It really was not on consent again

Understanding Consent Orders and Appeal Waivers in Civil Litigation

The concept of a consent order carries significant legal weight in civil litigation. When parties consent to a court order, they typically waive their right to appeal, accepting the court’s determination as final. However, disputes frequently arise when one party claims an order was entered on consent while the other party vigorously denies agreeing to the terms. This case from the Appellate Term, Second Department, illustrates the complexities that emerge when the record contains conflicting indications about whether parties truly consented to an order.

The right to appeal represents a fundamental procedural safeguard in the American legal system. Attorneys who zealously protect their clients’ interests recognize that preserving appellate rights is essential, particularly when adverse rulings may result from error or when legal issues merit higher court review. Unlike criminal plea bargains or civil settlement agreements where parties knowingly and voluntarily waive appellate rights in exchange for specific benefits, consent orders in ongoing litigation should reflect genuine agreement between the parties. When court records contain notations suggesting consent that one party disputes, difficult questions arise about whether an enforceable consent order exists.

In no-fault insurance litigation, where claim values may be modest, the decision to pursue an appeal involves careful cost-benefit analysis. Yet the principle at stake—ensuring that appeal waivers reflect actual consent rather than clerical notations—transcends the monetary value of any individual case.

Case Background

Healthworx Med., P.C. v Auto One Ins. Co., 2017 NY Slip Op 50559(U)(App. Term 2d Dept. 2017)

The order itself was numbered. Apparently, after the order was written and given to the judge, the numbers of the papers were crossed out and the order in its body said: “oth sides agreed to the above and will not appeal this order.” Out of a fit of rage, I appealed because it was not on consent and there was no appeal waiver. Unless I am taking a plea in a criminal case or settling a civil matter, I never forfeit my right to appeal. The right to appeal is something I cherish and am not afraid to exercise. The attorney who appeared told me it was not on consent. Interestingly, Civil Court (same judge as originally) implicitly saw the lack of logic of consenting to judgment absolute and denied the motion on the lack of reasonable excuse grounds.

The appeal (without costs) was not fruitful. Just so you know, there was no bill for the Camp conference or appeal on this case. The case is worth $500.00 and it will die a less than dignified death. Put an asterisk next to this under the caption “weird things that happen in Civil Kings”.

Legal Analysis: When Consent Becomes Disputed

This case presents unusual procedural circumstances that highlight the importance of clear record-keeping in civil litigation. The order initially contained numbered papers, but someone crossed out these numbers after the order was written and presented to the judge. More significantly, language appeared in the order stating that “both sides agreed to the above and will not appeal this order.” This notation created the appearance of a consent order with an explicit appeal waiver.

However, Jason Tenenbaum’s account reveals that no actual consent occurred. The attorney who appeared at the proceeding confirmed that the order was not entered on consent, yet the order itself contained language suggesting otherwise. This discrepancy raises troubling questions about how notations indicating consent can appear in orders when parties genuinely dispute having agreed to the terms.

The Civil Court’s subsequent handling of the matter proved illuminating. When presented with a motion related to the case, the same judge who entered the original order implicitly recognized the logical inconsistency of parties consenting to a judgment absolute while simultaneously seeking to challenge it on other grounds. The court’s denial of the motion on “lack of reasonable excuse grounds” suggested recognition that something was amiss with the consent notation.

The Appellate Term ultimately found the appeal unsuccessful, though Tenenbaum notes it proceeded without costs. The fact that the appeal failed does not necessarily validate the consent notation; rather, it may reflect the appellate court’s reluctance to disturb the lower court’s determination on what appeared to be a procedural irregularity in a low-value case.

Practical Implications and Professional Principles

This case offers several important lessons for practitioners in no-fault insurance litigation and civil practice generally. First, it demonstrates the critical importance of making clear objections on the record when court orders contain inaccurate notations. If an order states that parties consented when they did not, counsel should immediately move to correct the record or file objections preserving the right to appeal.

Second, the case illustrates the economic realities of no-fault litigation. With the case valued at only $500, pursuing a Camp conference and appeal represented a significant investment of time and resources relative to the potential recovery. Jason Tenenbaum’s decision not to bill for this work reflects both the economic constraints of small-value litigation and a principled commitment to protecting appellate rights regardless of the financial stakes involved.

Third, this decision underscores the practical difficulties attorneys face when court records contain errors or inaccuracies. Even when counsel can demonstrate that no consent occurred, correcting the record through the appellate process may prove unsuccessful, leaving practitioners with limited recourse when clerical or procedural irregularities affect their cases.

Finally, the case exemplifies Tenenbaum’s philosophy regarding appellate rights: zealous advocacy sometimes requires taking principled stands even when the financial calculus does not support doing so. The right to appeal, particularly when no genuine consent or settlement occurred, represents a fundamental protection that should not be compromised by inaccurate notations in court orders. While this particular appeal proved unsuccessful, the willingness to challenge questionable consent notations serves the broader interest of maintaining the integrity of the judicial process.

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