Unlike the very restrictive federal practice with regard to the right to appeal from an interlocutory order,¹ New York is extremely generous in permitting litigants to take interlocutory appeals, as of right, to the Appellate Division from just about every type of nonfinal order in an action originating in the Supreme Court or a County Court.

With only a few exceptions, the only requirements are that the order 'involves some part of the merits' or 'affects a substantial right'² and results from a motion made on notice. Ex parte orders are not appealable, ³ although they are reviewable under CPLR §5704. Every order of sufficient importance to be worth the cost of an appeal is likely to fall into one of these categories and is, therefore, assured of appellate review.

The right of direct appeal from an intermediate order terminates with the entry of judgment in the action.⁴ However, where the order 'necessarily affects the final judgment,' it will be reviewable on an appeal from the final judgment, even though it was not separately appealed when made.⁵ With this in mind, an appeal from a nonfinal order should not be taken with the expectation that it will stay the action or proceeding during the pendency of the appeal. It will not. To obtain a stay, the appellant must come within the automatic stay provisions of CPLR 5519(a) or seek such relief under CPLR §5519(c) from either the court from which the appeal is taken or the Appellate Division.

Orders Not Separately Appealable

CPLR §5701(b) lists three kinds of orders that are not separately appealable as of right to the Appellate Division: (1) an order made in an Article 78 proceeding; (2) one that requires or refuses to require a more definite statement in a pleading; and (3) one that orders or refuses to order that scandalous or prejudicial matter be stricken from a pleading. Even in these cases, the persistent would-be appellant may seek permission to appeal under CPLR §5701(c) from the judge who made the order or from a justice of the Appellate Division in the department to which the appeal could be taken, upon refusal by the judge who made the order or upon direct application.

Certain other types of orders, while not listed in CPLR §5701(b), have been held to be nonappealable by well-established, court-imposed limitations on appealability. A number of these, which we discuss below, are well-known, but, in case of doubt, always check the annotations under CPLR §5701 to determine the appealability of any particular order.

The denial of a motion for reargument of a prior motion is not appealable, and this is so even though the motion is denominated as one for 'renewal and reargument' where the purportedly new material could have been submitted in support of the original motion.⁶ However, an order denying a motion for reargument is appealable if permission is granted under CPLR §5701(a)(2), (c).⁷

A party who intentionally or through neglect did not oppose a motion is not aggrieved by the resulting order and may not appeal therefrom.⁸ For example, a plaintiff's appeal from an order granting defendant's motion for summary judgment was dismissed because plaintiff's 'failure to submit papers in opposition to defendant's motion for summary judgment precludes appellate challenge to the court's order granting such motion.'⁹

Similarly, a party is not aggrieved by an order entered on consent and such orders are not appealable as of right. An order entered pursuant to stipulation placed on the record in court is an order on consent from which no appeal lies.¹⁰ The remedy in such case is to move to vacate the stipulation and, if the motion is denied, appeal from that order.

No appeal lies as of right from an order made on an application to review objections raised at an examination before trial.¹¹ Accordingly, an appeal from an order granting or denying an application to compel a witness to answer questions propounded at an examination before trial will be dismissed. Where such an order also provides for other relief adverse to the appellant, an appeal will be permitted from so much of the order as pertains to matters other than questions at the deposition.¹²

Where a defendant limited his appeal to Supreme Court's overruling of his invocation of the attorney-client privilege to questions at his examination before trial, the Third Department noted that 'it is highly arguable that an order overruling a claim of statutory privilege 'affects a substantial right'...and is, therefore, directly appealable even in the context of discovery proceedings.'¹³ In that case, the Appellate Division did not have to resolve the question of the appealability of the Supreme Court's order because it found that 'the issue raised in this appeal is of sufficient novelty and importance in this likely protracted litigation to merit treating defendant's briefs as an application for leave to appeal, and we hereby grant permission.'¹⁴ Similarly, permission to appeal was granted where the appeal was from an order of the Supreme Court that had denied defendant's motion to compel the infant plaintiff's parents to submit to an examination before trial and provide medical authorizations on the ground that the medical information was privileged.¹⁵

