Why Appellate Counsel Matters: Turning Legal Splits Into Strategic Leverage

New York’s appellate court system is divided into four departments, each with the authority to interpret laws independently. That means the same legal issue can have different outcomes depending on where your case is heard. These so-called “departmental splits” can create uncertainty — but they also create opportunities.

For trial attorneys and clients alike, understanding these splits can be the difference between a weak appeal and a strong one. This is where appellate counsel comes in. With the right appellate guidance early on, a split in authority can become a powerful tool in shaping case strategy, preserving key issues, and even prompting changes in the law.

Departmental Splits: More Than Just Legal Trivia

Departmental splits mean a legal rule may apply differently depending on where in New York your case is heard. This isn’t just procedural nuance — it can have a direct impact on outcomes, settlement leverage, and appellate strategy.

Here are three key examples where departmental splits continue to affect civil litigation — and where early appellate involvement can make all the difference:

1. When Does Pre-Judgment Interest Begin in Auto Cases?

This is a crucial issue in motor vehicle cases — and one where the departments don’t agree.

• Second Department: Interest starts once the plaintiff wins summary judgment on liability (Van Nostrand v Froehlich, 44 AD3d 54).
• Third Department: Follows the same rule (Kelley v Balasco, 226 AD2d 880).
• Fourth Department: Delays interest until liability and a “serious injury” under Insurance Law § 5102(d) are both proven (Ruzycki v Baker, 301 AD2d 48).

The New York Court of Appeals recently had a chance to resolve this issue but declined because the plaintiff failed to preserve the argument (Sabine v State, 2024 NY Slip Op 06288 [2024]).

Takeaway: With appellate counsel involved early, this issue could have been preserved — possibly securing statewide clarification and a better damages award.

2. Labor Law § 200: The Role of Supervision and Control

Labor Law § 200, which codifies an owner or contractor’s duty to maintain a safe workplace, is another source of interdepartmental disagreement.

• First, Third, and Fourth Departments: Require actual supervision and control (see, Jesmain v Time Cap Dev. Corp., 225 AD3d 1189 [4th Dept 2024]).
• Second Department: Only requires the authority to supervise and control (Ortega v Puccia, 57 AD3d 54 [2d Dept 2008]).

Takeaway: This distinction affects discovery, trial prep, and summary judgment motions. Early recognition can guide case development and open doors for legal challenges.

3. Punitive Damages: Conflicting Standards of Proof

The burden of proof for punitive damages isn’t uniform:

• First and Second Departments: Require clear and convincing evidence (see, Randi A.J. v Long Island Surgi-Center, 46 AD3d 74 [2d Dept 2007]).
• Fourth Department: Uses the lower preponderance of the evidence standard (Matter of Seventh Judicial Dist. Asbestos Litig., 190 AD2d 1068 [4th Dept 1993).

Takeaway: Knowing the applicable standard can impact settlement discussions and trial strategy, especially in high-damages cases.

Where Appellate Counsel Adds Value

Preserving the Record

Appellate issues must be preserved at the trial level. Without timely objections or motions, valuable appellate rights can be lost. Sabine is a textbook example of how a missed opportunity can shut the door on appeal.

Framing the Legal Issue

Appellate attorneys understand how to shape an issue for review — especially when seeking leave to appeal to the New York Court of Appeals. Highlighting a departmental split can make your case stand out as worthy of higher review.

Leveraging Splits for Settlement

A known split in the law can increase pressure on opposing parties to settle. If a rule is unsettled or unfavorable in one department, appellate counsel can use that uncertainty as strategic leverage.

Conclusion

Departmental splits in New York’s appellate system aren’t just quirks of geography — they’re key factors that shape litigation strategy. With skilled appellate counsel, what might look like a legal gray area can become a strategic advantage.

Early appellate involvement isn’t just about preparing for appeal — it’s about building a smarter, stronger case from day one.

Contact our firm today to learn how our appellate experience can help you navigate splits in the law and position your case for success.