How does the New York Court of Appeals create its docket of civil cases? Although certain cases are entitled to review “as of right” under CPLR 5601—most frequently arising from two-justice dissents at the Appellate Division on questions of law—most civil cases are accepted through the exercise of the court’s certiorari authority. This is a highly selective process as evidenced by the fact that less than 10 percent of civil motions for leave to appeal were granted in 2014.1 To improve the odds of achieving a leave grant, an attorney must grasp more than the technical procedures governing appeals in Part 500 of the Rules of the Court of Appeals; it is critical to understand how issues can best be framed to trigger the court’s “leaveworthy” concerns.

Developing a Path

After issuance of an Appellate Division order, a hopeful appellant must determine whether the case falls within the class of “as of right” appeals or if a motion for leave to appeal is necessary. If proceeding by a motion for leave to appeal, a strategic decision is needed whether to first seek leave to appeal from the Appellate Division, as authorized by CPLR 5602(a), rather than moving directly to the Court of Appeals.

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