I. The Work of the Court

    The Court of Appeals -- New York's highest court -- is composed of its Chief Judge and six Associate Judges, each appointed to a fourteen-year term. Created by the New York State Constitution of 1846, the Court of Appeals was established "to bring harmony and unity into the law."(1)

    The jurisdiction of the Court of Appeals is almost exclusively appellate. Similar to the Supreme Court of the United States and other State courts of last resort, the primary role of the New York Court of Appeals is to unify, clarify and expound upon the law of its jurisdiction for the benefit of the community at large.(2) Reflecting the Court's historical purpose, the State Constitution and the applicable jurisdictional statutes provide few grounds for appeals as of right. Thus, the Court hears most appeals by its own "permission" or "certiorari," granted upon civil motion or criminal leave application. Appeals by permission typically present novel, open and difficult questions of law having Statewide importance. Often these appeals involve issues in which the lower courts of the State are in conflict. Nonetheless, the correction of error by courts below remains a legitimate, if less frequent, justification for this Court's decision to grant review. Civil motions for leave to appeal are determined by the full Court; criminal leave applications are assigned to the Judges individually for resolution. By State Constitution and statute, the Appellate Division can also grant leave to appeal to the Court of Appeals in civil cases, and individual Justices of that court can grant leave to appeal to the Court of Appeals in most criminal cases.

    In addition to appellate jurisdiction, the State Constitution vests the Court of Appeals with power to answer questions of New York law certified to it by a Federal appellate court or another State's court of last resort. Also, the Court of Appeals is the exclusive forum for review of determinations by the State Commission on Judicial Conduct.

    The Judges of the Court collectively decide all appeals and motions. Individually, they decide applications for leave to appeal in criminal cases and emergency show cause orders. For most appeals, the Judges entertain oral argument and write opinions or memoranda setting forth the reasons for their decisions.

    In 1998, the Court and its Judges expeditiously disposed of some 5,000 matters. The Court decided 198 appeals. Also in 1998, the Court decided 1550 motions and 2982 criminal leave applications. A detailed analysis of the Court's work follows.

A. Appeals Calendar and Currency

1. The Calendar

    The Court of Appeals employs two methods of resolving appeals. The principal method is oral argument with full briefing by the parties (normal course). The Court also employs sua sponte merits review of submissions without oral argument (SSM). In 1998, litigants and the public continued to benefit from the prompt calendaring, hearing and disposition of appeals. The average period from filing of a notice of appeal or an order granting leave to appeal to calendaring was approximately six months, about the same as in 1997. Also in 1998, the average period from readiness (all papers served and filed) to calendaring was approximately one and one-half months, again about the same as in 1997. The average time from argument or submission to disposition of an appeal decided in the normal course was 37 days; for all appeals, the average time from argument or submission to disposition was 36 days.

    The average length of time from the filing of a notice of appeal or order granting leave to appeal to the release to the public of a decision in a normal coursed appeal decided in 1998 (including SSM appeals tracked to normal course) was 220 days. For all appeals, including those decided pursuant to the SSM procedure, those dismissed pursuant to Rule 500.3 sua sponte subject matter jurisdictional inquiries (SSD), and those dismissed pursuant to Rule 500.9 for failure to perfect, the average was 168 days.

    Thus, by every measure, the Court maintained its exceptional currency in calendaring and deciding appeals in 1998.

2. Filings

    Three hundred forty nine notices of appeal and orders granting leave to appeal were filed in 1998 (432 were filed in 1997). Two hundred sixty-seven filings were civil matters (compared to 298 in 1997), and 82 were criminal matters (compared to 134 in 1997). The 1997 orders granting leave to appeal included 54 relating to criminal cases involving a single issue, which the Court of Appeals treated, for statistical purposes, as a single appeal.

    The first notice of appeal in a capital case brought under the State's 1995 death penalty statute was filed in 1998 in the Kings County case of People v Darrel K. Harris (the State Constitution provides a mandatory appeal directly to the Court of Appeals from a judgment of conviction and capital sentence). On September 22, 1998, the Court issued an Initial Capital Appeal Management Order (see Rule 510.8[a]) for the case, which remained pending at year's end. In this order, the Court assigned the Capital Defender Office as counsel and set dates for (1) transcription of all proceedings in the case, (2) furnishing to assigned counsel a copy of the record of proceedings, (3) settlement of the record by stipulation or the filing of a motion to settle the record, and (4) filing and serving the settled record on appeal.

