Curt of Appeals New York Standard of Review

Under CPLR 5501(c), "The appellate partition 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 betwixt 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'southward scope of review is co-extensive with that of the trial court, and it may do its discretion independently. As the Court of Appeals stated in Brady v. Ottaway Newspapers Inc.,^two "since it is vested with the aforementioned power and discretion every bit Special Term, the Appellate Division may also substitute its own discretion even in the absence of abuse."

At times, however, there announced to exist no discernable standards that would lend consistency and predictability to the Appellate Segmentation's exercise of its discretion, and similar fact situations do not always result in identical outcomes. For instance, in one instance, an club granting a move to dismiss for failure to prosecute was reversed for abuse of discretion and the action reinstated,³ while in another case involving like facts the grant of such motion was affirmed.⁴ Occasionally, information technology may exist difficult to glean from the decisions what factors led the Appellate Partitioning in one instance to overturn the trial court'southward practice of discretion and reinstate the action, and in a like case affirm the dismissal of the action.

While the outer limits of the trial courts' discretion resist articulate delineation, certain factors aid to define them. In reviewing a court's exercise of discretion, the Appellate Segmentation generally examines the record to determine whether the decision (1) rests on an fault of police force or erroneous finding of fact, or (2) cannot be located within the range of permissible decisions, or (iii) fails to consider all the relevant factors or unreasonably balances them.

Error of Law

Steinbuch five. Stern ⁵ illustrates the Appellate Division's reversal of the trial court's discretionary decision that rested on an fault of constabulary. The plaintiff in Steinbuch, a podiatric malpractice activeness, sustained burn injuries to her dogie during a podiatric surgical procedure on her human foot. At trial, the plaintiff attempted to adduce expert testimony from a licensed podiatrist, who had treated burns during his residency. The trial court ruled that only a medical doctor could offer the practiced opinions necessary to sustain the plaintiff's brunt of proof, and because she had no medical skilful witness, the court granted the defendant podiatrist's motion to dismiss the complaint insofar as asserted against him. The Appellate Division reversed and reinstated the complaint on the footing that the trial court had abused its discretion in precluding the plaintiff's proposed expert proof.

At the outset, the appellate court in Steinbuch acknowledged that "the determination of a witness' qualification to testify as an expert rests in the sound discretion of the trial court" and "will not be disturbed in the absence of a serious mistake, an error of constabulary or an extravagant practise of discretion."⁶ The courtroom farther observed, still, that "[a] witness may be qualified equally an expert based upon '[l]ong ascertainment, bodily experience and/or study,'" and "the lack of a medical license does not, in and of itself, disqualify a witness from testifying equally an good on a medical question."⁷ The court concluded that, under the particular circumstances of the case, the trial court had driveling its discretion in disqualifying the proffered skillful because he did not take a medical caste:

The courtroom was required to assess his qualification every bit an expert based upon his professional background, training, study, and experience. The court did not attempt to brand this kind of assessment and erroneously ruled that but a medico with a medical degree could testify with respect to causation.

The proffered proficient, established, inter alia, that while New York State podiatrists are only licensed to treat beneath the ankle, he had experience in diagnosing and treating many burns both above and below the talocrural joint. Thus, we find under the particular circumstances of this case, that he was sufficiently qualified to offering expert testimony as to the respondent's alleged malpractice in his treatment of the plaintiff's burn down injury. Furthermore, the trial court erred in non affording the plaintiff an opportunity to lay a foundation for qualification of her witness.^eight

Range of Decisions

Appellate courts have found that the trial court "abused" or "exceeded" its discretion when its conclusion cannot be located within the range of permissible decisions. In Eastway Constr. Corp. v. City of New York,⁹ the U.S. Court of Appeals for the Second Excursion offered a useful explanation of this concept:

All discretion is to be exercised within reasonable limits. The concept of discretion implies that a decision is lawful at any betoken inside the outer limits of the range of choices appropriate to the issue at paw; at the same time, a conclusion outside those limits exceeds or, every bit it is infelicitously said, "abuses" commanded discretion.

In our view, the "deviates materially" standard of appellate review in CPLR 5501(c) illustrates this concept in cases where the trial court has previously reviewed for excessiveness or inadequacy the jury's honour of personal injury amercement. Department 5501(c) provides that "[i]north reviewing a money judgment in an action in which an itemized verdict is required…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 laurels, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable bounty."

