The Concept Of Appealability

Published date06 January 2022
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation
Law FirmDuane Morris LLP
AuthorMr Thomas Newman

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...

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