Page 17 - Court of Appeal and Appellate Practice

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Court of Appeals and Appellate Practice | MONDAY, AUGUST 25, 2014 | S17

APPELLATE PRACTICE: THRESHOLD ISSUES

By Harry Steinberg

What’s Your Problem?

Are You Aggrieved?

G

rammarians debate the distinction

between “can” and “may,” the for-
mer meaning “is able” the latter
meaning “is permitted.”1 What can lawyers
can learn from the distinction between can
and may? Simply this, that there are times
when parties can appeal from an order but
may not because, although the parties may
have felt that they “lost,” or are dissatisied
with some aspect of an order, they may not

necessarily be aggrieved by that loss or out-
come and, therefore, may not appeal.
CPLR 5511 lays down the law as to aggrieve-
ment:
An aggrieved party or a person sub-
stituted for him may appeal from any
appealable judgment or order except

one entered upon the default of the
aggrieved party.

This directive sounds about as clear and
simple as anything in the CPLR and yet law- when considering whether they may appeal: and the limousine defendants’ cross-claims
yers, often to their embarrassment, ind that First, a person is aggrieved when he or against the shuttle defendants. The limousine
their appeals have been dismissed because she asks for relief but that relief is denied defendants appealed, seeking reinstatement
they did not stop to consider whether they in whole or in part. Second, a person is of both plaintiffs’ complaint and their own
were actually aggrieved by the order from aggrieved when someone asks for relief cross-claims against the shuttle defendants.
which they were seeking to appeal.
against him or her, which the person Plaintiffs, however, did not appeal. Instead,

One problem is that the aggrievement opposes, and the relief is granted in plaintiffs served what they characterized
requirement often lies under the radar. Many whole or in part.4
as a respondents’ brief urging the reinstate-
decisions dismissing an appeal for lack of Put more bluntly, a party wishing to appeal, ment of their complaint against the shuttle
aggrievement do so in brief, cryptic orders must have some skin in the game,5 i.e., some- defendants.
with virtually no explanation or analysis as thing real at stake.
After an extensive discussion of the history
to just why the now-former appellants are not Mixon presents a not unusual situation and nature of the aggrievement requirement
aggrieved. One exception to such orders is arising from a rear-end motor vehicle colli- and how it has been treated by the courts
Mixon v. TBV,2 in which Judge Peter Skelos, of sion. Plaintiffs were passengers in an airport over the years, Judge Skelos, applying the
the Appellate Division, Second Department, shuttle that was hit from the rear by a limou- two-part test stated above, came to the fol-

provided an excellent discussion of the issue sine. Plaintiffs commenced an action against lowing conclusions:
and the various ways and means by which the driver and owner of the limousine that • First, the court granted the limousine
it has been defined and treated over the struck the shuttle and also against the driver defendants’ motion to strike plaintiffs’ respon-
years.
and owner of the shuttle, plaintiffs’ theory dents’ brief because plaintiffs » Page S21
The question of whether an appealing being that the shuttle driver had not stored
party is aggrieved, is not to be taken lightly. the luggage properly and, as a result of the
As Judge Skelos put it: “[T]he procedural collision, they sustained additional injuries HARRY STEINBERG is a member of Lester Schwab
posture of the case presents a threshold because they were struck by loose luggage.6
Katz & Dwyer, where his practice focuses on appeals
issue concerning an essential element of The shuttle defendants moved for summa- and major motions in personal injury, negligence,
appellate jurisdiction, i.e., the question of ry judgment dismissing plaintiffs’ complaint
aggrievement.”3
and the cross-claims of the limousine defen- products liability, construction accident and insur-
Ultimately, Judge Skelos concluded, wheth- dants. The motion court, inding no issues of ance cases.
er a party is aggrieved can be determined fact, granted the shuttle defendants’ motion
by a two-part test that counsel should apply
and dismissed both plaintiffs’ complaint