    During 1998, 1513 motions were filed, a 4.4% decrease from the 1583 filed in 1997. Nonetheless, the 1998 statistics continue to reflect a significant number of motion filings in the last five years, all of which require substantial judicial and staff effort to process and decide.

    Two thousand nine hundred and fifty-three applications for leave to appeal in criminal cases were assigned to individual Judges of the Court in 1998. On average, each Judge was assigned 451 cases in 1998.

3. Dispositions

(a) Appeals and Writings

    The Court decided 198 appeals in 1998 (124 civil and 74 criminal). Of these decisions, 181 were unanimous. The Court issued 106 majority opinions, four Per Curiam opinions and 44 memoranda. Seventeen dissenting opinions and four concurring opinions were written. The following chart analyzes these 198 appeals by jurisdictional predicate.  Jurisdictional Predicates for Appeals Decided in 1998

(b) Motions

    The Court decided 1550 motions in 1998 -- 78 fewer than in 1997. Each motion is decided upon submitted papers and an individual Judge's written report to the full Court, which is reviewed and voted upon by the full Court. The average period of time from return date to disposition for civil motions for leave to appeal was 61 days, while the average period of time from return date to disposition for all motions was 52 days.

    Of the 1196 motions for leave to appeal in civil cases decided in 1998, the Court granted 7.6%, denied 72.5%, and dismissed 19.9% for jurisdictional defects. These percentages are similar to those for 1996 and 1997 dispositions of civil motions for leave to appeal.

    The Court granted 91 motions for leave to appeal in civil cases in 1998. The most frequently raised issues involved Medicaid and Medicare (public entitlements), arbitration, juvenile rights, torts, municipal law and civil procedure. Other subject matter categories included civil rights, family, insurance, zoning and land use law.

    The number of motions for amicus curiae relief in 1998 remained the same as in 1997; in each year, 88 amicus curiae motions were filed. Given that the Court hears the majority of appeals by its own permission, and that the issues on review are generally open, novel and of Statewide importance, the Bar should take special note that the Court encourages and appreciates receiving amicus curiae submissions. The Court granted 71 of the 88 amicus curiae motions submitted in 1998.

(c) CPL 460.20 Applications

    Individual Judges of the Court granted 57 of the 2982 applications for leave to appeal in criminal cases decided in 1998. Although this number is substantially lower than the 110 granted in 1997, the 1997 number included separate grants of leave to appeal in 54 related cases, which the Court heard in 1998 as a single appeal. Review and determination of applications for leave to appeal in criminal cases constitute a substantial amount of work by the individual Judges of the Court in their home Chambers when Court is not in session in Albany.

    In 1998, on average, 62 days elapsed from the assignment to Judges of applications for leave to appeal in criminal cases to their disposition. The period during which such applications are pending usually includes several weeks for the parties to prepare and file their written arguments.

(d) Review of State Commission on Judicial Conduct Determinations

    In 1998, the Court reviewed two determinations of the State Commission on Judicial Conduct. The sanction of removal determined by the Commission was accepted in both cases. Two orders of removal were entered in cases in which review was not requested. In addition, the Court ordered two suspensions with pay.

(e) Rule 500.17 Certifications


    In 1985, New York State voters passed an amendment to the State Constitution granting the New York Court of Appeals discretionary jurisdiction to review certified questions from certain Federal courts and other courts of last resort (NY Const, art VI, 3[b][9]). Thereafter, this Court promulgated section 500.17 of its Rules of Practice, which provides that whenever it appears to the Supreme Court of the United States, any United States Court of Appeals or a court of last resort of any other State that determinative questions of New York law are involved in a cause pending before it for which no controlling precedent from this Court exists, that court may certify the dispositive questions of law to this Court.

    After a court certifies a question to this Court pursuant to Rule 500.17, the matter is referred to an individual Judge of the Court, who circulates a thorough written report for the entire Court analyzing whether the certification should be accepted. When the Court of Appeals accepts a certified question, the matter is treated as an appeal and, thus, as a manifestly important matter. While the certified question may be determined following full briefing and oral argument or pursuant to the Court's SSM procedures (see Rule 500.4), the ordinary, preferred method of handling is full briefing and oral argument on an accelerated track and scheduling basis.

