S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5087
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 6, 2017
                                ___________
 
 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.
                                                            LBD09147-01-7
              

 A. 5087                             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.
   § 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.
   § 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.
   § 4. This act shall take effect immediately and  shall  apply  to  all
 actions pending or commenced on and after such effective date.