November 03, 2021

Motions for Reargument in the Court of Appeals

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It is a fundamental tenet of our system of jurisprudence that there must be an end to lawsuits. The law recognizes that "it is to the interest of the State that there should be an end to litigation." Israel v. Wood Dolson Co., 1 N.Y.2d 116, 118 (1956). This principle pervades the judicial attitude toward motions for reargument, which were aptly described almost 70 years ago in Cohen & Karger, Powers of the New York Court of Appeals (rev. ed 1952), at page 694. "A motion for reargument is generally an act of desperation; it is a psychological device for raising hopes which are almost invariably doomed to defeat. The percentage of cases in which a motion for reargument has been granted in the Court of Appeals is very low—unquestionably less than one out of one hundred."

Nothing has changed. The 2019 Annual Report of the Clerk of the Court of Appeals contains a table showing that during the period 2015-2019 of 131 motions for reargument of appeals, none was granted; of 317 motions for reargument of motions, only one was granted. (2019 Report, Appendix 7).

Nevertheless, for those who feel compelled to make such a motion, the Rules of the Court of Appeals expressly provide for Motions for Reargument of Appeals, Motions and Decisions on Certified Questions (22 NYCRR §500.24). Over a century and a half ago, in Mount v. Mitchell, 32 N.Y. 702 (1865), the Court of Appeals set forth the requirements for motions for reargument, which have not changed: "Motions for re-argument should be founded on papers showing clearly that some question decisive of the case, and duly submitted by counsel, has been overlooked by the court; or that the decision is in conflict with an express statute, or with a controlling decision, to which the attention of the court was not drawn, through the neglect or inadvertence of counsel."

Rule §500.24(c) provides that the motion "shall state briefly the ground upon which reargument is sought and the points claimed to have been overlooked or misapprehended by the Court, with proper reference to the particular portions of the record and to the authorities relied upon." New matter is not permitted. The motion "shall not be based on the assertion for the first time of new arguments or points of law, except for extraordinary and compelling reasons." §500.24(d).

Procedurally, the motion must be made not later than 30 days after the appeal, certified question or motion sought to be reargued has been decided, "unless otherwise permitted by the Court." §500.24(b). It is important to note that the time to make such a motion runs from the date of the decision, and not, as in CPLR §5513(a) and (b), from the date when the judgment or order sought to be appealed was served with notice of its entry. The movant shall file an original and six copies of its papers, with proof of service of two copies on each other party. §500.24(a).

It is not enough to urge merely that the decision was wrong. In Fosdick v. Town of Hempstead, 126 N.Y. 651, 652 (1891), the court accepted that to err is human when it stated:

While it is very possible that we err in many cases, yet the rule adopted in regard to rearguments is a proper one, considering the fact that there must be at some point an end of litigation, and after counsel has had his day in this court and has been unsuccessful in his case, it is but fair to the court and to other litigants who are pressing to be heard, that a case should be made such as the court has decided to be necessary before entertaining the question of the propriety of granting a reargument.

Respondent may file an original and six copies of papers in opposition with proof of service of two copies on each other party. §500.24(f). The opposition papers should be extremely brief and should not attempt to reargue the merits of the case. They have already been decided in respondent's favor. The opposition should be directed squarely at movant's claim that the court overlooked or misapprehended some vital point. This can be done by reference to the pertinent portions of the court's opinion or by reference to the record and briefs. Essentially, it is necessary to show the court that it had before it all of the relevant evidence and applicable law. Very often a one or two page affidavit will suffice.

If the court concludes that reargument is warranted, it may make a final disposition of the case without accepting additional briefs or hearing further oral argument or it may restore the case to the calendar for a brand new argument. Of course, the granting of full reargument of the appeal is no guarantee that the movant will prevail on the merits. In Matter of Katz v. Hoberman, 28 N.Y.2d 970 (1971), where full reargument was granted, the court said it "adhere[d] to our original decision and memorandum and write further only to touch upon certain questions suggested on the reargument." The court may also find that in arriving at its decision it neglected to make certain findings of fact necessary for the validity of the result reached. Reargument will serve as the means by which the court can correct ambiguities and oversights in its main opinion.

The denial of a motion for reargument may not be the subject of a subsequent motion. "The Court will entertain only one motion for reargument of a specific appeal, motion or certified question." §500.4(e).

A few further words are necessary with respect to the basis for a motion for reargument. Every so often when the appeal has been decided by a sharply divided court (4-3) with one or more forceful dissenting opinions, the losing party will seek another chance to persuade a single judge in the majority of the righteousness of his or her cause and thereby overturn the result reached. The fact that a case was decided by a narrow margin is, however, no ground for granting reargument. Just the opposite. It usually shows that all of the arguments for both sides have been considered and thoroughly thrashed out.

Chief Judge Lehman had occasion to address this point in Semanchuck v. Fifth Ave. & Thirty-Seventh St., 290 N.Y. 412, 420 (1943):

Three judges, including the writer of this opinion, dissented from the decision in the earlier case, insofar as it held that the general contractor was not, under the contract, entitled to indemnity from the subcontractor. The controversy over the applicable rule to be followed in the construction of the indemnity agreement has been resolved by that decision. The authoritative force of a decision as a precedent in succeeding cases is not determined by the unanimity or division in the court. The controversy settled by a decision in which a majority concur should not be renewed without sound reasons, not existing here. All the judges of the court accept the decision in the Walters case and the rules which form the basis for that decision as guides in analogous cases.

Although Chief Judge Lehman's admonition was made in a different context, it is just as applicable to our discussion of motions for reargument.

Finally, there are cases in which one judge may have recused himself or herself and the court divided evenly and ordered reargument on its own motion. Schuster v. City of New York, 5 NY2d 75 (1958), is such a case. Arnold Schuster was murdered shortly after supplying information to the Police Department of the City of New York leading to the arrest of Willie Sutton, a dangerous fugitive, with a national criminal reputation. Schuster's part in Sutton's capture was widely publicized. Schuster was "a public spirited young man who had studied Sutton's picture on an FBI flyer that had been posted in his father's dry-goods store, asking for Sutton's whereabouts." (5 NY2d at 79). His estate sued the City for negligently exposing Schuster to danger by its failure to provide adequate police protection.

After first dividing 3-3, the court, exercising its power under §5 of article VI of the New York State Constitution, appointed Appellate Division Justice McNally to sit on the case and hear reargument in place of Judge Burke who was disqualified. The extraordinarily contentious case was finally decided by a vote of 4-3 to reverse and deny defendant's motion to dismiss the complaint. There were five separate opinions.

Judges Dye and Fuld concurred with Judge Van Voorhis who wrote the lead opinion for the Court holding the complaint was legally sufficient on the ground that the duty of everyone to aid in the enforcing of the law imposed upon government a reciprocal duty "reasonably to protect those who come to its assistance in this manner." (5 N.Y.2d at 81). Justice McNally concurred in a separate opinion in which Judges Dye, Fuld and Van Voorhis also concurred; Chief Judge Conway and Judges Desmond and Froessel dissented and voted to affirm, each in a separate opinion in which the others concurred. See Municipal Corporations, Tort Liability—Nonperformance of Discretionary Function, vol. 44 NYU L. Rev. 1139-1144 (Bernie R. Burrus & Thomas R. Newman).


Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

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