63 N.Y.2d 221 | NY | 1984
OPINION OF THE COURT
The issue presented concerns the appealability to this court of an Appellate Division order modifying an exercise of discretion by a lower court Judge.
In selecting a committee for an incompetent, the primary concern is for the best interests of the incompetent (see, e.g., Matter of Kalthoff, 298 NY 458). This determination necessarily involves a judgment upon the facts and lies in the court’s discretion (see Matter of Rothman, 263 NY 31; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], ch 16). On appeal, the Appellate Division may review the determination for an abuse of discretion but may also substitute its own discretion even in the absence of an abuse by Special Term (Barry v Good Samaritan Hosp., 56 NY2d 921). The lower courts have considerable latitude in exercising their discretion, which may be upset by us only for abuse as a matter of law.
Though the Appellate Division stated that Special Term had abused its discretion in appointing a third cocommittee, an examination of its memorandum decision reveals that the court went considerably beyond. Finding no deficiency in the qualifications or fitness to serve of the third cocommittee appointed by Special Term, the Appellate Division nonetheless concluded that the interests of the incompetent were best served by the appointment of respondents alone. The court felt the appointment of a
Where, as here, an appeal is taken as of right on the basis of a modification at the Appellate Division, that modification must be in a substantial respect “which is within the power of the court of appeals to review on such appeal” (CPLR 5601, subd [a], par [iii]).
Appeal dismissed, without costs, in a Per Curiam opinion.
This statutory restriction on our jurisdiction gives particular importance to how the order and decision of the Appellate Division are formulated. When the Appellate Division decision rests on abuse of discretion by the lower court as a matter of law, and the order so recites, a question of law may be presented for our review. When, however, the Appellate Division concludes that there was an improvident exercise of discretion below and substitutes its own discretion, and the order recites that the modification is made as a matter of discretion, then the issues will be appealable only where this court determines that a substantial question of abuse has been presented or the result reached is so outrageous as to shock the conscience. Recitals in the orders of the Appellate Divisions and articulations in their opinions which fail to recognize and implement this distinction may lead to confusion as to appealability or scope of review in our court.