“Where’s ‘Dondi’?”

“Where’s ‘Dondi‘?”

By: Katryna L. Kristoferson and David Paul Horowitz | August 20, 2024

Introduction

Collectively Katryna and David have over 40 years combined practice experience. Yet, until about two months ago, neither of us had ever been asked the question: “Where’s Dondi?”

No, this is not yet another picture book designed to pass the time and challenge your attention to detail, along the lines of “Where’s Waldo?”[1] It is a quirk of appellate practice, limited so far as we know, to the Appellate Term, Second Department, and is patois in that Court for compliance with CPLR 2219(a).

CPLR 2219(a)

CPLR 2219(a), titled “Time and form of order” provides:

(a) Time and form of order determining motion, generally. An order determining a motion relating to a provisional remedy shall be made within twenty days, and an order determining any other motion shall be made within sixty days, after the motion is submitted for decision. The order shall be in writing and shall be the same in form whether made by a court or a judge out of court. An order determining a motion made upon supporting papers shall be signed with the judge’s signature or initials by the judge who made it, state the court of which he or she is a judge and the place and date of the signature, recite the papers used on the motion, and give the determination or direction in such detail as the judge deems proper. Except in a town or village court or where otherwise provided by law, upon the request of any party, an order or ruling made by a judge, whether upon written or oral application or sua sponte, shall be reduced to writing or otherwise recorded.

Emphasis added.

The question “where’s Dondi” arises from the portion of the Rule requiring that an order “recite the papers used on the motion.” This, of course, is necessary so that in the event of an appeal, the appellate record can include all of the papers reviewed by the original court in reaching its determination. A simple and straightforward enough requirement. Except when it is not.

‘Matter of Dondi‘

So who is “Dondi,” and how did the name enter the legal lexicon? The name originates from the decision of the Court of Appeals in Matter of Dondi, 63 N.Y.2d 331 (1984). Dondi, an appeal from a disciplinary proceeding in the Grievance Committee for the Second an Eleventh Judicial Districts involved the propriety of unsealing certain criminal records, which included a surreptitiously obtained tape recording, in connection with the Grievance Committee’s investigation. It is interesting to note that the “paper” which was central to the appeal was not an order, but a letter sent by the Grievance Committee to the clerk of the court where the sealed records resided.

The letter was sent by counsel for the Grievance Committee after “counsel for the Grievance Committee made an ex parte application to Supreme Court, Queens County, for an order permitting the unsealing of both the court’s and District Attorney’s files.” Id. The assigned judge issued an order unsealing the records, but immediately recalled the order. Hence the follow-up letter request. The Court of Appeals wrote:

Failing at gaining the records in this manner, counsel made a new ex parte application, to the Appellate Division, Second Department, in August 1977. This was done informally through a letter addressed to the court clerk. The clerk responded the same week with a letter stating simply: ‘Please be advised that your request to have the entire file of the Court and the Queens County District Attorney, in the above matter, be unsealed and turned over to your Committee, has been approved by the Court.’

After the Grievance Committee’s conducted a hearing:

A special referee was appointed to hear the matter. It was stipulated that in lieu of a full hearing the referee would review the transcripts of the hearing before the Grievance Committee Panel, but would not consider any material contained in the sealed records or the tape recording. The referee filed a report finding that the charge of professional misconduct had been established. The Appellate Division confirmed this report and suspended appellant from the practice of law for a period of one year and until the further order of the court. This court granted appellant’s motion for leave to appeal.

Appellant argues that the Grievance Committee wrongly acquired the sealed records and their use in the investigation, preparation, and prosecution of the disciplinary charges irreparably tainted the entire proceeding, requiring that the complaint be dismissed. In essence, appellant contends that it was improper for the Grievance Committee to have applied ex parte to the Appellate Division for an order unsealing the records and that, in any event, the Appellate Division was without authority to grant such an application.

If the referee did not consider the sealed records, how did the sealed records taint the entire proceedings?

The Grievance Committee’s contention that appellant could have suffered no prejudice because the relevant information was available to the Committee in any event is belied by its original application to Supreme Court, in which counsel for the Grievance Committee stated in a sworn affidavit that receipt of the records was “essential” to the Committee’s investigation. In light of that sworn statement, the current assertion that the records were not really necessary is troublesome. Having elected to proceed on the basis that the files were essential, the Committee should be held to that characterization. And because it is presumed that the files were “essential” for the investigation that led to the formal charge, it is irrelevant that they were not received by the referee at the Appellate Division as the prejudice to appellant would already have occurred.

The Court also held that the tape was subject to the sealing order and discussed the Appellate Divisions discretionary authority to order records be unsealed. “This court has previously suggested that in “extraordinary circumstances” the Appellate Division may exercise its discretion, pursuant to inherent authority over records and its oversight and disciplinary power over attorneys and counselors at law, to permit the unsealing of criminal records.”

Concluding that “extraordinary circumstances” were not present, the Court concluded:

Convenience alone will not justify an unsealing. Moreover, there was no indication of the gravity or circumstances of the underlying investigation. Finally, the letter by the clerk of the court contained no recital of the papers on which the request was decided (see CPLR 2219). This requirement provides the means by which this court may meaningfully review the basis of the Appellate Division’s exercise of discretion. Given the nature of both the request to the Appellate Division, and the letter of the clerk of that court, it cannot be said that a lawful order issued permitting the unsealing of the record (citations omitted).