CPLR 5501(c) mandates that reviewing courts utilize a comparative instance analysis in determining the excessiveness of a jury verdict. This requires the Appellate Division to compare the damage award at event to awards approved by appellate courts in other cases involving similar injuries.¹⁰ If the award at issue "deviates materially" from the range of damages approved in the comparable cases, then it is subject to reduction or increase.

In typical remittitur situations, the Appellate Sectionalisation will reduce an excessive award—fifty-fifty ane already reduced by the trial court nether its own §5501(c) analysis—to the upper stop of the sustainable range for injuries of that nature. Conversely, in instances of additur, the Appellate Partitioning will increase an inadequate award—fifty-fifty one already increased by the trial court—to the lower end of the sustainable range. "The effigy ready past the court, and the one to which the political party is required to stipulate or face a new trial, represents the minimum (in the case of additur) or the maximum (in the case of remittitur) found by the court to be permissible on the facts."¹¹

Relevant Factors

In reviewing a trial court'south discretionary conclusion involving questions of pretrial procedure, the Appellate Segmentation will independently examine and weigh the factors that the trial court should consider. In SKR Pattern Group Inc. v. Avidon,¹² for example, a Judicial Hearing Officer (JHO) adjourned the trial date several times at the request of the defendant, whose counsel was recovering from surgery. The accused retained substitute counsel, and the JHO granted him a 48-hour adjournment to prepare for trial.

On the adjourned trial date, the substitute defence force counsel sought to withdraw from the case on the ground that he needed additional preparation fourth dimension. The trial court denied leave to withdraw, stating that the adjournment was the prerogative of the JHO, who had decided that a 48-hour adjournment provided adequate trial training time. When the defense force counsel responded that he could non proceed in good conscience and asked that the accused be permitted to dismiss her attorney and go on pro se, the trial courtroom denied the application and directed an inquest. The defendant appealed from the resultant money judgment awarded after the inquest.

The Appellate Division reversed and remanded the matter for a new trial in SKR, finding that the denial of an banishment was an improvident exercise of discretion. At the commencement, the court observed that "once a judicial proceeding has commenced, the estimate to whom a case is assigned has exclusive jurisdiction over its comport and may not delegate or give up judicial authority over such issues as adjournments. Therefore, it was incumbent upon Supreme Court to make a de novo conclusion of the merits of defendant's adjournment request."¹³

Side by side, the Appellate Division discussed the relevant factors that shaped the discretionary determination whether to grant an adjournment, and ended that, on balance, these factors weighed in favor of granting an adjournment based on the tape earlier it:

A court is vested with broad discretion to control its calendar, and a motion for adjournment is generally addressed to the court's sound discretion. Still, "[i]n deciding such a motion, the courtroom must indulge in a balanced consideration of all relevant factors including the merit of the activity, prejudice or lack thereof to the plaintiff, and intent or lack of intent to deliberately default or abandon the action." Plaintiff did non demonstrate that it would be prejudiced by a delay of trial, defendant alleges that just one-half of the contracted renovation piece of work was performed and that she incurred expenses to remedy unsatisfactory workmanship, and counsel's health was a factor entirely beyond defendant'southward control. Under these circumstances, nosotros regard the failure to grant an adjournment to enable defendant to exist represented by her chosen counsel to be an improvident do of discretion.¹⁴

Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bough). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.

Endnotes

1. A. Karger, "The Powers of the New York Court of Appeals," §13:9, pp. 480-81 (2005).
2. 63 N.Y.second 1031, 1032 (N.Y. 1984).
3. E.m., Ferrara v. Due north.Y. & Atlantic Ry. Co., 25 A.D.3d 753 (2d Dept., 2006).
4. E.1000., Koehler v. Sei Young Choi, 49 A.D.3d 504 (second Dept., 2008).
5. 2 A.D.3d 709 (2d Dept., 2003).
6. Id. at 710 (citations omitted).
7. Id. (citations omitted).
8. Id. at 710-eleven (citations omitted).
9. 821 F.2d 121, 123 (2d Cir. 1987).
10. Eastward.g., Donlon v. Metropolis of New York, 284 A.D.2d thirteen, xiv (1st Dept., 2001).
11. D. Siegel, New York Practice, §407, p. 658 (tertiary ed.).
12. 32 A.D.3d 697 (1st Dept., 2006).
13. Id. at 698-99 (citations omitted).
14. Id. at 699 (citations omitted).

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