STATE OF NEW YORK
________________________________________________________________________
6359
2023-2024 Regular Sessions
IN ASSEMBLY
April 5, 2023
___________
Introduced by M. of A. WEPRIN -- read once and referred to the Committee
on Judiciary
AN ACT to amend the civil practice law and rules, in relation to appeals
to the court of appeals on constitutional grounds
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision (b) of section 5601 of the civil practice law
2 and rules, paragraph 1 as amended by chapter 532 of the laws of 1963, is
3 amended and two new subdivisions (b-1) and (b-2) are added to read as
4 follows:
5 (b) Constitutional grounds. An appeal may be taken to the court of
6 appeals as of right:
7 1. from an order of the appellate division which finally determines an
8 action where there is directly involved a substantial question relating
9 to the construction of the constitution of the state or of the United
10 States; and
11 2. from a judgment of a court of record of original instance which
12 finally determines an action where the only [question] issue involved on
13 the appeal is a substantial question relating to the validity of a stat-
14 utory provision of the state or of the United States under the constitu-
15 tion of the state or of the United States.
16 (b-1) Substantial constitution question. A substantial question raised
17 under subdivision (b) of this section is one calling for the
18 construction or application of:
19 1. a provision of the United States constitution that has not been
20 conclusively reviewed by the United States supreme court, or that has
21 been conclusively reviewed by the United States supreme court, but the
22 factual circumstances in the appeal are sufficiently unique and differ-
23 ent from the federal courts' application of the constitutional
24 provision;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10426-01-3
A. 6359 2
1 2. a provision of the state constitution that has not been conclusive-
2 ly reviewed by the court of appeals; or
3 3. a provision of the state constitution that has been conclusively
4 reviewed by the court of appeals, but:
5 (i) the factual circumstances in the appeal are sufficiently unique
6 from the case or cases determined under that provision by the court of
7 appeals; or
8 (ii) there is only one decision reviewing that provision and a
9 dissenting opinion was filed and the appealing party contends that the
10 prior decision should be reconsidered.
11 (b-2) Res judicata and collateral estoppel effect of a dismissal for
12 failure to raise a substantial constitutional question. An appeal as of
13 right dismissed for failure to raise a substantial constitutional ques-
14 tion shall not be deemed an adjudication on the merits of the constitu-
15 tional question raised on appeal in the same or any other action or
16 court.
17 § 2. Subdivision 1 of section 5515 of the civil practice law and
18 rules, as amended by chapter 491 of the laws of 1975, is amended to read
19 as follows:
20 1. An appeal shall be taken by serving on the adverse party a notice
21 of appeal and filing it in the office where the judgment or order of the
22 court of original instance is entered except that where an order grant-
23 ing permission to appeal is made, the appeal is taken when such order is
24 entered. A notice shall designate the party taking the appeal, the judg-
25 ment or order or specific part of the judgment or order appealed from
26 and the court to which the appeal is taken. Whenever an appeal as of
27 right is taken to the court of appeals pursuant to subdivision (b) of
28 section five thousand six hundred one of this chapter, the notice of
29 appeal shall also specify which ground or grounds listed in paragraph
30 three of such subdivision apply to the appeal, and contain a brief argu-
31 ment as to the application of said ground or grounds.
32 § 3. Subdivision (a) of rule 5522 of the civil practice law and rules,
33 as amended by chapter 682 of the laws of 1986, is amended to read as
34 follows:
35 (a) A court to which an appeal is taken may reverse, affirm, or modi-
36 fy, wholly or in part, any judgment, or order before it, as to any
37 party. The court shall render a final determination or, where necessary
38 or proper, remit to another court for further proceedings. A court
39 reversing or modifying a judgment or order without opinion shall briefly
40 state the grounds of its decision. Whenever the court of appeals
41 dismisses an appeal as of right taken pursuant to subdivision (b) of
42 section five thousand six hundred one of this chapter for failure to
43 raise a substantial constitutional question, the court shall briefly
44 explain the grounds of its finding.
45 § 4. This act shall take effect immediately and shall apply to all
46 actions pending or commenced on and after such effective date.