A client recently came to me regarding a decision from the trial court remanding an Article 78 Proceeding to a government agency, which was not appealable as of right; however, the judgment-form decision that came down was. He wondered if he should make a motion for leave to appeal to the Appellate Division or file a notice of appeal. The judgment had been served with notice of entry so his thirty days were running out on both of his options.
The Appellate Division routinely denies requests for relief where there is a right to do so in the first place. If my client were to make a motion for permission to appeal, but he already had a right to appeal, the court could deny the request outright and he would be beyond the thirty day time limit. If he filed only a notice of appeal and it turned out he had no right to appeal, then he would also be out of time to make a motion if they dismissed the appeal for failure to get the court’s permission.
After consulting the clerks of both the First and Second Departments, I found the answer: file both the motion and the notice of appeal, but make clear in your motion papers that you have done so and explain the reasons why.