Motion for Leave to Appeal

Not every adverse ruling can be appealed simply by filing a notice. For certain orders — and for most cases a party wants to bring before New York’s highest court — you must first ask the court for permission. That request is made through a motion for leave to appeal, one of the more difficult and selective steps in New York appellate practice. Understanding when leave is required, and what a successful motion must show, is essential before committing time and resources to seeking it.

Appeal as of Right vs. Appeal by Permission

New York divides appellate review into two routes, and the one that applies to your order determines how you proceed:

• Appeal as of right. Final judgments and many intermediate orders may be appealed automatically. You file a notice of appeal and the appellate court is obligated to hear the case. The right belongs to you.
• Appeal by permission (leave). Some orders are not appealable as of right. For these, the appellate court first decides whether it will hear the matter at all. You ask for that permission by motion, and the court has discretion to grant or deny it. If leave is denied, the order stands and there is generally no further review.

Choosing the wrong route can be fatal. Filing a notice of appeal where leave is required, or moving for leave where an appeal lies as of right, can cause the appeal to be dismissed at the outset. Sorting this out is one of the first things an appellate attorney evaluates, alongside identifying the strength of your grounds for appeal.

Leave to Appeal to the Appellate Division

At the intermediate level, many orders reach the Appellate Division as of right. But certain non-final orders — rulings that do not finally dispose of the case — may require permission. When leave is needed, it is sought by motion addressed to the court, asking it to permit an appeal from an order not otherwise reviewable at that stage.

Because the line between orders appealable as of right and those requiring permission is not always obvious, this determination should be made carefully and early — an order that looks routine may in fact require a leave motion, and the deadline runs while you decide. Our overview of the appeals process in New York explains how intermediate appeals fit into the larger picture.

Appeals to the New York Court of Appeals Are Mostly by Permission

New York’s highest court is the New York Court of Appeals, in Albany. It does not exist to correct ordinary errors; it is a court of last resort that takes a limited number of cases each year, and the overwhelming majority of civil cases reach it only by permission. Its practice is governed by 22 NYCRR Part 500.

When leave is required, permission can come from either of two courts:

• The Appellate Division may grant leave to appeal its own order to the Court of Appeals; or
• The Court of Appeals itself may grant leave, on a motion made directly to it.

Only a narrow category of cases comes to the Court of Appeals as of right, including those in which a substantial constitutional question is directly involved, and those in which there was a dissent on a question of law at the Appellate Division in favor of the party taking the appeal. Outside these limited situations, reaching the Court of Appeals depends entirely on persuading one of the two courts that the case warrants its attention — a high bar.

The Deadline for a Motion for Leave

A motion for leave is governed by a strict, unforgiving time limit. As a general rule, it must be made within 30 days from service of the order appealed from with notice of entry — the same trigger that governs an ordinary notice of appeal, rather than the date the court issued its decision. The precise calculation depends on the court and how service was made, and additional time may apply when service is by mail. Because a missed deadline can extinguish the right to seek review, confirm exactly when and how notice of entry was served, and move well before the deadline rather than on the final day.

What a Leave Motion Must Show

A motion for leave is not a second chance to reargue the merits as if the lower court simply got it wrong. The court is not asking whether it disagrees with the result; it is asking whether the case presents a question important enough to justify its limited attention. The factors that tend to persuade a court include:

• Issues of statewide importance — questions whose answer will affect cases well beyond the parties before the court;
• Conflicts among the Departments — where the Appellate Division Departments have reached inconsistent results on the same legal question, leaving the law unsettled; and
• Novel or significant legal questions — issues not squarely decided, or with broad consequences for how the law is applied, where guidance from a higher court would resolve genuine uncertainty.

A strong leave motion frames the case around these criteria, explaining concisely why the legal question matters to more than just the parties, rather than dwelling only on why the movant should have won.

Obtaining Leave Is Difficult and Selective

It is important to be candid: getting leave to appeal is hard. Only a small fraction of applications are granted. These courts receive far more requests than they can take and are designed to be selective, so most motions for leave are denied — and a denial is generally the end of the road for that issue. This does not mean a leave motion is not worth making; in the right case it is the only path to review. But the decision should be made with clear, honest expectations about the likelihood of success.

Discretionary Review in Federal Practice

Permission-based review is not unique to New York. Federal practice has its own discretionary mechanisms, offered here as neutral general facts rather than as a description of this firm’s practice:

• Interlocutory review under 28 U.S.C. § 1292(b). A federal district court may certify an otherwise non-final order for immediate appeal when it involves a controlling question of law as to which there is substantial ground for difference of opinion — and even then, the court of appeals has discretion whether to take it.
• Supreme Court review by certiorari. Review in the United States Supreme Court is almost entirely discretionary; the Court grants only a small fraction of the petitions for a writ of certiorari it receives each term.

In both systems, much appellate review beyond the first appeal is by permission — and permission is granted sparingly.

Talk to an Appellate Attorney Before the Deadline Runs

Whether your order can be appealed as of right or requires a motion for leave is a threshold question that affects every step that follows, and the deadline to act is short and strict. If you have received an adverse order or an Appellate Division decision and are considering further review, contact the Law Offices of Albert Goodwin, PLLC, in Midtown Manhattan, promptly. Call 212-233-1233 or email email@appealappeal.com, or reach us through our contact page, so we can confirm your deadline, determine which route applies, and prepare a leave motion that gives your case its best chance to be heard. Appellate deadlines are strict — do not wait.