD3d 918, 918-919; Matter of Allstate Ins. Co. v Vargas, 288 AD2d 309, 310).

Cocom-Tambriz v Surita Demolition Contr., Inc., 2011 NY Slip Op 04622 (App. Div., 2nd 2011)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212[b]; Harsch v City of New York, 78 AD3d 781, 784; Nassau Plaza Assoc., L.P. v Greater N.Y. Mut. Ins. Co., 74 AD3d 1159, 1160). Accordingly, upon searching the record, we award summary judgment to the defendants third-party plaintiffs on the issue of whether the plaintiff sustained a grave injury.

Williams v New York City Health & Hosps. Corp., 2011 NY Slip Op 04662 (App. Div., 2nd 2011)

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

App Div 1st declines to decide whether the Sup Ct has the power to review a damages verdict using the CPLR § 5501(c) Std

CPLR § 5501 Scope of review

(c) Appellate division.
The appellate division shall review questions of law and questions of
fact on an appeal from a judgment or order of a court of original
instance and on an appeal from an order of the supreme court, a county
court or an appellate term determining an appeal. The notice of appeal
from an order directing summary judgment, or directing judgment on a
motion addressed to the pleadings, shall be deemed to specify a
judgment upon said order entered after service of the notice of appeal
and before entry of the order of the appellate court upon such appeal,
without however affecting the taxation of costs upon the appeal. In
reviewing a money judgment in an action in which an itemized verdict is
required by
rule forty-one hundred eleven
of this chapter in which it is contended that the award is excessive or
inadequate and that a new trial should have been granted unless a
stipulation is entered to a different award, the appellate division
shall determine that an award is excessive or inadequate if it deviates
materially from what would be reasonable compensation.

Delacruz v Port Auth. of N.Y. & N.J., 2009 NY Slip Op 04124 (App. Div., 1st, 2009)

The stipulated increase in damages for past pain and suffering, undertaken at the court's urging and as an alternative
to a new trial, was warranted (see Newman v Aiken, 278 AD2d
115 [2000]). In reviewing plaintiff's motion to set aside the award of
past pain and suffering, Supreme Court employed the "deviates
materially from reasonable compensation" test specified by CPLR
5501(c). That statute provides the Appellate Division with the power to
review a damages verdict under that standard; it does not expressly
provide Supreme Court with similar review power. Whether Supreme Court
was authorized to review the award for past pain and suffering under
the standard provided by CPLR 5501(c) or was required to review the
award under a more restricted standard, e.g. "shocks the conscience" (compare Ashton v Bobruitsky, 214 AD2d 630 [1994]; Prunty v YMCA of Lockport, Inc., 206 AD2d 911 [1994] and Cochetti v Gralow, 192 AD2d 974 [1993], with Lauria v New York City Dept. of Environmental Protection, 152 Misc 2d 543 [1991]; see Siegel, NY Practice §
407 [4th ed]), is an issue we need not decide
. Under our own review
pursuant to CPLR 5501(c), we conclude that the jury's award for past
pain and suffering of $25,000 deviates materially from reasonable
compensation, and that, as Supreme Court found, $75,000 is reasonable
compensation (see generally Donatiello v City of New York, 301 AD2d 436 [2003]).

This case is interesting for what the Court declined to decide.

The bold is mine.

CPLR § 5501

CPLR § 5501 Scope of review

(a) Generally, from final judgment. An appeal from a final judgment brings up for review:

any non-final judgment or order which necessarily affects the final
judgment, including any which was adverse to the respondent on appeal
from the final judgment and which, if reversed, would entitle the
respondent to prevail in whole or in part on that appeal, provided that
such non-final judgment or order has not previously been reviewed by
the court to which the appeal is taken

(c) Appellate division

Stinson v Roosevelt U.F.S.D., 2009 NY Slip Op 03156 (App. Div., 2nd, 2009)

The notice of appeal from the order is deemed also to be a notice of appeal from the judgment (see CPLR 5501[c]).

The appeal from the intermediate order must be dismissed because the
right of direct appeal therefrom terminated with the entry of judgment
in the action (see Matter of Aho, 39 NY2d 241, 248). The issues
raised on the appeal from the order are brought up for review and have
been considered on the appeal from the judgment (see CPLR 5501[a][1]).

CPLR § 5511; CPLR § 5501

CPLR § 5511 Permissible appellant and respondent

CPLR § 5501 Scope of review

Geraci v Probst, 2009 NY Slip Op 02971 (App. Div., 2nd, 2009)

The defendants' contention that the trial court erred in allowing
testimony as to republication of Probst's defamatory statements by
Newsday is unpreserved for appellate review (see CPLR 5501; Firth v State of New York,
98 NY2d 365, 372). The defendants' contention that the trial court
erred in allowing testimony about an investigation of the plaintiff by
the District Attorney's office is without merit, as the evidence
demonstrated that the investigation was caused by Probst's own
defamatory statements (see Garrison v Sun Print & Publ. Assn.,
207 NY 1, 8). In addition, the trial court properly allowed testimony
about an out-of-court statement regarding the extent of the effect of
Probst's defamatory statements on the plaintiff's reputation, as the
testimony was not [*3]hearsay (see Gelpi v 37th Ave. Realty Corp., 281 AD2d 392).