'Precalendar' Conference Orders

Preliminary (or 'precalendar') conference orders are not appealable because they are not made after a motion on notice.¹⁶ Thus, an appeal from an order which directed plaintiff, in the event he decided to produce a vocational expert to testify to his inability or limited ability to be employed, to produce a copy of the vocational expert's report, was dismissed.¹⁷ To obtain appellate review of such orders, the aggrieved party must make a motion, on notice, to vacate or modify the preliminary conference order and, if the motion is denied, appeal from that order.¹⁸

In Parker v. Mobil Oil Corp.,¹⁹ however, the Appellate Division, Second Department, addressed the issue of the appealability of an order deciding a pretrial motion in limine. The court held that an order 'made in advance of trial which merely determine[s] the admissibility of evidence is an unappealable advisory ruling,' but 'an order which limits the scope of issues to be tried is appealable.'²⁰ In Hough v. Hicks,²¹ the court dismissed the defendant's purported appeal from an order that denied his motion to preclude the admission of evidence relating to seat-belt usage at voir dire and trial.

In each case, the appealable paper must be a formal written order, as opposed to some merely oral direction or ruling. CPLR 2219(a) provides that '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.'

Split in the Departments

There is a split in the departments of the Appellate Division as to whether an order of reference to hear and report is appealable as of right. In the First Department, such orders have consistently been found to be appealable as of right because they 'certainly affect a substantial right of defendant insofar as she 'would be required thereunder to submit to a lengthy and expensive hearing.''²²

The Second Department, on the other hand, has held that an order directing a judicial hearing to aid in the disposition of a motion is not appealable as of right, but only by permission, because it does not decide the motion and, therefore, in that court's view, does not adversely affect a substantial right of the party.²³

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

Footnotes

1. 28 USC §1292(b). The District Court must first certify in writing that the order sought to be appealed 'involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.' The Court of Appeals may then, in its discretion, permit an appeal to be taken from such order.
2. CPLR §5701[a][2][iv-v].
3. DeLuca v. Federated Dep't Stores, Inc., 259 AD2d 421, 687 NYS2d 147 (1st Dep't 1999).
4. Matter of Aho, 39 NY2d 241,248,383 NYS2d 285 (1976); Il Classico Restaurant, Inc. v. Colin, 254 AD2d 418,680 NYS2d 107 (2d Dep't 1998).
5. CPLR §5501[a][1].
6. Roman v. Konis, 254 AD2d 269, 678 NYS2d 121 (2d Dep't 1998).
7. Edwards v. C&D Unlimited, Inc., 289 AD2d 370, 735 NYS2d 141, 143 (2d Dep't 2001).
8. CPLR §5511.
9. Parker v. Soper, 159 AD2d 973, 553 NYS2d 928 (4th Dep't 1990).
10. Matter of Larkin-King v. King, 159 AD2d 626, 553 NYS2d 1002 (2d Dep't 1990).
11. Strain v. Strain, 259 AD2d 481,686 NYS2d 98 (2d Dep't 1999).
12. Courtney v. Edelschick, 157 AD2d 818, 550 NYS2d 415 (2d Dept. 1990) (order denied motion to compel a nonparty to answer questions at deposition and to disqualify witness and his law firm).
13. Hoopes v. Carota, 142 AD2d 906, 908, 531 NYS2d 407, 409 (3d Dep't 1988).
14. Ibid.
15. Hughson v. St. Francis Hosp. of Port Jervis, 93 AD2d 491, 495, 463 NYS2d 224 (2d Dep't 1983).
16. DeLuca v. Federated Dep't Stores, Inc., 259 AD2d 421, 687 NYS2d 147 (1st Dep't 1999).
17. Bork v. City of New York, 237 AD2d 218, 655 NYS2d 32, 33 (1st Dep't 1997).
18. Velasquez v. C.F.T., Inc., 267 AD2d 229, 699 NYS2d 470 (2d Dep't 1999).
19. 16 AD3d 648, 793 NYS2d 434 (2d Dept., 2005).
20. Id. at 650, 793 NYS2d at 436.
21. 160 AD2d 1114, 554 NYS2d 340 (3d Dep't 1990).
22. H & Y Realty Co. v. Baron, 160 AD2d 412, 554 NYS2d 111 (1st Dep't 1990).
23. Daly v. Meiskin, 6 AD3d 646, 775 NYS2d 552 (2d Dep't 2004).

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