Commercial Division Blog

Posted: November 19, 2021 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Category Appeals

Unchallenged, Independent Alternative Ground for Affirmance Moots Appeal

On September 29, 2021, the Second Department issued a decision in Dorce v. Family Dollar Stores of N.Y., Inc., 197 A.D.3d 1289, dismissing an appeal as academic when an unchallenged, independent alternative ground for affirmance existed, explaining:

On appeal, the plaintiff argues only that the Supreme Court improperly determined that the cause of action alleging adverse possession is barred by the doctrines of res judicata and collateral estoppel. The plaintiff does not challenge the court's determination that, on the merits, the defendants established, prima facie, the absence of certain required elements of the cause of action alleging adverse possession, and that the plaintiff failed to raise a triable issue of fact in opposition. Thus, as the defendants correctly contend, even if we were to find the plaintiff's appellate arguments persuasive, an independent alternative ground exists for awarding summary judgment dismissing the cause of action which the plaintiff has not challenged, and thus would remain unaffected by any determination on this appeal. Accordingly, we dismiss the appeal as academic (see Armatas v Kestenbaum, 189 AD3d 1319, 1321 [2020]; Katz v Hampton Hills Assoc. Gen. Partnership, 186 AD3d 688, 690[2020]; Klam v Klam, 239 AD2d 390, 391 [1997]).

Appellate courts often look for the narrowest way to resolve an appeal, which is what happened in this case. The attorneys at Schlam Stone & Dolan LLP regularly handle appeals in federal and state court, and are also well versed in appellate motion practice. Contact the Commercial Division Blog Committee at if you or a client have questions concerning an appeal.