Matrimonial CaseLaw
CROSS APPEALS
by Charles E. Holster III, Esq.
When more than one party appeals from the same order or
judgment, the appeals are referred to as "cross-appeals". A notice
of cross-appeal must be filed within 10 days of service of the
appellant's notice of appeal, or within 30 days of service of the
order appealed from, whichever period is longer.i The court is
without jurisdiction to grant leave to file a cross-notice of appeal
beyond this time.
If a cross-appeal is taken, caution should be used in
specifying the parts of the order or judgment that are being
cross-appealed from because the notice of cross-appeal will limit
the relief that can be requested in the cross-appellant's brief.ii A
prevailing party will not want to cross-appeal "from each and
every part of said order", as would the losing party, because he
does want the court to reverse those parts of the order that are in
his favor.
It is not appropriate for an appellate court to grant relief that
exclusively benefits a non-appealing party, and this is true even
where the arguments in support of the requested relief have
merit.iii Accordingly, where no notice of cross-appeal has been
filed, the Court will generally not consider any arguments that are
advanced in support of a purported "cross-appeal" in the party's
brief.iv
This rule, however, is subject to some qualifications. For
example, it is not necessary for a prevailing party to file a notice
of cross-appeal if he only wants to argue in his brief that, in the
event that certain portions of the order are reversed, they should
only be reversed in part.v
Also, a party who has not cross-appealed may receive
affirmative relief indirectly. For instance, where the appellate
court remitted the case for further proceedings below, and set the
proper due process standard to be applied at such hearing, it
acknowledged that the application of that standard could lead to
the exoneration of the non-appealing party.vi
In addition, a party who has not taken a cross-appeal may be
granted affirmative relief where the judgment appealed from
would otherwise be inconsistent and illogical.vii Also, the
appellate court may search the record and grant summary
judgment to the non-appealing party on an appeal involving
summary judgment.viii
Even where a notice of cross-appeal has been timely filed, the
cross-appeal may be dismissed for lack of standing if the court
finds that the party was "not aggrieved" by the paper crossappealed from.ix Sometimes the court's reasoning is obvious;
sometimes, it is not.x
In order for a party to be deemed to be "aggrieved" by an
order or judgment, the order or judgment must affect him
directly.xi A party may not cross-appeal from an order denying a
co-defendants motion to dismiss the plaintiff's complaint where
it never moved to dismiss the complaint insofar as asserted
against it or joined in the motion of any other defendant to
dismiss the complaint.xii A party is "not aggrieved" from so
much of an order as failed to grant him summary judgment if he
did not request such relief in the lower court, and his crossappeal will be dismissed xiii Nevertheless, the appellate court
may still search the record and award that party summary
judgment.xiv
A party is "not aggrieved" by an order which granted the
relief he requested in all respectsxv Merely because the order
contains language or reasoning which the cross-appellants deem
adverse to their interests does not furnish them with a basis for
standing to take an appeal.xvi Nor is a party aggrieved by an
order which grants the relief he requested merely because the
relief was granted on a different ground than the party had
urged.xvii The alternate ground for affirmance can be argued on
appeal without the need of taking a cross-appeal.xviii
A party is not aggrieved by an interim order which favored
the opposing
party where the final judgment was in his own
xix
favor. Nor is he aggrieved by an order which grants relief to
which he has stipulated.xx
In the Fourth Department, where the relief requested by a
party was not addressed in the court's order, the court's silence
will be deemed to be a denial of the request and party will be
deemed to be aggrieved by the order.xxi However, in the First and
Second Departments, the court's silence will not be deemed to be
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a denial of the request and the party will not be deemed to be
aggrieved by the order.xxii
In both the First and Second Department, unless otherwise
ordered by the court, "all parties appealing from the same order
or judgment" shall consult and file a joint record or joint
appendix which shall contain the cross-notice of appeal and the
cost shall be borne equally.xxiii
In the First Department, the appellant's brief must be filed
and served at least fifty-seven days before the start of the term
xxiv and the briefs of the respondents and cross-appellants must
be served at least twenty-seven days before the start of the
term.xxv Appellant shall have nine days thereafter to file its reply
brief and thereafter, respondent-cross-appellant shall have nine
days to file its reply brief.xxvi It should be noted that in the First
Department, when service is made by mail, it must be made five
days prior to the due date for service. xxvii
The rules of the Second Department provide that the record
or appendix, plus appellant's brief, must be served and filed
within six months of the date of the notice of appeal, order
granting leave to appeal, or order of transfer.xxviii Respondent's
brief must be served and filed not more than 30 days after service
of the appellant's brief; and appellant's reply brief must be served
and filed not more than 10 days after service of the respondent's
brief.xxix. However, if there is a cross-appeal, the answering brief
shall be served and filed not more than 30 days after service of
the appellant's brief; and the appellant's reply brief may be served
and filed not more than 30 day after service of the answering
brief. The cross-appellant's reply brief may be served and filed
not more than 10 days after service of the appellant's reply
brief.xxx. In all cases, five additional days will be allowed if
service was made by regular mail.xxxi
In the First Department, the first party to file a notice of
appeal should be denominated in the brief as the "appellant",
while the all other appealing parties are denominated as
"respondent-cross-appellants".xxxii In the Second Department, the
denomination "cross-appellant" should not appear in the caption
of the case; but rather, on the cross-appeal, the cross-appellant is
denominated as the "appellant", and the other party becomes the
"respondent".xxxiii In all other respects, the party who is crossappealing should follow the rules applicable to appeals.