Overall Certified Question Statistics

Certified questions accepted, rejected and decided
During the first year the procedure was available -- 1986 -- the United States Court of Appeals for the Second Circuit certified one question to the New York Court of Appeals. The number of certifications remained low for several years, and gradually rose to between two and four per year. In 1998, the Court of Appeals received 10 certifications, including its first from a court other than the Second Circuit. In September 1998, the Court received a certification from the United States Court of Appeals for the Eleventh Circuit. In the Matter of Southeast Banking Corp. was argued on March 29, 1999. 

Requests for Certifications, 1986-1998

    This increase demonstrates that litigants in Federal courts, and the courts themselves, recognize the benefits of the certification process. The process promotes Federal-State comity by allowing the State's court of last resort to rule on unsettled issues of State law, and relieves both litigants and Federal courts of the uncertainty of guessing how the State court would answer the controlling questions of State law presented. Moreover, the procedures adopted by the New York State Court of Appeals have ensured the utility of the process by eliminating excessive delays that might otherwise deter certifications.

    Of the 37 certifications received, this Court has accepted 33. The Court has declined to accept only three certifications -- each in a Per Curiam opinion spelling out the grounds for the declination.

    In two other matters, the Federal court itself withdrew certifications (Riordan v Nationwide Mut. Fire Ins. Co., 984 F2d 69 [withdrawal before acceptance] and M.J.F.M. Kools v Citibank, N.A. [withdrawal after acceptance, but before argument]). Early in its experience with the certification process, the Court of Appeals issued a Per Curiam opinion declining to answer another certified question it had previously accepted, notwithstanding briefing and argument, because it became apparent that the question did not satisfy the requirement that it "may be determinative" of the cause (Retail Software Serv. Inc. v Lashlee, 71 NY2d 788).

    In all, the Court has answered 25 certifications, many involving more than one question of law. One qualified for the Court's expedited SSM procedure. The Court has issued 23 signed majority opinions (as distinct from memoranda or summary decision list entries), two concurring opinions and three dissenting opinions.

Disposition times
The average period from receipt of initial certification papers to the Court's order accepting or declining review is 40 days. The average period from acceptance of a certification to disposition is 181 days, or six months. (This calculation does not include Norcon Power Partners, L.P. v Niagara Mohawk Power Corp., 92 NY2d 458, the calendaring of which was long delayed by the parties' settlement negotiations.) Where review was expedited, as is usual, disposition time has been as short as 72 days (see, Joblon v Solow, 91 NY2d 457).

1998 Certified Question Statistics

    Of the ten certifications received in 1998, this Court accepted eight and declined one certification from the United States Court of Appeals for the Second Circuit (Yesil v Reno). The Court also accepted one certified question from the United States Court of Appeals for the Eleventh Circuit (In the Matter of Southeast Banking Corp.).

    The Court answered certified questions in five cases, including two pending from 1997. Six certified questions accepted by the Court remained pending for review on the merits at the end of 1998.

The Report of the Council on Judicial Administration and Committee on Federal Courts

    In 1998, the Council on Judicial Administration and Committee on Federal Courts of the Association of the Bar of the City of New York issued its Report and Recommendations on Second Circuit Certification of Determinative State Law Issues to the New York Court of Appeals (hereafter "ABCNY Report"), which recommends that this Court's practice of accepting or rejecting certified questions within 60 days after certification be incorporated into a formal rule (ABCNY Report, at 7). This Court's history of expeditiously determining whether to accept certifications suggests that such a rule is unnecessary. Moreover, the time within which this Court can accept or reject a certified question is not entirely within its control, because the Court cannot begin its consideration of a certification request until the complete file has been received from the certifying court. Receipt of the file has taken as long as 15 days.

    The ABCNY Report proposes a mechanism for "affording exigent treatment to certified questions that are urgent or require a decision by a certain date" (ABCNY Report, at 8). This Court has a longstanding practice of entertaining -- and granting, where appropriate -- letter requests for expedited treatment, which has also been employed in the certified question context, without the need for formal procedures.

    Finally, the ABCNY Report recommends that "[w]henever practicable, the New York Court of Appeals should answer the certified question on the basis of the record and briefs filed in the Second Circuit," rather than requiring the parties to serve and file new briefs on the certified question. However, the record and briefs in cases giving rise to certifications typically contain material extraneous to the specific question of State law posed to this Court, and are not singly directed to the State law issue.

(f) Comparison of Dispositions (1989-1998)

    To conclude this analysis of 1998 Court of Appeals dispositions of all matters, the table below compares dispositions occurring in the years 1989 through 1998.

