Rosenstiel v. Rosenstiel

• Citation: 15 A.D.2d 904,225 N.Y.S.2d 915
• Parties: Susan L. ROSENSTIEL v. Lewis S. ROSENSTIEL.
• Decision Date: 20 March 1962
• Court: New York Supreme Court Appellate Division

Page 915

225 N.Y.S.2d 915

15 A.D.2d 904

Susan L. ROSENSTIEL v. Lewis S. ROSENSTIEL.

Supreme Court, Appellate Division, First Department.

March 20, 1962.

Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for plaintiff.

Javits & Javits, New York City, for defendant.

Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and EAGER, JJ.

PER CURIAM.

Motion for leave to appeal to the Court of Appeals from an intermediate order on a proposed certified question and for certain alternative relief denied, with $10 costs. In seeking leave to appeal plaintiff-appellant largely reargues questions of law previously addressed to the Court and also argues with the conclusion of Special Term and this Court on the basic questions of fact involved. Nowhere does she isolate the pure question of law which she contends would be determinative of the result reached in Special Term or in this Court, and without which the motion for leave to appeal cannot properly be granted (Civil Practice Act § 589, subd. 3[b]; Cohen and Karger, Powers of the New York Court of Appeals [rev. ed.] § 85). Nor does she argue that there was an abuse of discretion. But even if she did, that would not be of avail. In the first place it is only in the extreme case in which the denial, as distinguished from the granting, of a discretionary remedy, such as a temporary injunction, can involve an abuse of discretion. Thus, Cohen and Karger say 'Only rarely is a denial of a discretionary remedy such an abuse of discretion as to present an issue of law; in most cases review in the Court of Appeals on any such basis would at best be an idle ceremony. The Court would almost invariably find no such abuse of discretion, and would be compelled to affirm. The practice of the Court is, accordingly, to dismiss the appeal in such cases.' (Cohen and Karger, id. pp. 376-7)

Since plaintiff-appellant would appeal from an intermediate order, this Court, in certifying a reviewable question to the Court of Appeals, would have to state expressly that its affirmance did not involve the exercise of discretion (Cohen and Karger id. pp. 377, 382-3). This, of course, would be contrary to the language of the majority opinion in this case and contrary to the fact. In Cohen and Karger it is said:

'An appeal from a non-final order of the Appellate Division denying a remedy in any case involving discretion, must be dismissed if the Appellate Division fails to make a recital, in the manner provided by section 603, the effect of which is to show that the denial was based on questions of law alone--at least where no actual issue is raised as to whether the Appellate Division abused its discretion as matter of law. In such circumstances, the Court of Appeals has held, 'lack of specification by the ...