Where a party files a notice of cross-appeal but thereafter, in
his brief, he seeks no affirmative relief, the cross-appeal will be
dismissed as "abandoned".xxxiv In some cases, the cross-appeal
will be dismissed on the ground that the appellate court's
determination of the appeal has rendered the cross-appeal
"academic".xxxv In other cases, a cross-appeal may be dismissed
on the ground that events occurring after the notice of crossappeal was filed have rendered the cross-appeal "moot".xxxvi If a
cross-appeal has been properly taken and perfected, and it is not
dismissed for any of the foregoing reasons, it will be determined
on the merits and addressed in the court's decision, together with
the appeal.xxxvii
Although a party has "prevailed" in an action, it may still be
advisable to cross-appeal if it appears that the law entitled him to
additional or better relief than that which was granted. xxxviii
However, if trial counsel is not aware that he was entitled to
additional or better relief, he will not realize the need to crossappeal. Therefore, before the time elapses in which a crossappeal may be brought, counsel is well advised to seek a second
opinion from at least one other attorney who is knowledgeable
about what constitutes reversible error in general as well as the
substantive law involved in the case.
i
CPLR 5513(c).
ii
Brown v. U.S. Vanadium Corporation, 198 A.D.2d 863,
604 N.Y.S.2d 432, 433 (4th Dept. 1993)
iii
Stout v. Christie, Manson, & Woods International, 1998
N.Y. Slip Op. 10, 169, 681 N.Y.S.2d 19, 20 (1st Dept.
1998).
iv
Thoda v. Arcoleo, 179 A.D.2d 508, 579 N.Y.S.2d 30 (1st
Dept. 1992); O'Reilly v. Nedelka, 212 A.D.2d 714, 622
N.Y.S.2d 794, 794 (2nd Dept. 1995).
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v
vi
vii
For example, in Daley v. Related Companies, Inc., 179
A.D.2d 55, 581 N.Y.S.2d 758 (1st Dept. 1992)(citing
Parochial v. Board of Education, 60 N.Y.2d 539, 470
N.Y.S.2d 564, 458 N.E.2d 1241), the First Department
stated: "Finally, with respect to this order, defendant
seeks, as alternative relief, if we fail to uphold the
dismissal of the second and fourth causes of action, a
dismissal of plaintiff's demand for punitive damages". The
Court explained that the Defendants were not barred from
seeking such affirmative relief without a cross-appeal of
the order, "since having obtained the full relief sought at
the Supreme Court, they were not `aggrieved'". See also,
Fanelli v. Spence Chapin, 153 A.D.2d 625, 544 N.Y.S.2d
658 (2nd Dept. 1989).
Miller v. DeBuono, 90 N.Y.2d 783, 666 N.Y.S.2d 548, 553
(1997): "We recognize that our decision may grant
affirmative relief to petitioner, who has not cross-appealed
from the Appellate Division's order upholding the
Commissioner's factual determination of abuse, in that,
applying the proper standard upon remittal, the
Commissioner may ultimately exonerate her of the
charge. Here, however, a disposition of this nature is
necessary to afford respondents the full relief they seek
and, simultaneously, afford petitioner appropriate due
process protection on the remittitur".
See, Huber v. Huber, 229 A.D.2d 904, 645 N.Y.S.2d 211,
212 (4th Dept. 1996): "In these circumstances, defendant
was not entitled to deduct maintenance payments from
his CSSA income (see, Domestic Relations Law § 240[1b][5][vii][C]). "Inasmuch as plaintiff did not cross-appeal,
she is not entitled to affirmative relief on that issue.