Finally, something about Dondi and CPLR 2219! Although likely dicta (inasmuch as extraordinary circumstances were not present), it is the Court of Appeals.

And this is not a new concept. Aside from the current statute (and its predecessors), at least as far back as 1897 the Fourth Department in Niles v. New York C. & H. R. R. Co., 13 AD 549 (4^th Dep’t 1897) in an appeal revolving around whether an objection was properly lodged during counsel’s opening (citing N.Y. Code Civ. Proc. § 1353), the court affirmed the trial court’s order striking the objectionable matter from the record and dismissed the appeal, in part, because “[t]he order from which the appeal is taken does not recite the papers that were used upon the application for it.” Id.

So Where’s ‘Dondi’ In The Appellate Term, Second Department?

Our research reveals Dondi has been cited one hundred times (we love round numbers) and we turned up five cases in the Appellate Term, Second Department citing Dondi.[i]

Most recently, in Lenex Servs., Inc. v. American Tr. Ins. Co., 2020 NY Slip Op 51330(U) (App. Term 2d Dep’t. 2020):

Plaintiff did not submit any papers in opposition to defendant’s motion giving rise to the August 7, 2018 order (citations omitted), and the order does not recite the substance of plaintiff’s arguments, if any, made at oral argument. In these circumstances, the order, insofar as appealed from, cannot be reviewed on direct appeal (citations omitted). Plaintiff’s remedy, if it be so advised, is to move in the Civil Court to vacate the order.

In 2015 in Renelique v. American Tr. Ins. Co., 47 Misc. 3d 134(A) (App. Term 2d Dep’t. 2015) the court explained “[a]lthough plaintiff’s appellate brief indicates that plaintiff may have served papers in opposition to defendant’s cross motion for summary judgment, the order appealed from recites that the court did not consider any papers opposing defendant’s cross motion.” See, also, A.B. Med. Servs. PLLC v. N.Y. Cent. Mut. Fire Ins., 6 Misc. 3d 133(A) (App. Term 2d Dep’t. 2005) (“Although the parties’ appellate briefs indicate that defendant may have served papers in opposition to the moving plaintiffs’ motion for summary judgment, the order appealed from recites that the sole papers considered by the court were the moving papers”); Gazdo Properties Corp. v. Lava,150 Misc. 2d 1019 (App. Term 2d Dep’t. 1991) (“It is clear that petitioner is appealing from a “decision” since the paper appealed from does not recite the papers on which the court below determined the motion.”); and Charles Altenkirch & Son Inc. v. CDK Restaurant Inc., 1986 N.Y. Misc. LEXIS 3172 (App. Term 2d Dep’t. 1986) (“The order of June 25, 1985 is also not appealable since it does not recite the papers on which it was based.”).

The rules for the Appellate Term, Second Department, do not contain a reference to Dondi, but the term is common parlance in that court. Nor are we aware of the term being used in other courts (we await an onslaught of emails gently advising us we are wrong).

So What Is A Dondied Order?

We are all used to seeing orders recite the papers upon which the order is based, most commonly in the upper right-hand corner of the first page of the decision:

This is the usual manner in which orders are written. But not always.

Dondi Problems & Guidance From The Second Department

The recital of papers upon which an order is based is something most of us likely give little thought to, though we will never not think about going forward.

There are potential problems that a litigant faces in obtaining a Dondied Order. What if the court issuing the order fails to include a recital of the papers upon which the order is based? What if the recital of the papers is not set forth in the upper right hand corner of the order where we are used to finding it?

A magisterial decision by the Second Department authored by Justice Dillon, Charalabidis v. Elnagar, 188 A.D.3d 44 (2d Dep’t, 2020), set forth six (6) part criteria for an Order to be appealable. The fifth (5^th) criteria was the “Dondi” issue:

Fifth, an order must recite the papers reviewed in determining the motion. This requirement assures the parties that all papers that have been submitted for consideration have, in fact, been reviewed and considered by the court. The requirement that the court recite the papers reviewed fulfills the purpose of defining the scope of the record on appeal. Id. at 48.

In Charalabidis the papers were not recited. So what to do if the papers considered by the court are not recited and the court will not issue an amended or corrected order? Charalabidis provides the answer: Mandamus the judge.

Most interestingly, and perhaps counter-intuitive, the final paragraph of Justice Dillon’s Decision makes clear that while counsel’s failure to Mandamus the judge in order to obtain an Order in conformity with CPLR 2219 required the dismissal of the appeal, because there was no “signed enforceable order,” Appellant’s time to appeal had not yet begun to run:

Although, in the absence of a mandamus proceeding, we are obligated to affirm the order insofar as appealed from, we note that on this record, there is no signed enforceable order by which the original counsel for the plaintiffs has been disqualified and, therefore, the time to appeal any such future order has not yet begun to run. Id. at 48.

We are quite certain none of our colleagues are chomping at the bit to invoke the nuclear option of mandamusing a judge in order to obtain an appealable order. Hopefully, if you find yourself in this situation, a gentler approach will be effective.

Conclusion

Dondi is now an adjective (Dondied order) and a verb (Dondi an order), though not recognized as such by The New American Oxford Dictionary, and others. So, the next time someone asks if your order is Dondied, make sure it is.

[1] Where’s Waldo, Martin Handford (1987).

[i] Based upon a review of the Shepard’s Report by LexisNexis on August 16, 2024.

Please see ALM.com for the full printed article.