|About the Court
Overview | Origins | Creation | Jurisdiction | Today
An Overview of the Appellate Division
The Appellate Division is New
York State's intermediate level appellate court. It hears appeals
from trial courts and has jurisdiction to hear certain original
proceedings commenced in or transferred to it as provided by law.
In determining appeals it has power to review issues of law, fact,
and discretion arising in civil and criminal cases. Appeals from
the Appellate Division are taken to the Court of Appeals, the State's
highest court. The greater part of all appellate review in New
York State is provided by the Appellate Division.
The State of New York is divided
into four Judicial Departments. Each Department of the Appellate
Division exercises its jurisdiction in a separate geographic region.
The Second Department includes just over 8% of New York's land
area and contains slightly more than one-half of the State's population.
It is comprised of the 10 downstate counties of Richmond, Kings,
Queens, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland,
and Putnam. The court hears civil appeals from the Supreme Court,
Surrogate's Court, Family Court, and Court of Claims and criminal
appeals from the Supreme Court and County Court in those 10 counties.
Demographically it ranges from highly urban in the New York City
counties of Kings (Brooklyn), Queens, and parts of Richmond (Staten
Island), suburban in Nassau, Westchester, and parts of Richmond,
Suffolk, and Rockland, and relatively rural in Orange, Dutchess,
Putnam, and parts of Suffolk and Rockland. The courthouse of the
Appellate Division, Second Department, is located in Kings County
in the Brooklyn Heights Historic District.
The Supreme Court, of which
the Appellate Division is a part, is New York State's principal
court, with a branch in each of the State's 62 counties. The Justices
of the Supreme Court are elected to 14-year terms by the voters
of their respective judicial districts; there are 13 such districts
in New York State. All Supreme Court Justices have a mandatory
retirement age of 70.
Retired Justices may be certified
for additional service on the Supreme Court or the Appellate Division
for two-year periods. No Justice may serve past the age of 76.
The Justices of the Appellate Division are designated by the Governor
from among the Justices of the Supreme Court. The Governor also
designates the Presiding Justice in each Department. The State
Constitution fixes the number of Justices on the bench of the Second
Department at seven, but in the event that the court certifies
that additional Justices are necessary for the speedy disposition
of the business before the court, the Governor may designate additional
Justices to serve as long as the need exists. At full complement,
twenty-two Justices sit on the Second Department, seven on
the constitutional bench and
fifteen as Additional Justices.
|A History of the Court
of Appellate Review in New York
The forerunner of today's Supreme
Court, the Supreme Court of Judicature, was created in 1691. Its
Justices sat as trial judges in circuit courts and sat together
several times a year to make rulings on points of law raised in
Supreme Court pleadings or in circuit court trials and in an appellate
role to review and correct errors made by judges of inferior courts.
During the colonial era appeals from the Supreme Court of Judicature
lay to the Royal Governor and his council, sitting as a court for
the correction of errors and appeals. Under New York's first Constitution,
adopted in 1777 during the Revolutionary War, the jurisdiction
of the Supreme Court of Judicature was continued largely unchanged
and final appellate review was vested in a new tribunal called
the Court for the Trial of Impeachments and the Correction of Errors.
In 1846 the State's court system
was extensively reorganized. The former Court of Chancery was abolished
and the Supreme Court of Judicature was reorganized and replaced
by a new Supreme Court that became the State's highest court of
original, unlimited jurisdiction in both law and equity. The Court
for the Trial of Impeachments and the Correction of Errors was
replaced by the Court of Appeals. Appeals from the Trial Terms
of the Supreme Court and from lower civil courts were to be decided
in a General Term of the Supreme Court in each of eight judicial
districts. A designated Presiding Justice and at least two of the
three additional Supreme Court Justices in each judicial district
constituted the General Term.
