The Court of Appeals reviews lower court decisions mainly on preserved issues and only overturns discretionary rulings if there’s an abuse of discretion as a matter of law. It limits its review to ensure courts properly exercise their broad discretion, avoiding overreach.

The Court of Appeals “best serves the litigants and the law by limiting its review to issues that have first been presented to and carefully considered by the trial and intermediate appellate courts.” JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 NY3d 759, 767 (2015). Thus, where the Appellate Division's dismissal of causes of action was premised on a ground not raised before Supreme Court, the Court of Appeals stated that the Appellate Division was “deemed to have reached the issue as a matter of discretion in the interest of justice, and that determination is not reviewable by this court.” Urias v. Daniel P Buttafuoco & Associates, PLLC, 41 NY3d 560, 571-572 (2024).

The Court of Appeals will not, ordinarily, interfere with the Appellate Division's exercise of discretion unless it finds there has been an abuse of that discretion as a matter of law. Since the Appellate Division’s authority is as broad as that of the Trial Judge, “absent an exercise of discretion on its part so egregious that it can be characterized as an abuse as a matter of law, its exercise of discretion is not reviewable by [the Court of Appeals].” Majauskas v. Majauskas, 61 NY2d 481, 494 (1984). Where the Appellate Division is found to have made such a discretionary determination, Court of Appeals review is limited to whether the Appellate Division abused its discretion as a matter of law. DeZimm v. Connelie, 64 NY2d 860, 862 (1985)(Appellate Division’s ruling will not be disturbed by the Court of Appeals unless it finds that there has been “an abuse of discretion as a matter of law”).

In Andon ex rel. Andon v. 302-304 Mott St. Associates, 94 NY2d 740, 745-746 (2000), although the Appellate Division's certification order stated that its decision was “made as a matter of law and not in the exercise of discretion,” the Court of Appeals was “not bound by that characterization.” It would “look to see whether the Appellate Division's decision, regardless of its characterization, nonetheless reflects a discretionary balancing of interests.” Where such a discretionary determination has been made, the Court of Appeals “review is limited to whether the Appellate Division abused its discretion as a matter of law.” 94 NY2d at 745

Where the Appellate Division, in exercising its discretion, “fails to take into account all the various factors entitled to consideration, it commits error of law reviewable by [the Court of Appeals].” Varkonyi v. S. A. Empresa De Viacao Airea Rio Grandense (Varig), 22 NY2d 333, 337 (1968).

In footnote one to his opinion for the court in Varkonyi, Chief Judge Fuld pointed out that “although there is some language in some of the court’s opinions which might be read as suggesting that we may review an issue as to abuse of discretion... only where the courts below have exercised their discretion to accept or retain jurisdiction, there can be no doubt as to our power, as well, to review the question of abuse of discretion where the courts below have decided to reject or refuse jurisdiction.”

“Generally speaking, discretionary issues are not issues of law. But even in such cases it may be urged that the bounds of discretion were exceeded. ‘[T]he inquiry is always pertinent whether in any particular case, discretion was abused, just as inquiry is always pertinent whether there is any evidence to sustain a finding of fact.’” Pell v. Board of Ed. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester Cnty., 34 NY2d 222, 232 (1974).

While the Court of Appeals will generally dismiss an appeal based upon a claim that the Appellate Division has abused its discretion as a matter of law, it does so pursuant to a self-imposed limitation on its powers “not to be found either in the Constitution or in statutes, but only in the opinions of the court itself.” Cohen & Karger, Powers of the New York Court of Appeals, 582 (rev. ed. 1952).

When an issue decided by the Appellate Division was not preserved at the Supreme Court, “the Appellate Division's ruling must be deemed an exercise of its interests of justice jurisdiction.” The Court of Appeals has “no power to review either the Appellate Division's exercise of its discretion to reach that issue, or the issue itself.” Hecker v. State, 20 NY3d 1087 (2013).

Where a determination is made by the Appellate Division as an exercise of its discretion, that determination will be disturbed by the Court of Appeals “only where there is an abuse of discretion as a matter of law.” De Zimm v. Connelie, 64 NY2d 860, 862 (1985); Alliance Pty. Mgt. & Dev. Inc. v. Andrews Avenue Equities, Inc., 70 NY2d 831, 833 (1987). The Court of Appeals “has no power to review either [an] unpreserved error or the Appellate Division's exercise of [its] discretion” in reaching its determination. Elezaj v PJ. Carlin Const. Co., 89 NY2d 992, 994-995 (1997); Pavlou v City of New York, 8 NY3d 961, 963 (2007)(“Because the Appellate Division did not abuse its discretion when it reversed Supreme Court's order granting a new trial, further consideration of plaintiffs' arguments is beyond our review power.”).

In Hecker v. State, 20 NY3d 1087 (2013), the issue decided by the Appellate Division—whether the area in which plaintiff suffered his injury was a “floor, passageway [or] walkway”—was not preserved in the Court of Claims. Therefore, “the Appellate Division's ruling [a 3-2 affirmance] must be deemed an exercise of its interests of justice jurisdiction. We [the Court of Appeals] have no power to review either the Appellate Division's exercise of its discretion to reach that issue, or the issue itself.”

