## Facts

- A pro se plaintiff commenced an action in the City Court of Rochester.
- The City Court issued an order (not a judgment).
- An appeal from that City Court order was taken to Monroe County Court, which affirmed.
- The plaintiff moved in the Appellate Division, Fourth Department, for leave to appeal from the County Court’s order.
- The Appellate Division addressed only its appellate jurisdiction and did not reach the merits.

## Issues

1. Whether an appeal as of right lies to the Appellate Division from a County Court order determining an appeal from a lower court order, rather than from a lower court judgment.
2. Whether the Appellate Division has statutory authority to grant leave to appeal from such a County Court order when the action originated in City Court.

## Decision

- The Appellate Division denied the motion for leave to appeal.
- No appeal as of right was available because CPLR 5703(b) authorizes as-of-right appeals only when the County Court order determines an appeal from a lower court judgment, not a lower court order.
- The court lacked statutory authority to permit an appeal in this procedural posture because none of the CPLR provisions authorizing leave to appeal applied.

## Legal Principles

- There is no inherent right to appeal; appellate review exists only by express constitutional or statutory authorization and cannot be created by implication.
- Under CPLR 5703(b), the Appellate Division has as-of-right jurisdiction over a County Court order only when it determines an appeal from a lower court judgment.
- The Appellate Division’s authority to grant leave to appeal is limited to circumstances expressly authorized by statute (including CPLR 5701(c), 5702, and 5703(a), or a specific enabling statute governing the court of original instance).
- When an action originates in a court whose governing statute does not provide for Appellate Division review, the Appellate Division cannot create jurisdiction by granting leave.

## Conclusion

Because the County Court order affirmed a City Court order rather than a judgment, and no statute authorized either an appeal as of right or an appeal by permission from that County Court order, the Appellate Division denied leave to appeal for lack of jurisdiction.


Gastel v. Bridges, 110 A.D.2d 146, 493 N.Y.S.2d 674 (N.Y. App. Div. 4th Dep’t 1985)