Nevertheless, the fact that defendant should not have
been allowed a deduction for his maintenance payments
strongly suggests that such payments should not be
included in plaintiff's income. To construe the statute
otherwise would require maintenance payments to be
counted in the incomes of both the payor and the
recipient, an outcome that the Legislature could not have
intended".
viii
Spencer, White & Prentis, Inc. v. Southwest Sewer Dist.,
103 A.D.2d 802, 803, 477 N.Y.S.2d 681 (2nd Dept. 1984).
ix
CPLR 5511
x
One case in which the court's reasoning is not clear to
this author is Miles v. Italiano, 1997 N.Y. Slip Op. 11,356,
666 N.Y.S.2d 506 (2nd Dept. 1997). In that case, the
court granted defendant's motion for judgment as a
matter of law and dismissed the complaint. The
defendant cross-appealed from so much of the judgment
as dismissed their affirmative defenses. The Second
Department dismissed the cross-appeal because the
defendants are "not aggrieved" by the judgment. It is
unclear, however, what would occur if the Appellate
Division disagreed with the trial court's reasoning for
dismissing the complaint and reinstated it. It would not
necessarily follow that the Appellate Division would
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reinstate the affirmative defenses which the defendants
pleaded. Yet, if those defenses have merit and are not
reinstated, there would appear to be an unjust result from
disallowing the cross-appeal.
xi
For example, it certainly adversely affects the interests of
a plaintiff in a personal injury action if the defendant's
insurer is not obligated to defend or indemnify the
defendant since, if there is no insurance coverage, it may
be difficult, if not impossible, for plaintiff to recover.
However, since the defendant's lack of insurance
coverage does not directly affect the plaintiff, the plaintiff
in Jasper Corporation/Celotex Corporation v. Dunikowski,
229 A.D.2d 424, 645 N.Y.S.2d 88 (2nd Dept. 1996) was
not be deemed to be aggrieved by the judgment, in a
separate declaratory action, that the insurance company
is not obligated to defend the defendants in the personal
injury action.
xii
Papa v. Regan, 682 N.Y.S.2d 94 (2nd Dept. 1998), the
Second Department, citing CPLR 5511, held that the
defendant was "not aggrieved" by the order crossappealed from.
xiii
In QDR Consultants & Development Corp., v. Colonia
Insurance Company, 675 N.Y.S.2d 117, 118 (2nd Dept.
1998)
xiv
id. "Although Colonia never cross-moved for summary
judgment dismissing QDR's claim for lost profits, it may
raise on appeal the Supreme Court's failure to grant that
relief because both the Supreme Court and this Court
have authority pursuant to CPLR 3212(b) to search the
record and award summary judgment to the non-moving
party. (citations). Moreover, the issue raised by Colonia
was the subject of the motions before the court
(citations)".
xv
Brown v. U.S. Vanadium Corporation, 198 A.D.2d 863,
604 N.Y.S.2d 432 (4th Dept. 1993), the Fourth Department held that the third-party plaintiff, which was granted
summary judgment on its claim for contractual indemnification, was not an aggrieved party which could crossappeal from the grant of summary judgment because the
third-party's motion was "in all respects granted"
(including its request for litigation costs). The Supreme
Court's failure to rule on plaintiff's common-law
indemnification claim was deemed a denial of that part of
plaintiff' cross-motion for summary judgment.
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But note that, in other Departments, silence is not always
deemed to be a denial of the relief requested. See, e.g.,
Daley v. Related Companies, 179 A.D.2d 55, 581
N.Y.S.2d 758, 761 (1st Dept. 1992); DePinto v. Rosenthal
& Curry, 237 A.D.2d 482, 655 N.Y.S.2d 102 (2nd Dept.
1997).
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xvi
ABC Mechanical Systems Corp. v. New York State Office
of General Services, 238 A.D.2d 532, 657 N.Y.S.2d 939
(2nd Dept. 1997).(citing M.J. & K. Co., Inc., v. Matthew
Bender and Company, 220 A.D.2d 488, 631 N.Y.S.2d 938
[2nd Dept. 1995]).
xvii
For instance, in Frager v. Transworld Airlines, Inc., 228
A.D.2d 502, 644 N.Y.S.2d 299, 299-300 (2nd Dept.
