Thomas R. Newman

In our recent column, Recurring Pitfalls in Taking Appeals, N.Y.L.J (March 5, 2019), we discussed the requirement of serving and filing a notice of appeal "within thirty 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" (see CPLR 5513[a]). This time limitation "is nonwaivable and jurisdictional." See Jones Sledzik Garneau & Nardone v. Schloss, 37 A.D.3d 417 (2d Dep’t 2007).

This month, we examine two other jurisdictional considerations: "aggrievement" (CPLR 5511) and "appealable paper" (CPLR 5512). 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 5511 ("Permissible appellant and respondent") provides that "[a]n aggrieved party * * * may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party.” The requirement that an appellant be an aggrieved party is jurisdictional and will be subject to inquiry by the appellate court on its own motion. “It is appropriate for an appellate court to inquire into the appealability of the order under review, even where the respondent on the appeal has not specifically requested that the appeal be dismissed.” Wohl v. Wohl, 26 A.D.3d 326 (2d Dep’t 2006) (citations omitted). In Matter of Niagara Mohawk Power v. Green Island Power Authority, 94 N.Y.2d 891 (2000), for example, the Court of Appeals dismissed the appeal, sua sponte, "upon the ground that appellants are not parties aggrieved." While it is usually readily apparent whether a party wishing to appeal is aggrieved by a judgment or order, this is not always the case and can be a source of difficulty.

The Meaning of 'Aggrievement'

The leading case of Parochial Bus Systems v. Bd. of Educ. of City of New York, 60 N.Y.2d 539, 544-45 (1983) (citations omitted), provides a useful starting point for determining whether a party is aggrieved by a judgment or order for appellate purposes:

Generally, the party who has successfully obtained a judgment or order in his favor is not aggrieved by it, and, consequently, has no need and, in fact, no right to appeal. The major exception to this general rule, however, is that the successful party may appeal or cross-appeal from a judgment or order in his favor if he is nevertheless prejudiced because it does not grant him complete relief. This exception would include those situations in which the successful party received an award less favorable than he sought or a judgment which denied him some affirmative claim or substantial right. But where the successful party has obtained the full relief sought, he has no grounds for appeal or cross appeal. This is so even where that party disagrees with the particular findings, rationale or the opinion supporting the judgment or order below in his favor, or where he failed to prevail on all the issues that had been raised.

Courts have construed Parochial Bus to mean that "the concept of aggrievement is about whether relief was granted or withheld, and not about the reasons therefor." See Mixon v. TBV, 76 A.D.3d 144, 149 (2d Dep’t 2010). Thus, "[a] person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him or her, which the person opposed, and the relief is granted in whole or in part." See Daviotis v. Kappa Servs., 161 A.D.3d 722 (2d Dep’t 2018).

A prevailing party may, however, raise an alternative ground for affirmance in opposition to the losing party’s appeal (see CPLR 5501[a][1]). "Hence, the successful party, who is not aggrieved by the judgment or order appealed from and who, therefore, has no right to bring an appeal, is entitled to raise an error made below, for review by the appellate court, as long as that error has been properly preserved and would, if corrected, support a judgment in his favor." Parochial Bus, 60 N.Y.2d at 545-46.

"Aggrievement is an appellate concept which is designed to screen out appeals taken by those who have only a mere academic interest, or no interest at all, in the outcome." Newton v. McFarlane, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 1987 (2d Dept. June 11, 2019) (citation omitted). Despite the language in CPLR 5511 referring to an "aggrieved party," a non-party may appeal from a judgment or order that directly affects his or her interest. For example, an attorney for a party may appeal where he or she has been sanctioned (Miller v. Falco, 170 A.D.3d 707 (2d Dep’t 2019)) or disqualified (Kelleher v. Adams, 148 A.D.3d 692 (2d Dep’t 2017)). Similarly, a proposed intervenor may appeal from an order denying its motion to intervene. See Federal Natl. Mtge. Assn. v. Sanchez, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 3805 (2d Dep’t May 15, 2019).