A new judiciary article of the
Constitution was adopted in 1869 which organized the State into
four judicial departments and authorized the creation of not more
than four General Terms with a Presiding Justice and not more than
three Associate Justices in each department to be appointed by
the Governor and to sit in panels of three. In 1882 the State Constitution
was amended to create a fifth department. Justices of the Supreme
Court who were appointed to serve on the bench of the General Term
during this period continued to serve as trial judges and only
exercised their appellate powers while sitting in the General Term
when it was in session.
In 1890 a commission studied
the State judiciary and made numerous recommendations for change.
Eventually these recommendations were referred to a constitutional
convention held in 1894.
The Creation of the Appellate Division by the Constitution of 1894
It was at the Constitutional
Convention of 1894 that the present Appellate Division of the Supreme
Court was created. The intermediate appellate court of the State
was renamed the Appellate Division rather than the General Term.
The State was divided into four Judicial Departments and the tribunal
within each Department was given the independence to control the
place of its sessions and to appoint its clerk. The Governor was
given the power to designate Justices of the Appellate Division
for fixed five-year terms from all the Justices elected to the
Supreme Court. Appellate Division Justices were relieved of all
other duties so that there could be the fullest opportunity for
consultation and deliberation. It was intended that court sit in
panels of five Justices, four would constitute a quorum, and the
concurrence of three would be necessary for a decision.
The reforms of the Constitution
of 1894 strengthened the intermediate tier of appellate review
and made a clearer demarcation between the functions of the Court
of Appeals and the Appellate Division. The principal purpose of
the Court of Appeals was "reaffirmed as declaring and settling
the law rather than considering the justice of particular cases
on their facts." At the same time, it was intended that the
newly created Appellate Division would provide the "sole appellate
review for the vast majority of cases, so that the Court of Appeals
could devote its attention to articulating general principles and
reconciling conflicts among the lower courts." It was hoped
that the strengthening of the intermediate appellate tier would
lead to a higher quality of appellate review and that, as a result,
most litigants would be satisfied with the quality of appellate
justice received in the Appellate Division and would not seek further
review in the Court of Appeals.
In 1899 the Constitution was
amended to provide that in the event that a Department of the Appellate
Division certified that one or more additional Justices were necessary
for the speedy disposition of the business before it, the Governor
was empowered to temporarily designate additional Justices to serve
in that Department. The present constitutional provision was adopted
in 1961 and it continues the basic scheme of the authors of the
constitutional provision of 1894.
The Jurisdiction of the Appellate Division
The Constitution of 1894 provided
that the Appellate Division was to succeed to the jurisdiction
of the former General Terms and was to have such additional jurisdiction
as might be conferred by the Legislature. Thus the source of the
jurisdiction of the Appellate Division has historically been found
both in the Constitution and in statutory law. The present constitutional
provision provides that the Departments of the Appellate Division
shall have all the jurisdiction possessed by them on its effective
date and such other jurisdiction as may be prescribed by law, with
the proviso that the right to appeal to the Appellate Division
from intermediate orders or judgments may be limited or conditioned
In civil cases originating in
the Supreme Court, Surrogate's Court, and Court of Claims, most
orders, judgments, and decrees are appealable to the Appellate
Division as of right, as are dispositional orders of the Family
Court. Appeals from intermediate orders in CPLR article 78 proceedings
and in most proceedings commenced in the Family Court are appealable
only by permission. In criminal actions, appeals to the Appellate
Division are generally authorized as of right by the defendant
from a judgment or a sentence. Pre-judgment orders are not appealable
by a criminal defendant, but certain post-judgment orders are appealable
by the defendant only by permission. The People may appeal as of
right from certain pre- and post-judgment orders and sentences.