1999), the defendant moved to dismiss on the basis of
the Statute of Limitations defense; but, the order of the
Supreme Court granted the defendant's motion to dismiss
the proceeding for lack of subject jurisdiction. The
defendant cross-appealed from so much of that order as
rejected its Statute of Limitations defense but the crossappeal was dismissed by the Second Department on the
ground that the defendant was not aggrieved by the
order.
xviii
In Frager, supra, after the Second Department dismissed
the cross-appeal, it stated that that "the argument by [the
defendant] that the proceeding should be dismissed upon
the alternate ground that it was time barred can be
reviewed on appeal". 644 N.Y.S.2d at 300 (citing)
Parochial Bus Systems v. Board of Educ. of City of N.Y.,
60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241.
Thus, although the Appellate Division in Frager was
persuaded by the appellant that it was error for the
Supreme Court to have dismissed the proceeding for lack
of jurisdiction, it affirmed the Supreme Court's dismissal
on the alternate ground, urged by the cross-appellant,
that the proceeding was time barred when commenced.
To the same effect, and also following the Court of
Appeals holding in the Parochial Bus Systems case, see,
Heizman v. Long Island Lighting Company, 1998 N.Y. Slip
Op. 5242, 674 N.Y.S.2d 59, 61 (2nd Dept. 1998); Fifth
Avenue of Long Island Realty Assoc. v. Board of Trustees
of the Incorporated Village of Munsey, 1999 A.D.2d 392,
608 N.Y.S.2d 90 (2nd Dept. 1993); Bachman v.
DeFronzo, 164 A.D. 926, 599 N.Y.S.2d 586, 587;
Anonymous v. Anonymous, 233 A.D.2d 350, 650
N.Y.S.2d 589 (2nd Dept. 1996); YTSB Management v.
Westport Insurance Corp., 1998 N.Y..Slip Op., 673
N.Y.S.2d 616 (2nd Dept. 1998).
xix
In Royal Insurance Company of America, 204 A.D.2d
219, 612 N.Y.S.2d 137 (1st Dept. 1994), the defendants
had appealed from three intermediate orders but in view
of the fact that in the final judgment the plaintiff's
complaint was dismissed, it was held that the defendants
were not aggrieved by the 3 prior intermediate orders.
xx
In M. Raji v. Sepah-Iran, 74 N.Y.2d 916, 549 N.Y.S.2d ,
549 N.E.2d 146 (1989). The plaintiffs were not aggrieved
by the modification of the judgment so that it provided for
a new trial on the issue of damages unless plaintiffs
stipulated to reduce the verdict in their favor because the
plaintiffs had stipulated to reduce the amount of damages
to which they were entitled.
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xxi
Brown v. U.S. Vanadium Corporation, supra, 198 A.D.2d
863, 604 N.Y.S.2d 432 (4th Dept. 1993)
xxii
See, e.g., Daley v. Related Companies, 179 A.D.2d 55,
581 N.Y.S.2d 758, 761 (1st Dept. 1992): "However, in
view of the fact that the IAS court did not address this
issue, we remand to that Court for further proceedings
with respect to this requested relief". In DePinto v.
Rosenthal & Curry, 237 A.D.2d 482, 655 N.Y.S.2d 102
(2nd Dept. 1997), the defendants cross-appealed from so
much of the Supreme Court's order as purportedly denied
that branch of their motion which was to set aside the
verdict on the issue of liability. However, the the Second
Department held that the order cross-appealed from did
not address that branch of the defendant's motion, and
therefore the defendants were not aggrieved by the order
in that respect. The cross-appeal was dismissed and the
arguments advanced on the cross-appeal were not
addressed. The lesson to be learned is that the
practitioner should not assume that a court's silence with
respect to a branch of a motion implies that it was denied.
Instead, counsel should make a motion to have the court
issue an amended order in which it addresses the relief
that was not previously addressed. Otherwise, there can
be no appellate review of the court's failure to grant the
requested relief.
xxiii
22 NYCRR 600.11[d], and 670.8[c][1], respectively.
xxiv
22 NYCRR §§600.11[b][1][i] and 600.11[b][2].
xxv
22 NYCRR §§600.11[c)] and 600.11[d].
xxvi
22 NYCRR §600.11[d].
xxvii
22 NYCRR §600.11[e].
xxviii
22 NYCRR §670.8[e].
xxix
22 NYCRR §670.8[b]
xxx
22 NYCRR §670.8 [c][3]
xxxi
CPLR 2214(b).
xxxii
This is not entirely clear from the First Department's
Rules. See, 22 NYCRR 600.10[a][5] and 600.11[d].
