Key Takeaway
Court of Appeals grants leave in Progressive v Carothers case, creating rare four-opinion matter with certified question on Second Department's ruling
This article is part of our ongoing mallela issues coverage, with 32 published articles analyzing mallela issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
New York’s appellate system contains a little-known jurisdictional restriction that caught many attorneys by surprise in the Carothers case. While most practitioners understand the Court of Appeals sits atop New York’s judicial hierarchy, few realize that this highest court lacks jurisdiction to hear appeals from certain lower courts in civil matters, regardless of how important the legal question may be.
This jurisdictional limitation stems from the state constitution and affects cases originating in courts of limited jurisdiction. The restriction creates an anomalous situation where significant legal issues may receive final resolution at the Appellate Division or Appellate Term level, with no possibility of further review by the Court of Appeals—unless the Appellate Division certifies a question pursuant to CPLR 5713.
Understanding Court of Appeals Jurisdiction Limits
The Court of Appeals may not grant leave to hear civil appeals originating in Civil Court, District Court, City Court, Justice Court, County Court (in First or Second Departments), Town Court, or Village Court. This restriction exists because these courts of limited jurisdiction sit outside the Supreme Court system. Appeals from these courts typically terminate at the Appellate Term or Appellate Division level in civil matters.
However, CPLR 5713 provides a narrow exception: the Appellate Division may certify questions to the Court of Appeals when it determines that questions of law have arisen that ought to be reviewed by the state’s highest court. This certification mechanism represents the only pathway for Court of Appeals review of civil cases originating in lower courts. The Appellate Division’s discretion to certify is absolute—parties cannot demand certification as a matter of right.
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Interestingly, criminal appeals follow different rules. Criminal appeals from these same lower courts to the Appellate Term or County Court (upstate) can proceed directly to the Court of Appeals if leave is granted, bypassing the Appellate Division entirely. This divergence between civil and criminal appellate pathways reflects different constitutional provisions governing the Court of Appeals’ jurisdiction.
Case Background
The Progressive v. Carothers case had already generated unusual procedural history before reaching this certification stage. Dr. Andrew Carothers’s medical practice became embroiled in no-fault insurance litigation that produced opinions from Judge Sweeney at the Appellate Term, followed by a signed Appellate Division opinion—already making this a noteworthy case with published decisions at multiple levels.
When counsel initially sought leave to appeal to the Court of Appeals, that court issued an order declaring it lacked jurisdiction to grant leave. Rather than accepting this as the final word, counsel returned to the Second Department seeking certification to the Court of Appeals under CPLR 5713. This strategic move proved successful.
Jason Tenenbaum’s Analysis
Andrew Carothers, M.D., P.C. v Progressive Insurance Company, 2017 NY Slip Op 90794(U)(2d Dept. 2017)
For some reason, I missed this decision and order. I read the Court of Appeals order stating that the court was without jurisdiction to grant leave. Some of you may be unaware that the Court of Appeals may not grant leave to hear a civil cause that starts in the Civil Court, District Court, City Court, Justice Court, County Court (first or second departments), Town Court or Village Court. On the criminal side, an appeal from one of the above Courts to the Appellate Term or County Court (upstate) bypasses the Appellate Division and goes to the Court of Appeals (if leave is granted).
I was unaware that following the Court of Appeals order, Carothers went back to the Second Department and sought leave to appeal. Furthermore, I also was unaware that leave was actually granted. This will mean that this matter will result in four published opinions. Judge Sweeney, Appellate Term (it was not a U cite), Appellate Division (signed opinion) and now the Court of Appeals.
“ORDERED that the motion is granted, and the following question is certified to the Court of Appeals: Was the opinion and order of this Court dated April 5, 2017, properly made?
Questions of law have arisen, which, in our opinion, ought to be reviewed by the Court of Appeals (see CPLR 5713).”
Who would have thought.
Legal Significance of Four-Opinion Progression
The Carothers case’s progression to four published opinions represents an extraordinarily rare occurrence in no-fault insurance litigation. Most Civil Court cases never generate even one published opinion. The fact that this matter warranted review at every appellate level—Appellate Term, Appellate Division, and ultimately certification to the Court of Appeals—signals the fundamental importance of the legal questions presented.
When the Second Department certified the question “Was the opinion and order of this Court dated April 5, 2017, properly made?”, it acknowledged that its own decision raised issues requiring the Court of Appeals’ definitive resolution. This level of institutional humility is uncommon. Appellate Divisions rarely certify questions that implicitly question their own rulings, preferring to let their decisions stand as final pronouncements.
The certification demonstrates that the underlying Mallela-related issues in Carothers transcended ordinary discovery disputes. These questions likely implicated fundamental policies about medical practice, professional licensing, and the intersection between regulatory sanctions and civil litigation rights. Only issues of such statewide significance warrant the extraordinary remedy of CPLR 5713 certification.
Practical Implications for Litigators
Attorneys handling cases in Civil Court and other courts of limited jurisdiction must understand these jurisdictional pathways. When facing adverse Appellate Term or Appellate Division decisions in cases originating below the Supreme Court level, direct appeals to the Court of Appeals are not available. The only recourse is seeking CPLR 5713 certification from the Appellate Division.
To successfully obtain certification, counsel must persuade the Appellate Division that the legal questions presented have statewide importance and require the Court of Appeals’ authoritative resolution. Standard arguments about erroneous fact-finding or misapplication of settled law will not suffice. The questions must involve novel legal issues, conflicting precedent, or matters of substantial public importance.
The Carothers litigation illustrates that persistence can pay off when jurisdictional obstacles appear insurmountable. After the Court of Appeals declared lack of jurisdiction, counsel’s decision to seek certification under CPLR 5713 proved strategically sound. This approach required understanding the distinction between direct appeals (unavailable) and certified questions (potentially available at the Appellate Division’s discretion).
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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