In Hecht v. City of New York, 60 N.Y.2d 57 (1983), the Court of Appeals limited an appellate court’s scope of review of a final judgment or order rendered against multiple parties but appealed by only one.

Co., 251 A.D.2d 283 (2d Dept., 1998), for example, the defendant insurer’s answer asserted various affirmative defenses. January 2, 2018 The Appellate Division modified this order to the extent of directing a “full unified retrial,” noting that “[t]o prevail under the [second collision] doctrine, plaintiffs must show by independent proof that the absence of seatbelts was a defect that ‘caused enhanced injuries,’” and holding that “[a] limited scope retrial would cause untold confusion in any attempt by the trial court to apply the second collision doctrine.” See 126 A.D.3d 629, 630 (citations omitted) (material in brackets added).

The court noted that “[g]enerally, an appellate court cannot grant affirmative relief to a nonappealing party unless it is necessary to do so in order to accord full relief to a party who has appealed,” and that “neither CPLR 5522 [‘Disposition of appeal’] nor any other statutory or constitutional authority permits an appellate court to exercise any general discretionary power to grant relief to a nonappealing party.” Id. Under this section, an appellate court, not satisfied with the evidence lead in the lower court, is to dispense complete justice. Concluding that “it is inconceivable that the availability of passenger seat belts would have resulted in the complete absence of injury,” the Appellate Division ordered a new trial “to obtain a proper allocation of fault for the injuries sustained as a consequence of the lack of seat belts (as opposed to the negligent operation of the bus) and apportionment of liability under CPLR article 16.” See 92 A.D.3d at 491.

The basic law which deals with the concept of Remand of Civil Cases is Section-107 and Order-XLI of the Civil Procedure Code. Id. See, e.g., Cover v. Cohen, 61 N.Y.2d 261, 277 (1984). “The parties are left in the same position as though there had been no trial.” ATIFA v. Shairzad, 56 A.D.3d 703, 704 (2d Dept., 2008). Co. of New York, 698 F.2d 154, 155 (2d Cir.

“Any other view, for which there is, concededly, no precedent, would entail recurrent uncertainty in procedure and require the litigants and the trial courts to engage in collateral interpretation or construction of an appellate court’s intention.” Sipal, 15 A.D.2d at 457. For example, a remand is necessary if the court believes the defendant may be a flight risk, or likely to leave the state while awaiting his trial. Another limitation on the scope of a new trial on remand arises from the rule that a reversal does not inure to the benefit of a nonappealing party. After the jury returned a verdict in favor of the defendant on the retrial, the plaintiffs appealed from the resultant judgment, arguing that the trial court erred in retrying all issues, including the defendant’s affirmative defenses. “Unless the appellate court in its decision and order directs that the new trial be limited in scope it ‘should be construed to require a new trial generally.’” Ceravole, 186 A.D.2d at 170-71, quoting Application of Sipal Realty, 15 A.D.2d 456, 456-57 (1st Dept., 1961). When an appellate court reverses a judgment and remands the matter for a new trial, it is not unusual for the losing party to want to salvage something from the original trial, such as a favorable (and unexpected) jury determination on a difficult issue that is not likely to be repeated by a second jury. In Maracina v. Schirrmeister, 152 A.D.2d 502 (1st Dept., 1989), for example, the Appellate Division granted the plaintiff partial summary judgment on the issue of liability and remanded the matter for an assessment of damages. In ATIFA, for example, the Appellate Division reversed the judgments in two related actions, reinstated the original pleadings and granted a new trial. On appeal from the order of dismissal, the Appellate Division reversed, reinstated the complaint and the prior order granting partial summary judgment, and remanded the matter “again” for an assessment of damages before a different justice. By Thomas R. Newman and Steven J. Ahmuty Jr. A necessary corollary to the rule that the grant of a new trial generally sends the parties back to square one is the rule that courts of original jurisdiction lack the power to vary or limit the terms of an appellate court’s new trial order. The party opposing an appeal should therefore give careful consideration to whether the appellant’s points of error, if accepted by the appellate court, would require a retrial on all issues or only on some of the issues. Reprinted with permission from New York Law Journal, © ALM Media Properties LLC.

The scope of a new trial on remand is not wholly without limits, however. Likewise, an appeals court may remand a case to a trial court. A remand may be a full remand, essentially ordering an entirely new trial; when an appellate court grants a full remand, the lower court's decision is "reversed and remanded." Remand can also mean to return a court case to a lower court from a higher court so the lower court can reconsider the case. Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender).


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