Appeals as of right are taken by filing a notice of appeal in the
office of the clerk of the court in which the order or judgment
appealed from was made and appeals by permission are taken by making
a motion for leave to appeal and obtaining an order granting such
In addition to its appellate
jurisdiction, the Appellate Division is also required to entertain
certain original proceedings. These include, among others, special
proceedings against certain judicial officers, transferred CPLR
article 78 proceedings to review determinations of administrative
bodies or officers made after a hearing at which evidence was taken,
proceedings to review certain determinations of the New York State
Division of Human Rights, habeas corpus proceedings, and proceedings
regarding the professional discipline of attorneys.
In the process of deciding an
appeal, appellate courts must review the claims of the appellant
that the court from which the appeal was taken made certain errors
affecting the order or judgment on appeal. Unlike the Court of
Appeals, which, with limited exceptions, has only the power to
review errors of law, the Appellate Division has broad power to
review questions of law, findings of fact, and exercises of discretion.
Thus the Appellate Division
has both appellate and original jurisdiction over a wide variety
of matters. It has broad powers to review errors of law, findings
of fact, and exercises of discretion, and somewhat more circumscribed
powers of review in original special proceedings. This statutory
scheme is in general conformity with the intent of the framers
of the Constitution of 1894 that the principal purpose of the Appellate
Division was to be the promotion of substantial justice by the
correction of errors and the screening of cases for the Court of
The Appellate Division, Second Department, Today
The broad grant of jurisdiction
and powers of review to the Appellate Division, the State's population
growth, and the increasingly litigious nature of society have resulted
in an enormous expansion of the number of appeals, special proceedings,
and associated motions presented to the Appellate Division, Second
Department, for determination. When the boundaries of the Second,
Third, and Fourth Departments were drawn in 1894, it was intended
that each be "equal in population, as nearly as may be." Originally,
the judicial complement of the Second Department was five Justices.
In response to an increased caseload in all Departments, the Constitution
was amended in 1925 to increase the total number of Justices in
each Department to seven. Since that time demographic changes in
the State have radically altered the populations of the counties
served by each of the Departments and thereby altered the quantity
of judicial business each has had to process. After World War II
the suburbs of Nassau and Westchester Counties began to grow rapidly,
as did the residential areas on Staten Island after the completion
of the Verrazano Bridge in 1964. In 1966 the caseload of the Second
Department exceeded that of the First Department for the first
time. Its work has continued to burgeon, requiring the repeated
augmentation of its complement of Justices by special designation
of the Governor. In the early 1960s, the number of Justices in
the Second Department grew to eight; in the early 1970s, there
were ten; in 1976 there were twelve; and, in 1981, the Second Department
had fifteen Justices.
During the 1980s the litigation
in the courts of the 10 counties comprising the Second Judicial
Department continued to grow with the increase of the population
of those counties and with a large increase in criminal cases.
However the judicial and non-judicial staffing needed to process
the appeals generated by that growth did not increase proportionately.
By the late 1980s and early 1990s a large backlog of undecided
appeals had arisen in the Second Department. It took almost two
years for a perfected appeal to reach the day calendar for oral
argument. In 1989 the Governor and Chief Judge appointed a joint
task force to study the escalating caseloads of all the Departments
of the Appellate Division and in 1993 the Second Department issued
a report entitled Justice Delayed that detailed the situation and
the efforts the court had made to cope with the caseload crisis.
In January 1994 the Governor designated five Additional Justices
to the bench of the Second Department, thereby increasing the total
number of its Justices to 20. The court added an additional sitting
per week and, with the assistance of a program that transferred
submitted cases to the other three Departments for determination,
the 3,000-case backlog was eliminated by 1998. In 1996 the Governor
designated a twenty-first Justice and in June 2002, yet another
was added to increase the court's judicial complement to
22. It is presently current in its work.
The Federal census of the United
States in 2000 revealed that the 10 counties of the Second Department
contained 51.75% of the State's residents, a population exceeding
that served by the three other departments combined. The court
now has 37% of the Justices assigned to the Appellate Division
statewide and in 2001 it produced 42% of all Appellate Division
dispositions of argued or submitted cases.