Jurisdictional Considerations

In our recent column, The Aggrievement Requirement (NYLJ, Mar.31, 2026), we discussed the general rule that only parties—and only “aggrieved” parties—may appeal from a judgment or order. CPLR 5511 (“Permissible appellant and respondent”) provides that “[a]n aggrieved party or a person substituted for him may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party.”

This month, we examine two other jurisdictional considerations: “appealable paper” (CPLR 5512) and a timely notice of appeal or motion for permission to appeal (CPLR 5513). The volume of cases addressing these threshold requirements suggests that would-be appellants often overlook them, resulting in dismissal of their appeal for lack of appellate jurisdiction.

CPLR 5512(a) (appealable paper) provides that “[a]n initial appeal shall be taken from the judgment or order of the court of original instance and an appeal seeking review of an appellate determination shall be taken from the order entered in the office of the clerk of the court whose order is sought to be reviewed.”

This “appealable paper” requirement is jurisdictional and subject to inquiry by the court on its own motion even if the respondent has not raised the issue. Thus, in Reynoso v. Dennison, 10 N.Y.3d 799 (2008), the court dismissed the appeal, sua sponte, “upon the ground that the document appealed from is not a judgment or an order from which an appeal to the Court of Appeals may be taken.”

Appealable Paper

Generally, the test for identifying an appealable judgment or order is whether the court has entered a written order that determines “a motion made upon supporting papers” (see CPLR 2219[a]) or a judgment that determines “the rights of the parties in an action or special proceeding” and “refer[s] to, and state[s] the result of, the verdict or decision” (see CPLR 5011).

“[N]o appeal lies as of right from an order that does not decide a motion made on notice.” Morse v. Morse, ___ A.D.3d ___, 2026 WL 1111719, at *1 (4th Dept., Apr. 24, 2026). Accordingly, there is no right of appeal from an ex parte order, including an order entered sua sponte. See Sholes v. Meagher, 100 N.Y.2d 333, 334 (2003). The proper procedure to challenge an ex parte or sua sponte order is to move to vacate the order, pursuant to CPLR 5015 and 5701(a)(3), and then, if denied, appeal from the order denying that motion.

Similarly, no appeal lies from a decision (Citibank, N.A. v. Wu, ___ A.D.3d ___, 2026 WL 943615, at *1 [2d Dept., Apr. 8, 2026]), findings of fact or a verdict that have not been reduced to a judgment or order (Matter of Bazinian v. Grimberg, 244 A.D.3d 1106, 1107 [2d Dept., 2025]), an order directing a conference or hearing to aid in the determination of a motion (Schaff v. Schaff, 172 A.D.3d 1421, 1422 [2d Dept., 2019]), an order deferring the determination of a motion pending the submission of additional papers (Henneberry v. Borstein, 172 A.D.3d 523, 524 [1st Dept., 2019]), or a trial court’s refusal to sign an order to show cause (S.A.W. v. Archdiocese of New York, 246 A.D.3d 451, 452 (1st Dept., 2026). This list is illustrative, not exhaustive.

Generally, an order ruling on a motion in limine, even when made in advance of trial on motion papers, constitutes a non-appealable advisory opinion. See Dentico v. Turner Constr. Co., 224 A.D.3d 1386 (4th Dept., 2024); Rondout Elec., Inc. v. Dover Union Free Sch. Dist., 304 A.D.2d 808 (2d Dept., 2003). For example, rulings made by a trial court prior to trial regarding a jury charge are generally not appealable, as they are advisory opinions. See Hutchinson v. New York City Health & Hosps. Corp., 172 A.D.3d 1035, 1036 (2d Dept., 2019).

However, an order ruling on a motion in limine that “limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party” is to be distinguished. Such orders are appealable. See Matter of Cobleskill Stone Prods., Inc. v. Town of Schoharie, 173 A.D.3d 1509, 1511 n.1 (3d Dept., 2019) (citation omitted).

Thus, in Jozwik v. Monir, 228 A.D.3d 461, 461-62 (1st Dept., 2024) (citations omitted), an order that granted the defendants’ motion in limine to preclude testimony from the plaintiff’s medical expert was directly appealable since “[t]he evidentiary ruling challenged by the plaintiff, which led to dismissal of the action based on the plaintiff’s inability to meet the serious injury threshold (Insurance Law §5102), was the ‘functional equivalent’ of a ruling on a summary judgment motion.”

Any such motion, even though styled as one in limine, will be denied as untimely unless made within the time limits for summary judgment motions. CPLR 3212(a); see Desantis v. Desantis, 225 A.D.3d 839, 840 (2d Dept., 2024).