A party who consents to a trial court's reduction of a damages
award is not aggrieved by the resulting judgment, and therefore is not
entitled to appeal from that judgment (see CPLR 5511; Zhagnay v Royal Realty Co.,
87 NY2d 954). Accordingly, the plaintiff's cross appeal must be
dismissed. However, the plaintiff may be afforded relief pursuant to
CPLR 5501(a)(5) (see Hecht v City of New York, 60 NY2d 57, 63, n; Papa v City of New York, 194 AD2d 527, 532; Donohoe v Foldner, 168 AD2d 412, 413).

In determining whether a jury's award of damages is excessive,
the court should consider whether the award "deviate[s] materially from
what would be reasonable compensation" (see CPLR 5501[c]; K. Capolino Constr. Corp. v White Plains Hous. Auth.,
275 AD2d 347, 349). Here, the Supreme Court properly determined that
the damage awards were excessive, and appropriately reduced the same to
the extent indicated.

The defendants' remaining contentions are either unpreserved for appellate review (see CPLR 5501; Firth v State of New York, 98 NY2d at 372), waived (see Santiago v RodrÍguez, 38 AD3d 639, 640), or without merit.

The bold is mine.

CPLR § 5501, CPLR § 4017, CPLR § 4110(b)

CPLR § 5501 Scope of review

CPLR § 4017 Objections

CPLR § 4110(b) Instructions to jury; objection

In any trial, whether in a bench or jury trial, it’s easy to get lost in the heat of it, and miss those crucial objections. Or, forget to object in such a way as to preserve your objection for appellate review.  In Preserving Objections to Jury Charges, an article that will appear in Monday’s New York Law Journal (it is available in the online version now) Victor Olds and Elizabeth Bohnett,A discuss the consequences of failing to adequately preserve objections to jury charges, including the difficulties that can be faced on appeal when the objections aren’t properly preserved.

Of course, this being a blog devoted to the CPLR, I’m really only interested in that aspect of article, however, that should not be taken to mean that the article should not be read in its entirety–it should.

Without any further interruption, here is the CPLR part(s):

The Preservation Doctrine

The preservation doctrine (also called the "contemporaneous objection
rule") has several objectives, to wit, (1) to ensure that each party
has ample opportunity to hear and respond to the arguments of the other
party; (2) to provide the trial judge with the ability to issue rulings
on all matters and correct errors while the case is still at the trial
phase; and (3) to curtail the number of time-consuming, frivolous
Indeed, the overarching effect of the preservation doctrine is to limit
appellate review exclusively to those grounds that were raised at the
trial court level.4

Section 5501 of the CPLR is the basic statutory provision governing
appellate review in New York. Under that provision, appellate
consideration of any final judgment is proper regarding a ruling or
jury instruction contained therein, provided an appropriate objection
has been made by the appellant at trial below.5
In addition, CPLR §4017 requires that any objection so rendered be both
"timely" and "specific" in order to be adequately preserved. Moreover,
with reference to jury instructions, CPLR §4110-b mandates that
appellate review of jury charges is available only in those instances
where the party claiming error registers a specific objection and does
so before the jury retires to consider the verdict.

New York courts have generally held that the timeliness requirement
means that the objection must be registered at some point during the
trial proceeding,6
while the specificity component insists that the challenge be focused
on the precise alleged error whose correction is being urged on appeal.7
It follows that if counsel neglects to make a timely and specific
objection, he will be deemed to have waived his challenge on appeal.8
As the case law indicates, appellate courts generally take a dim view
of a failure to adhere to these rules, especially in cases involving
post-verdict challenges. What is particularly interesting, however, are
the various contexts in which these issues arise with respect to jury
charges. Indeed, the cases that have addressed this point are both
illustrative of how courts choose to apply the rules relating to
preservation, and instructive in helping one avoid some of the common
pitfalls that could entirely foreclose appellate review.

All the bold is mine.  I added the footnote with the bios as they appear in the online version because it would take up too much damn space to put anything remotely similar in the text.


A. Victor Olds is the managing director and general
counsel of Bedford-Stuyvesant Community Legal Services and an adjunct
professor of appellate advocacy at Brooklyn Law School.
Elizabeth Bohnett is a staff attorney at Bedford-Stuyvesant Community Legal Services. Helen Tang, a law student at Columbia Law School, participated in the preparation of this article.