A 5102(d) case and a jurisdictional riddle of how not to draft a notice of appealAugust 26, 2019

Cline v Code, 2019 NY Slip Op 06251 (4th Dept. 2019)

I have always said the Fourth Department has some of the more interesting discussions of everyday legal topics with which we deal.

Here, Plaintiff moved for summary judgment on the serious injury threshold. Defendant moved for summary judgment on lack of serious injury. The parties adduced dueling medical affidavits. Supreme Court granted the Defendant’s threshold motion. But the notice of appeal sought to appeal from the denial of the cross-motion.

Very esoteric debate between the four (4) Justice majority and the one (1) Justice dissent.

The salient portion states: ” I cannot agree with the majority’s reading of the notice of appeal as broadly encompassing both defendant’s motion and plaintiff’s cross motion because it essentially ignores the limiting language quoted above. To reach that conclusion, the majority states that it is construing the words in the notice of appeal, “from each and every part,” to mean that plaintiff is also challenging the grant of defendant’s summary judgment motion. In doing this, however, the majority ignores the specific restricting language that follows the word “order,” i.e., “denying” and “[p]laintiff’s [c]ross[ m]otion.” It is one thing to broadly construe ambiguous language; it is another thing entirely to do so in the face of plain, express limiting language to the contrary. “

Anyway, the Plaintiff should have written in its notice of appeal: “Appeal from the order dated ____, and each and every portion as adversely affected thereby…” Less is more folks.

Leave a Reply