The lesson that emerges is that, in all but the most obvious instances of “appealable paper,” it is advisable to consult with the case law interpreting this term to confirm that this threshold jurisdictional requirement has been satisfied.

Notice of Appeal

After confirming that the judgment or order in question constitutes appealable paper, the next step is to “take” a timely appeal. An appeal is “taken” by “serving on the adverse party a notice of appeal and filing it in the office where the judgment or order of the court of original instance is entered” (CPLR 5515[1]).

An appeal must be taken “within 30 days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry” (CPLR 5513[a]). “The time period for filing a notice of appeal is nonwaivable and jurisdictional.” New Residential Mortg. Loan Tr. v. Hafferkamp, ___ A.D.3d ___, 2026 WL 1016705 (2d Dept., Apr. 15, 2026) (citation omitted).

Unless the judgment or order requires service by a particular method to commence the running of the 30-day appeal period, service by the prevailing party of a copy of the judgment or order, with notice of entry, will trigger the time to appeal. If service is made by regular mail, five days are added to the appeal period; one business day is added for service by overnight delivery (see CPLR 2103[b][2] and [6]). CPLR 5513(d) affords the appellant the additional time under CPLR 2103(b) even though the appellant itself serves the judgment or order, with notice of entry, on the prevailing party.

In an action subject to e-filing, the County Clerk enters judgments and orders by electronically filing them on the New York State Courts Electronic Filing (NYSCEF) site (see 22 N.Y.C.R.R. 202.5-b[h][1]). Upon the entry of a judgment or order in this manner, the NYSCEF site transmits a notification of receipt of such entry to the parties’ e-mail service addresses, but this does not constitute service of a notice of entry by any party.

Instead, pursuant to CPLR 5513(a), a party must serve a copy of the judgment or order with notice of entry. In e-filed cases, this may be accomplished by electronically filing a copy of the judgment or order and written notice of its entry on the NYSCEF site, which constitutes service thereof and triggers the 30-day appeal time.

Alternatively, a party in an e-filed case may serve a notice of entry by any method set forth in CPLR 2103(b)(1-6). Typically, this entails service by regular mail, which enlarges the 30-day appeal time by adding five extra days for a total of 35 days. Uploading a previously mail-served notice of entry to the NYSCEF site does not constitute additional service thereof (see 22 N.Y.C.R.R. 202.5-b[h][2]).

CPLR 5520 (“Omissions; appeal by improper method”) authorizes the court to excuse technical omissions in notices of appeal unless their forgiveness would prejudice another party’s substantive rights. As noted, “taking” an appeal entails serving the notice of appeal on the adverse party and filing the notice with the clerk. If a party takes one of those steps on a timely basis, but omits the other “through mistake or excusable neglect,” subdivision (a) permits the court to grant an extension of time for curing the omission. E.g., M Entertainment, Inc. v. Leydier, 13 N.Y.3d 827 (2009) (notice of appeal improperly served but timely filed with the clerk).

An appellant may mistakenly file a motion for permission to appeal from a judgment or order that is appealable as of right. Subdivision (b) provides that “[a]n appeal taken by permission shall not be dismissed upon the ground that the appeal would lie as of right and was not taken within the time limited for an appeal as of right, provided the motion for permission was made within the time limited for taking the appeal.”

Subdivision (c) authorizes the court to excuse defects in form “[w]here a notice of appeal is premature or contains an inaccurate description of the judgment or order appealed from.” E.g., Tilipman v. Ryan Korban LLC, 247 A.D.3d 557 (3d Dept., 2026) (premature appeal from order rather than ensuing final judgment); Cortez v. Royal Stone Cabinet & Tile Inc., 247 A.D.3d 1394, 1395 (1st Dept., 2026) (notice of appeal referenced an incorrect date of filing of the order appealed from).

In sum, with regard to the notice of appeal, timeliness is the overriding concern. Protective as the courts are with regard to a party’s right to appeal, however, an untimely notice of appeal is fatal. The time period for taking an appeal may not be extended by stipulation of the parties, see Haverstraw Park, Inc. v. Runcible Properties Corp., 33 N.Y.2d 637 (1973), or by the court, except on the extremely limited grounds enumerated in CPLR 5514(c). Missing the filing deadline by even one day will result in dismissal of the appeal as untimely. See, e.g., Avgush v. Jerry Fontan, Inc., 167 A.D3d 484 (1st Dept., 2018).

It is better to let someone else contribute to the body of case law governing the timeliness of appeals. Receiving a motion to dismiss your appeal for untimeliness will probably result in many sleepless nights. This can be easily avoided by serving and filing a notice of appeal early upon receipt of a colorable notice of entry of an appealable paper, without waiting until the thirtieth or 35th day just be because the relevant statutes allot that much time.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.