As expressly stated in CPLR 5511, an aggrieved party may not appeal from a judgment or order "entered upon the default of [that] party." See, e.g., CVM Partners 1 v. Adams, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 4893 (2d Dep’t June 19, 2019). Instead, the proper procedure is for the defaulting party to move to vacate the default pursuant to CPLR 5015(a)(1) ("Relief from judgment or order"), and in the event of the denial of that motion, to appeal from the resultant order. An exception to this rule has been recognized where the default judgment arises from a contested motion under CPLR 3215. See, e.g., Levine v. Singal, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 3455 (1st Dep’t May 2, 2019). The default judgment is directly appealable, provided the appellant appeared and opposed the motion.

Similarly, no appeal lies from an order or judgment entered upon the consent of the appealing party. See, e.g., Matter of DiSisto v. Dimitri, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 4707 (2d Dep’t June 12, 2019). Thus, a party who stipulates to modification of a damage award in lieu of a new trial—the remittitur and additur procedures—is not aggrieved by that modification and may not appeal from it. See Dudley v. Perkins, 235 N.Y. 448, 457 (1923). If the adverse party appeals from the judgment on unrelated issues, however, CPLR 5501(a)(5) confers jurisdiction on the Appellate Division to review the appropriateness of the remittitur or additur and to reinstate part or all of the original damage award. By the same token, a party who stipulates to modification of a damage award may seek appellate review of other unrelated issues in the case such as liability issues. See Adams v. Genie Industries, 14 N.Y.3d 353 (2010).

Appealable Paper

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." Once again, 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 Mitchell v. Breslin, 99 N.Y.2d 637 (2003), the Court of Appeals 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."

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).

No appeal lies from an order that does not decide a motion made on notice. See Deutsche Bank Natl. Trust v. Miller, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 3485 (4th Dep’t May 2, 2019). For example, in Ford v. Mary Manning Walsh Nursing Home Co., __ A.D.3d __, 2019 N.Y. Misc. LEXIS 2932 (Sup. Ct., N.Y. Co., May 30, 2019), the court made an oral order from the bench directing the defendant to produce documents from its privilege log. The court noted that this order was not appealable because it "was not made in response to a motion on notice." The court further noted that “the appropriate procedure to challenge an 'ex parte' or 'sua sponte' order of an IAS court is to move to vacate the order, pursuant to CPLR 5015 and 5701(a)(3), and then, if denied, appeal from the denial of that motion so that a suitable record may be made and counsel afforded the opportunity to be heard on the issues.”

Similarly, no appeal lies from a decision (Partridge v. State of New York, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 3714 (3d Dep’t May 9, 2019)), findings of fact or a verdict that have not been reduced to a judgment or order (Matter of Nickel v. Nickel, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 3986 (2d Dep’t May 22, 2019)), an order directing a hearing to aid in the determination of a motion (Schaff v. Schaff, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 4205 [2d Dep’t May 29, 2019]), an order deferring the determination of a motion pending the submission of additional papers (Henneberry v. Borstein, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 3858 (1st Dep’t May 16, 2019)), or a trial court’s decision not to sign an order to show cause (Sitbon-Robson v. Robson, 171 A.D.3d 473 (1st Dep’t 2019)). This list is illustrative, not exhaustive.

An order ruling on a motion in limine is generally not appealable as of right or by permission, but an order that "limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party" is appealable. See In re Cobleskill Stone Products, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 5027 (2d Dep’t June 20, 2019) (citation omitted). Thus, in Matter of Rochester Genesee Regional Transp. Auth. v. Stensrud, __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 4538 (2d Dep’t June 7, 2019), a condemnation proceeding, an order that limited the scope of the issues at trial by precluding the introduction of evidence regarding the respondents’ primary method of property valuation was held appealable.

"Rulings made by a trial court prior to trial regarding a jury charge are generally not appealable, as they are advisory opinions [but] orders that decide motions to impose sanctions for spoliation of evidence, including the sanction of directing an adverse inference charge, are appealable." Hutchinson v. New York City Health & Hosps., __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 3826 (2d Dep’t May 15, 2019).

The lesson that emerges is that, in all but the most obvious instances of "aggrievement" and "appealable paper," it is advisable to consult with the case law interpreting these terms to confirm that these threshold jurisdictional requirements have been satisfied.

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 members of the American Academy of Appellate Lawyers.

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