Judging by the volume of decisions dismissing appeals on the court’s own motion for lack of appealability, practitioners often overlook appealability before embarking upon the time and expense of an appeal.

Appealability” is a threshold jurisdictional consideration that incorporates a requirement of “appealable paper” and relates to the issue of whether a direct appeal, either as of right or by permission, may be taken to the Appellate Division from the judgment or order in question. Judging by the volume of decisions dismissing appeals on the court’s own motion for lack of appealability, practitioners often overlook it before embarking upon the time and expense of an appeal.

CPLR 5512(a) (“Appealable paper”) provides in pertinent part that “[a]n initial appeal shall be taken from the judgment or order of the court of original instance.” 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).

The absence of appealable paper will result in dismissal of the appeal. For example, no appeal lies from an order that does not decide a motion made on notice. See, e.g., Jacobson Dev. Grp. v. Grossman, 198 A.D.3d 956 (2d Dept., 2021). Similarly, no appeal lies from a decision (see, e.g., Harmony Rockaway v. Gelwan, ___ A.D.3d ___, 2021 WL 5913193, at *1 (2d Dept., Dec. 15, 2021), findings of fact or a verdict that have not been reduced to a judgment or order (see, e.g., Matter of Nickel v. Nickel, 172 A.D.3d 1210, 1211 (2d Dept., 2019)), or a trial court’s decision not to sign an order to show cause (see, e.g., Laurent v. Laurent, 199 A.D.3d 523 (1st Dept., 2021)). This list is illustrative, not exhaustive.

Immediate Appeal

Assuming the existence of appealable paper, the next question is whether the judgment or order is directly appealable to the Appellate Division either as of right or by permission. New York is generous with appeals “as of right” to the Appellate Division from non-final (interlocutory) orders of the Supreme Court. Almost every type of non-final order is separately appealable to the Appellate Division as of right, about the only qualification being that it “involves some part of the merits” or “affects a substantial right” (CPLR 5701[a][2][iv-v]). Every order of sufficient importance to be worth the cost of an appeal is likely to fall into one of these two categories and is therefore assured interlocutory appellate review, should the aggrieved party so elect.

CPLR 5701(b) lists a few orders that are not appealable to the Appellate Division as of right. Under subdivision (b), an order is not appealable as of right where it (i) is made in an Article 78 proceeding, (ii) requires or refuses to require a more definite statement in a pleading, or (iii) orders or refuses to order that scandalous or prejudicial matter be stricken from a pleading. Such orders are appealable only by permission (see CPLR 5701[c]).

Certain orders, though not specifically listed in CPLR 5701(b), have been held to be non-appealable by the courts. For example, no appeal lies from an order directing a hearing to aid in the determination of a motion (see, e.g., U.S. Bank Nat’l Ass’n v. Mangroo, ___ A.D.3d ___, 2021 WL 5913281 (2d Dept., Dec. 15, 2021) or an order deferring the determination of a motion pending the submission of additional papers (see, e.g., Condo v. Condo, 180 A.D.3d 592, 592 (1st Dept., 2020)). Such orders neither determine the motion on the merits nor affect a substantial right of any party (see CPLR 5701[a][2][iv-v]).

Appellate review of certain non-final orders may be deferred—at the option of the appellant—until the entry of a final judgment, provided the order in question “necessarily affects” the judgment. Specifically, CPLR 5501(a)(1) provides that an appeal from a final judgment brings up for review “any nonfinal judgment or order which necessarily affects the final judgment * * * provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken.”

The ‘Necessarily Affects’ Requirement

Section 5501(a)(1) creates a potential trap for the unwary. Under Matter of Aho, 39 N.Y.2d 241, 248 (1976), the right of appeal from a non-final order terminates with the entry of a final judgment. The rule in Matter of Aho can present a fatal problem for an appellant who defers appellate review of a non-final order until the entry of a final judgment based upon the assumption that such order “necessarily affects” the judgment, only to have the Appellate Division conclude that it does not. In such event, the appeal from the final judgment will not bring up for review the prior non-final order, and the right of direct appeal from such non-final order will have terminated upon the entry of the final judgment, thereby leaving the aggrieved party without any appellate remedy. Accordingly, when in doubt as to the applicability of §5501(a)(1), serious consideration should be given to an interlocutory appeal from the non-final order.

This problem is compounded by the lack of any hard and fast rule as to when a prior non-final determination “necessarily affects” a subsequent final determination so as to qualify for review under §5501(a)(1). In Matter of Aho, the Court of Appeals, in determining whether the prior nonfinal order denying a motion for a change of venue necessarily affected the final judgment, considered whether a reversal of the order “would strike at the very foundation on which the final judgment was predicated.” See 39 N.Y.2d at 248. The court held that the venue order met that test and was therefore appealable on an appeal from the final judgment.

In Siegmund Strauss, Inc. v. E. 149th Realty, 20 N.Y.3d 37, 41-42 (2012), the Court of Appeals aptly observed that “[i]t is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement.” There, the court employed a “no further opportunity for review” test in holding that, on the specific facts before it, a non-final order dismissing the defendants’ counterclaims and third-party complaint was reviewable under §5501(a)(1). The court held that “because Supreme Court’s dismissal of the counterclaims and third-party claim necessarily removed that legal issue from the case (i.e., there was no further opportunity during the litigation to raise the question decided by the prior non-final order), that order necessarily affected the final judgment” and was therefore reviewable on the defendants’ appeal from the final judgment. See id. at 43.

Six months later, in Oakes v. Patel, 20 N.Y.3d 633 (2013), the Court of Appeals observed, once again, that “[o]ur opinions have rarely discussed the meaning of the expression ‘necessarily affects’ in CPLR 5501(a)(1).” See id. at 644. Matter of Aho and Siegmund Strauss were cited as two exceptions. But the court emphasized that it had never adopted “a generally applicable definition” of this term, thereby confirming that the “no further opportunity” test in Siegmund Strauss was not meant to be an across-the-board rule: “We have never attempted, and we do not now attempt, a generally applicable definition. Various tests have been proposed, but how to apply them to particular cases is not self-evident, and our decisions in this area may not all be consistent.” Id. The court in Oakes held that when a non-final order granting or denying a motion to amend relates to a proposed new pleading that contains a new cause of action or defense, the order “necessarily affects” the final judgment, and is thus brought up for review on an appeal from a final judgment.

The question has also arisen whether a party may appeal directly from an order denying a CPLR 4404 motion to set aside a verdict when that order was entered after entry of a final judgment. In Knapp v. Finger Lakes NY, 184 A.D.3d 335, 336-37 (4th Dept., 2020), lv. dismissed, 36 N.Y.3d 963 (2021), the court held that “an order otherwise appealable as of right (see CPLR 5701[a]) entered after the entry of a final judgment is not subsumed in the judgment, but is independently appealable.” In other words, an appeal from the final judgment would not bring up for review the post-judgment order denying the CPLR 4404 motion, but that subsequent order would be reviewable on a separate (but likely consolidated) appeal.

As noted, jurisdictional requirements such as “appealability” are subject to inquiry by the Appellate Division on its own motion. Thus, it is imperative for counsel for the appellant and for the respondent to consider the issue of “appealability” at the inception of the appellate process.

December 2021 marked the 50th anniversary of the Appellate Practice column in the New York Law Journal. The column was originally authored by Benjamin Siff. Thomas Newman has authored the column since 1975, and Steven Ahmuty joined him as co-author in 1987.

Thomas R. Newman is of counsel to Duane Morris and author of “New York Appellate Practice” (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.

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