However, this is what was explained to the author by the
clerks at the First Department. Thus, for instance, in the
First Department,
the caption should read "Plaintiff/Appellant/Respondent
-against
Defendant/Respondent/Cross-Appellant".
xxxiii
This is not entirely clear from the Second Department's
Rules. See, 22 NYCRR 670.10[a][3]. However, this is
what was explained to this author by one of the clerks
at the Second Department. Thus, in the Second
Department, the caption should read "Plaintiff/Appellant/Respondent, - against - Defendant/Respondent/Appellant". While this may seem to be
a trivial matter, it is better to get it right in your office on
your computer rather than to have to fix all nine copies
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of your record and brief by hand at the Appellate
Division after the Clerk points out your mistake.
xxxiv
Harrison v. Harrison, 1998 N.Y.Slip Op. 680 N.Y.S.2d 624,
625 (2nd Dept. 1998); Principals Capital Resources
Corporation v. Splish Splash Adventureland, Inc., 1998
N.Y. Slip Op. 6665, 676 N.Y.S.2d 477 (2nd Dept. 1998);
xxxv
For instance, in Raimone v. Sanchez, 1998 N.Y. Slip Op.
7507, 677 N.Y.S.2d 150, 150-151 (2nd Dept. 1998), the
respondent in the Supreme Court had moved to dismiss
the petition on two grounds: that the petitioner lacked
standing and that the petition was not timely. The
Supreme Court dismissed the petition on only the first
ground. The petitioner appealed from so much of the
order as had dismissed the petition and the respondent
cross-appealed from so much of the same order as had
denied respondent's motion to dismiss on the alternate
ground that the proceeding was not timely commenced.
The Appellate Division affirmed so much of the order
appealed from as dismissed the petition on the ground
that the petitioner lacked standing and dismissed the
cross-appeal as academic: "In light of our determination
that the proceeding was properly dismissed, we do not
reach the contention of Ricardo "Ricky" Sanchez that the
proceeding was not timely commenced". A mirror image
of the Raimone case, supra, is Ensley v. New York City
Department of Personnel, 1999 WL 47768 (N.Y.A.D. 1
Dept. 1999). In 1999 WL 39535, Snyder v. Sony Music
Entertainment, Inc., (N.Y.A.D. 1999), the IAS court
denied defendant's motion for summary judgment and
defendant appealed. Plaintiff did not move for summary
judgment before the IAS court; but, he cross appealed on
the ground that the IAS court should have searched the
record and awarded plaintiff summary judgment on his
third and fourth causes of action. In determining the
defendant's appeal, the the Appellate Division held that
the plaintiff's complaint should be dismissed in its entirety.
"In light of our determination, held that the complaint
should be dismissed, the cross-appeal is academic" (p.
5). See also, 1999 WL 20217, MacKay v. Ransome, (N.Y.
A.D. 2 Dept. 1999).
xxxvi
For example, in Morrison v. New York State Division of
Housing and Community Renewal, 241 A.D.2d 34, 672
N.Y.S.2d 2, 7 (1st Dept. 1998), the conduct which the
cross-appealing party sought to enjoin had ceased. The
Court explained that "[A]n appeal will be considered moot
unless the rights of the parties will be directly affected by
the determination of the appeal and the interest of the
parties is an immediate consequence of the judgment"
(citing Hearst v. Clyne, 50 N.Y.2d 707, 714, 331 N.Y.S.2d
400, 409 N.E.2d 876).
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xxxviiiIn
a case in which the author was consulted, after the
time in which a cross-appeal could have been brought, the
wife had "prevailed" in her equitable distribution trial; but
the award that she received was about half as much as
she should have received because the trial court had
proceeded on the erroneous assumption that the wife was
only entitled to a share of the appreciation in the value of
the marital residence, which was marital property, rather
than a share in the entire value. The husband appealed
but the wife had not cross-appealed, and it was too late to
do so.
xxxviiSee,
e.g., DiMarco v. New York City Health and Hospitals
Corporation, 247 A.D.2d 574, 669 N.Y.S.2d 51 (2nd Dept.
1998); Lipsius v. Lipsius, 1998 N.Y. Slip Op., 673
N.Y.S.2d 458 (2nd Dept. 1998); Tannenbaum v. Republic
Insurance Company, 1998 N.Y.Slip Op. 3594, 671
N.Y.S.2d 520 (2nd Dept. 1998).
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