Motions for Leave to Appeal to the New York Court of Appeals: CPLR 5602 Step by Step

Most civil cases in New York end at the Appellate Division. The New York Court of Appeals, the state's highest court, hears only a small fraction of the cases that seek its review, and in nearly all civil matters a party cannot appeal there as of right. Instead, the losing party must obtain permission through a motion for leave to appeal governed by CPLR 5602. The statute sets out two routes to permission, and the Rules of Practice of the Court of Appeals (22 NYCRR Part 500) control how the motion is made. This page walks through the process step by step.

What CPLR 5602 Authorizes

Leave Granted by the Court of Appeals: CPLR 5602(a)

Under CPLR 5602(a)(1)(i), the Court of Appeals may grant a party leave to appeal from a final order of the Appellate Division that is not appealable as of right under CPLR 5601. This is the most common path. CPLR 5602(a)(1)(ii) supplies a second, less familiar route: where the Appellate Division decided a prior nonfinal appeal in the case, a party may seek leave to appeal directly from the final judgment of the trial court, bringing the earlier Appellate Division order up for review with it.

Leave Granted by the Appellate Division: CPLR 5602(b)

CPLR 5602(b) permits the Appellate Division itself to grant leave to appeal to the Court of Appeals. For final orders, either court can grant permission. For nonfinal orders, the difference matters enormously: only the Appellate Division can grant leave from a nonfinal order, and it must certify that a question of law is involved which ought to be reviewed by the Court of Appeals. The Court of Appeals has no power to grant leave from a nonfinal order on its own.

Step One: Confirm Finality

Before drafting anything, determine whether the order you want reviewed is final. An order is final for Court of Appeals purposes when it disposes of all claims against all parties and leaves nothing for further judicial action apart from ministerial steps. An Appellate Division order that affirms dismissal of an entire complaint is final. An order that reverses summary judgment and sends the case back for trial is not. Finality is jurisdictional: if the order is nonfinal and the Appellate Division has not certified a question under CPLR 5602(b), the Court of Appeals will dismiss the motion no matter how significant the legal issue. Many motions fail on this threshold question alone.

Step Two: Calculate the Deadline Under CPLR 5513(b)

CPLR 5513(b) gives you thirty days to move for permission to appeal, measured from service upon you of the order to be appealed with written notice of its entry. If you first moved for leave in the court that made the order and that motion was denied, a fresh thirty-day period runs from service of the order of denial with notice of entry. CPLR 5513(d) adds five days where service was made by mail and one day where service was made by overnight delivery. The same statute that governs the 30-day deadline for taking an appeal governs motions for leave, and it is enforced strictly. The Court of Appeals has no authority to extend it except in the narrow circumstances listed in CPLR 5514.

Worked example: The Appellate Division affirms dismissal of your complaint. Your adversary serves the order with notice of entry by mail on March 3. You have thirty days plus five for mail service, so your motion for leave must be served by April 7. If April 7 falls on a Saturday, Sunday, or public holiday, General Construction Law § 25-a carries the deadline to the next business day. Note that the clock runs from service of the order with notice of entry, not from the date the Appellate Division decided the appeal. If no one has served the order with notice of entry, the clock may not have started, but do not rely on that; confirm the docket.

Two-step example: You move first in the Appellate Division for leave. That court denies your motion on June 10, and the denial order with notice of entry is served on you by mail on June 12. You now have thirty-five days from June 12 to serve your motion for leave in the Court of Appeals.

Step Three: Choose Where to Move

For a final order, you may move in the Appellate Division or in the Court of Appeals, but not in both at once. Each court will entertain only one motion for leave. Strategic considerations differ from case to case. A motion in the Appellate Division asks the same justices who decided the appeal to conclude that their ruling deserves review; those motions are rarely granted, but a grant is possible where the panel divided or acknowledged an open question. Most practitioners move directly in the Court of Appeals, which applies its own view of whether the case merits its attention. For a nonfinal order, you have no choice: the motion must be made in the Appellate Division with a request for a certified question.

Step Four: Prepare the Motion Papers Under Rule 500.22

Civil motions for leave in the Court of Appeals are governed by 22 NYCRR 500.22. The motion is made on notice, returnable on a Monday in accordance with Rule 500.21, and is submitted on papers without oral argument. The papers must include:

• Jurisdictional statement: a showing that the motion is timely under CPLR 5513(b) and that the order is final, with the procedural history needed to prove both.
• Questions presented: the specific questions of law you ask the Court to review, framed precisely. The Court reviews questions of law, not facts, so each question must be preserved in the record and outcome-determinative.
• Argument on leaveworthiness: why the questions merit review by the state's highest court, which is a different argument from why the Appellate Division was wrong.
• Supporting documents: copies of the order sought to be appealed with notice of entry, the Appellate Division decision, the trial court decision, and the record material necessary to understand the questions presented.
• Disclosure statement: corporate parties must file the statement required by Rule 500.1(f).

The opposing party may submit papers in opposition, and the Court decides the motion on the written submissions, typically within several months.

What Makes a Case Leaveworthy

The Court of Appeals grants leave in a small percentage of civil motions, historically fewer than five percent. Error correction alone rarely persuades the Court. The factors that matter most are:

• Novelty: the case presents a question of law the Court has never decided.
• Conflict: the Appellate Division departments have reached inconsistent results, so the law differs depending on where a case is filed.
• Statewide importance: the question affects many litigants, an industry, or the operation of a statute, beyond the parties to this case.
• Tension with precedent: the decision below is difficult to square with the Court's own prior holdings.

A strong motion identifies which of these factors apply and documents them: citations showing the departmental split, published commentary noting the open question, or the volume of pending cases raising the same issue.

After the Motion Is Decided

If leave is granted, the case proceeds to full briefing and argument under Part 500 of the Court's rules, on a schedule the Clerk's office sets. If leave is denied, the Appellate Division order stands, and the litigation is over unless a motion for reargument of the leave motion is warranted, which is rare. While the motion is pending, enforcement of the judgment continues unless you obtain a stay; the automatic and discretionary stay provisions of CPLR 5519 apply to this stage, and an undertaking may be required to hold off collection on a money judgment.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].