A 5102(d) case and a jurisdictional riddle of how not to draft a notice of appeal

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.

Facebook
Twitter
Email
Print
Practice Areas

Our wide-ranging expertise will provide you with well-rounded legal counsel

At the Law Office of Jason Tenenbaum, our attorneys have the integrity and experience you need to best assist, advise, and support you through your legal challenge, every step of the way.

No Fault Defense
Practice Areas
No Fault Defense

Using cutting-edge technology and strategy to solve complicated problems.

Woman in the hospital with injured leg
Practice Areas
Personal Injury

We can fight for your pain and suffering, lost income, medical bills, and any future lost wages.

Upset woman in the front of the computer with bills
Practice Areas
Medical Malpractice

You have the right to bring a malpractice claim for your medical expenses, lost income and pain and suffering.

Card in the hand
Practice Areas
Consumer Protection

If you have been sued for an unpaid consumer loan, fallen behind on your credit card bills or similar.

Court room
Practice Areas
Commercial Litigation

We can help when you are faced with commercial litigation issues.

We dedicate ourselves to important values

We work hard to fight for your individual case and rights, while providing superior legal services on a timely, effective, and efficient basis. 

Need Help With Your Case?

Proin rhoncus metus aliquet blandit ad placerat sociosqu erat vel letius scelerisque taciti pulvinar.

Got Questions?

Proin rhoncus metus aliquet blandit ad placerat sociosqu erat vel letius scelerisque taciti pulvinar.