S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7050

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             April 30, 2013
                               ___________

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:

  Section 1. Subdivision (b) of section 5601 of the civil  practice  law
and rules, paragraph 1 as amended by chapter 532 of the laws of 1963, is
amended  and  two  new subdivisions (b-1) and (b-2) are added to read as
follows:
  (b) Constitutional grounds. An appeal may be taken  to  the  court  of
appeals as of right:
  1. from an order of the appellate division which finally determines an
action  where there is directly involved A SUBSTANTIAL QUESTION RELATING
TO the construction of the constitution of the state or  of  the  United
States; and
  2.  from  a  judgment  of a court of record of original instance which
finally determines an action where the only [question] ISSUE involved on
the appeal is A SUBSTANTIAL QUESTION RELATING TO the validity of a stat-
utory provision of the state or of the United States under the constitu-
tion of the state or of the United States.
  (B-1) SUBSTANTIAL CONSTITUTION QUESTION. A SUBSTANTIAL QUESTION RAISED
UNDER  SUBDIVISION  (B)  OF  THIS  SECTION  IS  ONE  CALLING   FOR   THE
CONSTRUCTION OR APPLICATION OF:
  1.  A  PROVISION  OF  THE UNITED STATES CONSTITUTION THAT HAS NOT BEEN
CONCLUSIVELY REVIEWED BY THE UNITED STATES SUPREME COURT,  OR  THAT  HAS
BEEN  CONCLUSIVELY  REVIEWED BY THE UNITED STATES SUPREME COURT, BUT THE
FACTUAL CIRCUMSTANCES IN THE APPEAL ARE SUFFICIENTLY UNIQUE AND  DIFFER-
ENT   FROM   THE  FEDERAL  COURTS'  APPLICATION  OF  THE  CONSTITUTIONAL
PROVISION;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10300-01-3

              

A. 7050                             2

  2. A PROVISION OF THE STATE CONSTITUTION THAT HAS NOT BEEN CONCLUSIVE-
LY REVIEWED BY THE COURT OF APPEALS; OR
  3.  A  PROVISION  OF THE STATE CONSTITUTION THAT HAS BEEN CONCLUSIVELY
REVIEWED BY THE COURT OF APPEALS, BUT:
  (A) THE FACTUAL CIRCUMSTANCES IN THE APPEAL  ARE  SUFFICIENTLY  UNIQUE
FROM  THE  CASE OR CASES DETERMINED UNDER THAT PROVISION BY THE COURT OF
APPEALS; OR
  (B) THERE IS ONLY ONE DECISION REVIEWING THAT PROVISION AND A DISSENT-
ING OPINION WAS FILED AND THE APPEALING PARTY CONTENDS  THAT  THE  PRIOR
DECISION SHOULD BE RECONSIDERED.
  (B-2)  RES  JUDICATA AND COLLATERAL ESTOPPEL EFFECT OF A DISMISSAL FOR
FAILURE TO RAISE A SUBSTANTIAL CONSTITUTIONAL QUESTION. AN APPEAL AS  OF
RIGHT  DISMISSED FOR FAILURE TO RAISE A SUBSTANTIAL CONSTITUTIONAL QUES-
TION SHALL NOT BE DEEMED AN ADJUDICATION ON THE MERITS OF THE  CONSTITU-
TIONAL  QUESTION  RAISED  ON  APPEAL  IN THE SAME OR ANY OTHER ACTION OR
COURT.
  S 2. Subdivision 1 of section 5515  of  the  civil  practice  law  and
rules, as amended by chapter 491 of the laws of 1975, is amended to read
as follows:
  1.  An  appeal shall be taken by serving on the adverse party a notice
of appeal and filing it in the office where the judgment or order of the
court of original instance is entered except that where an order  grant-
ing permission to appeal is made, the appeal is taken when such order is
entered. A notice shall designate the party taking the appeal, the judg-
ment  or  order  or specific part of the judgment or order appealed from
and the court to which the appeal is taken.   WHENEVER AN APPEAL  AS  OF
RIGHT  IS  TAKEN  TO THE COURT OF APPEALS PURSUANT TO SUBDIVISION (B) OF
SECTION FIVE THOUSAND SIX HUNDRED ONE OF THIS  CHAPTER,  THE  NOTICE  OF
APPEAL  SHALL  ALSO  SPECIFY WHICH GROUND OR GROUNDS LISTED IN PARAGRAPH
THREE OF SUCH SUBDIVISION APPLY TO THE APPEAL, AND CONTAIN A BRIEF ARGU-
MENT AS TO THE APPLICATION OF SAID GROUND OR GROUNDS.
  S 3. Subdivision (a) of rule 5522 of the civil practice law and rules,
as amended by chapter 682 of the laws of 1986, is  amended  to  read  as
follows:
  (a)  A court to which an appeal is taken may reverse, affirm, or modi-
fy, wholly or in part, any judgment, or  order  before  it,  as  to  any
party.  The court shall render a final determination or, where necessary
or  proper,  remit  to  another  court  for further proceedings. A court
reversing or modifying a judgment or order without opinion shall briefly
state the grounds of its  decision.    WHENEVER  THE  COURT  OF  APPEALS
DISMISSES  AN  APPEAL  AS  OF RIGHT TAKEN PURSUANT TO SUBDIVISION (B) OF
SECTION FIVE THOUSAND SIX HUNDRED ONE OF THIS  CHAPTER  FOR  FAILURE  TO
RAISE  A  SUBSTANTIAL  CONSTITUTIONAL  QUESTION, THE COURT SHALL BRIEFLY
EXPLAIN THE GROUNDS OF ITS FINDING.
  S 4. This act shall take effect immediately and  shall  apply  to  all
actions pending or commenced on and after such effective date.