Matters Decided, 1989-1998

B. Sua Sponte Monitoring of Subject Matter Jurisdiction and Merits Evaluation of Appeals (Rule 500.3 and Rule 500.4)

1. Rule 500.3 (Jurisdiction)

    The jurisdiction of the Court is narrowly defined by the State Constitution and applicable statutes. Following the filing of a notice of appeal or receipt of an order granting leave to appeal to this Court, an appellant must file two copies of a jurisdictional statement in accordance with Rule 500.2. Pursuant to Rule 500.3, the Clerk examines all jurisdictional statements filed for possible lack of subject matter jurisdiction. This review usually occurs the same day a jurisdictional statement is filed, and written notice to counsel of any potential impediment follows immediately. After the parties respond to the Clerk's inquiry, the matter is referred to the Central Legal Research Staff for preparation of a preliminary report prior to disposition by the full Court.

    In 1998, 99 appeals were subject to Rule 500.3 inquiry, and all but seven were withdrawn, dismissed sua sponte or on motion, or transferred to the Appellate Division (five inquiries were pending at year's end). This sua sponte dismissal (SSD) screening process remains valuable to the public, the Court and the Bar because it identifies at the earliest possible stage of the appeal process whether an appeal is jurisdictionally defective and, hence, destined for dismissal or transfer by the Court.

2. Rule 500.4 (Merits)

    Through its sua sponte merits (SSM) procedure, the Court decides appeals expeditiously on written submissions without oral argument. In 1998, the Court used the SSM procedure about as often as it did in 1997: six per cent of the appeals determined in 1998 were decided upon SSM review.

    Of the 349 appeals filed in 1998, 21 (6%) were selected for SSM consideration. Of these, two were directed to full briefing and argument -- as were two appeals initially designated for SSM review in 1997 -- and one was discontinued before assignment to the Court. Five appeals remained pending assignment to the Court at the close of 1998. The remaining 13 were submitted to the Court along with two other SSM appeals pending from 1997. Thus, the Court reviewed 15 SSM appeals in 1998 -- seven criminal and eight civil.

    The Court issued 13 unanimous decisions following SSM review, which included one signed opinion, eight memoranda and four decision list entries (i.e., a brief explanatory rationale or a decision on the basis of the writing from a court below). Among these 13, six were affirmances, four were reversals and three were dismissals. Two submitted SSMs remained pending at the end of 1998.

    The average length of time from the filing of a notice of appeal or order granting leave to appeal to the external disposition of an SSM decided in 1998 was 164 days.

C. Court Rules

    In 1998, the Court's Rules of Practice in noncapital matters (22 NYCRR Part 500) were revised in two respects. Section 500.2(c) was amended to delete the duplicative word "statutory" in the first sentence. Section 500.10(a) was amended to advise that specific arrangements for telephone conference calls regarding criminal leave applications may be made with the assigned Judge.

    Also in 1998, the Court of Appeals approved a new Part 515 of the Rules of the Court of Appeals. This Part, which established Standards for Appellate Counsel and State Post-conviction Counsel in Capital Cases, is discussed in Part II(E) (Death Penalty) of this Report.

    Part 520, Rules for the Admission of Attorneys and Counselors at Law, was substantially revised in 1998. The changes to Part 520 are detailed in Part II(D) (Attorneys' Roll Office) of this Report.


1. Historical Resume of the Judiciary Article, Problems Relating to Judicial Administration and Organization, Vol IX, 1938 New York State Const. Conv. Comm., at 6.

2. See Rules of the Supreme Court of the United States, Rule 10 (Considerations Governing Review on Writ of Certiorari); Cope, Discretionary Review of the Decisions of Intermediate Appellate Courts: A Comparison of Florida's System with Those of Other States and the Federal System, 45 Fla L Rev 21 (1993).

3. In connection with the questions themselves, two added observations are pertinent.  First, in some but not all instances, the Court of Appeals for the Second Circuit has added the helpful note that, while it wished to have answers to the questions as framed, it did not intend to restrict the Court of Appeals from additional guidance it might wish to offer on the State law issues (see, e.g., West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co., 49 F 3d 48 [2d Cir. 1995]; Consorti v Owens-Corning Fiberglas Corp., 45 F 3d 48 [2d Cir. 1995]; Madden v Creative Servs., 24 F 3d 394, 397 [2d Cir. 1994]).  Second, the requirement of Second Circuit Rule 0.27, that the question certified "will control the outcome of a case pending" before that court, has not been uniformly reflected in the certification orders.