While the Court of Appeals “has no power to review an exercise of discretion by the courts below in the ordinary case..., the possibility that the lower court's discretion was abused does give rise to a question of law that is cognizable in [the Court of Appeals].” Barasch v. Micucci, 49 NY2d 594, 598 (1980). If the Court of Appeals concludes that the Trial Court had abused its discretion in denying appellant's request for relief it would mandate a reversal of the result reached below. (“Although we stress that the decision to grant or deny relief under CPLR 3012 (subd [b]) is ordinarily a matter of the lower courts' discretion, we conclude that this case represents one of those rare instances in which the defendant is entitled to dismissal as a matter of law”).

In People v. Jones, 24 NY3d 623, 627 (2014), defendant was convicted of murder of one person and rape of another person. About 30 years later, defendant filed a motion to vacate the judgment of conviction, based on newly discovered DNA evidence. The Supreme Court’s summary denial of the motion was affirmed and defendant was granted leave to appeal. The Court of Appeals reversed, overturning its jurisprudence of nearly 40 years that “[t]he power to review a discretionary order denying a motion to vacate judgment upon the ground of newly discovered evidence [brought pursuant to CPL 440.10(1)(g) ] ceases at the Appellate Division.”

Although the Court of Appeals is “’prohibited from weighing facts and evidence in noncapital cases, [it is] not precluded from exercising [its] “power to determine whether in a particular judgmental and factual setting there has been an abuse of discretion as a matter of law’ because, in so doing, [it is] not ‘passing on facts as such, but rather considering them to the extent that they are a foundation for the application of law.’” 24 NY3d at 630-631.

The Court of Appeals quoted with approval from the earlier dissent in People v. Crimmins, 38 NY2d 407, 428 (1975), that “whether there has been an abuse of discretion is a question of law, not of fact. It matters not that the discretion which we review necessarily was exercised in a factual setting. And that is so even though we must look at the facts in order to determine whether the discretion was indeed abused.” 24 NY3d at 629.

The Appellate Division's description of its order is not binding on the Court of Appeals. In Levo v. Greenwald, 66 NY2d 962, 963 (1985), although an order recited that the Appellate Division's “reversal was ‘on the law,’ the decision made plain that the appellate court substituted its discretion for that of the trial court.” This left no question of law for the Court of Appeals’ review.

The Appellate Division is a branch of the Supreme Court and, as such, “is vested with the same discretionary power [as the nisi prius court] and may exercise that power, even when there has been no abuse of discretion as a matter of law by the nisi prius court” (Small v. Lorillard Tobacco Co., 94 NY2d 43, 52-53; see also Matter of State of New York v. Ford Motor Co., 74 NY2d 495, 501 [1989). Its “scope of review of a discretionary matter is coextensive with that of Special Term... [It is] not limited to determining whether Special Term abused its discretion. [It] may exercise discretion independently...” Broida v. Bancroft, 103 AD2d 88, 93, 478 NYS2d 333 (2d Dept. 1984). The Court of Appeals “standard of review, however, is far more limited. Where... the Appellate Division affirms a Supreme Court order certifying a class, [it] may review only for an abuse of discretion as a matter of law.” City of New York v. Maul, 14 NY3d 499, 509 (2010).

A trial court's discretionary rulings, such as discovery determinations, are subject to review by the Appellate Division which is vested with the same power and discretion as Special Term and may substitute its own discretion for that of the court below. When it does so, any further review by the Court of Appeals will be limited. Brady v. Ottaway Newspapers, 63 NY2d 1031, 1032-1033 (1984).

In Brady, supra, an action for damages for libel, both parties sought disclosure of confidential investigative reports of the nonparty respondent Division of State Police concerning police scandals which occurred in 1972. “Respondent opposed disclosure on the basis of the ‘public interest’ privilege claiming that release of the reports would trigger reprisals against confidential informants and impair its ability to conduct future investigations.” While Special Term granted the motions, the Appellate Division reversed, on the law, holding Special Term had abused its discretion in ordering disclosure.

The Court of Appeals affirmed, stating: “Whether or not adequate special circumstances have been shown to support discovery against a nonparty is generally a determination to be made upon a review of the facts, and rests within the sound discretion of the court to which application is made... [H]ere the Appellate Division, may review a determination for abuse of discretion; moreover, since it is vested with the same power and discretion as Special Term, the Appellate Division may also substitute its own discretion even in the absence of abuse... which is then reviewable by us only for abuse of discretion as a matter of law.” (citations omitted).

The Court of Appeals found that the Appellate Division had substituted its own discretion for that of Special Term, finding “speculation, fueled by disclosure of the reports, could subject sources to reprisals and imperil any future investigation of a similar nature.” The Court of Appeals found that “the Appellate Division did its own balancing of the special circumstances and disagreed with Special Term's view, on the facts, that simply redacting names would sufficiently protect respondent's interests. Thus, the decision indicates an exercise of discretion by the Appellate Division which the appellants do not even claim to have been an abuse as a matter of law.” 63 NY2d at 1032-1033.

Finally, it is “well settled that a court's failure to exercise the discretion it possesses is, in itself, an abuse of discretion.” (Montgomery v. List, 173 AD3d 1657, 1658, 104 NYS3d 800, 802 (4th Dept. 2019).

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.