There are three basic jurisdictional considerations in the Appellate Division. First, "aggrievement" relates to the issue of whether a party has standing to appeal from a judgment or order. Second, "appealability" 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. Third, "reviewability" relates to the scope of the Appellate Division’s review of an appealable judgment or order. Judging by the volume of decisions addressing these threshold jurisdictional requirements, practitioners often overlook them before embarking upon the time and expense of an appeal.

Aggrievement

In the context of appellate jurisdiction, an appellant may only seek review upon a showing that he or she is "aggrieved" by a judgment or order. See Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 N.Y.2d 539, 544-45 (1983).

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." 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.

"[A] person is aggrieved 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 opposes, and the relief is granted in whole or in part." Matter of McCrory v. Village of Mamaroneck Bd. of Trustees, ___ A.D.3d ___, 2020 N.Y. App. Div. LEXIS 927, * 7 (2d Dept. Feb. 5, 2020). "[T]he concept of aggrievement is about whether relief was granted or withheld, and not about the reasons therefor." Mixon v. TBV, 76 A.D.3d 144, 149 (2d Dept. 2010). Thus, a successful party has no grounds for appeal "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." See Parochial Bus Sys., 60 N.Y.2d at 545.

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., Duberry v. CNM Analytics, ___ A.D.3d ___, 2020 N.Y. App. Div. LEXIS 908, *7 (2d Dept. Feb. 5, 2020). 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, 172 A.D.3d 402 (1st Dept. 2019). The default judgment is directly appealable, provided the appellant appeared and opposed the motion.

Despite the language in CPLR 5511 referring to an "aggrieved party," in rare circumstances 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 (see, e.g., Miller v. Falco, 170 A.D.3d 707 (2d Dept. 2019)) or disqualified (see, e.g., Kelleher v. Adams, 148 A.D.3d 692 (2d Dept. 2017)).

Appealability

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., Deutsche Bank Natl. Trust v. Miller, 172 A.D.3d 1890 (4th Dept. 2019). Similarly, no appeal lies from a decision (see, e.g., Gottlieb v. Colonel, ___ A.D.3d ___, 2020 N.Y. App. Div. LEXIS 1299, * 1 (2d Dept. Feb. 19, 2020)), 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., Sitbon-Robson v. Robson, 171 A.D.3d 473, 474 (1st Dept. 2019)). This list is illustrative, not exhaustive.

Assuming the existence of appealable paper, the next question is whether the judgment or order is directly (i.e., immediately) appealable either as of right or by permission. New York is generous with appeals "as of right" to the Appellate Division from interlocutory (nonfinal) orders of the Supreme Court. (As discussed below, interlocutory orders that "necessarily affect" a final judgment are also open for review on an appeal from the final judgment [see CPLR 5501(a)(1)].) Almost every type of nonfinal 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" (see CPLR 5701(a)(2)(iv-v)). Every order of sufficient importance to be worth the time and expense of an appeal is likely to fall into one of these two categories and is therefore assured immediate appellate review, should the aggrieved party elect to pursue that route.

CPLR 5701(b) lists a few relatively inconsequential 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 (1) is made in an Article 78 proceeding, (2) requires or refuses to require a more definite statement in a pleading, or (3) 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., Schaff v. Schaff, 172 A.D.3d 1421, 1422 (2d Dept. 2019)) or an order deferring the determination of a motion pending the submission of additional papers (see, e.g., Henneberry v. Borstein, 172 A.D.3d 523 (1st Dept. 2019)). Such orders neither determine the motion on the merits nor affect a substantial right of any party (see CPLR 5701(a)(2)(iv-v)).

Other court-imposed limitations on the appealability of orders are well established. For example, 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, 173 A.D.3d 1509, 1511 n. (2d Dept. 2019) (citation omitted). Likewise, an order that denies a motion for reargument is not appealable (see, e.g., Higgins v. TST 375 Hudson, ___ A.D.3d ___, 2020 N.Y. App. Div. LEXIS 339, * 3 (1st Dept. Jan. 16, 2020)), while an order that grants reargument, but adheres to the court’s original determination, is appealable (see, e.g., Starzyk v. Heslinga, 177 A.D.3d 624, 625-26 (2d Dept. 2019)).

Reviewability

Reviewability is governed by CPLR 5501 ("Scope of review"), which enumerates the issues, of law, fact, or discretion, that are subject to appellate review once the aggrievement and appealability requirements have been satisfied.

As previously noted, CPLR 5701 permits—but does not require—an immediate appeal from a nonfinal (interlocutory) order that "involves some part of the merits" or "affects a substantial right." Under CPLR 5501(a)(1), if an aggrieved party elects to defer review of an adverse interlocutory order to the end of the case, then an appeal from a final judgment will bring up such order for review provided it "necessarily affects the final judgment" and has not been previously reviewed by the appellate court. While declining to adopt a generally applicable definition of the term "necessarily affects," one test cited by the Court of Appeals is whether the result of reversing the prior nonfinal order would necessarily be to require a reversal or modification of the final judgment. See Siegmund Strauss v. East 149th Realty, 20 N.Y.3d 37, 41-42 (2012) (citation omitted).

CPLR 5501(a)(1) further provides that a prevailing party may raise an alternative ground for affirmance in opposition to the losing party’s appeal. "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.

Since no appeal lies from an order or judgment entered upon the consent of the appealing party, 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. Likewise, 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).

While CPLR 5501(c) provides that "[t]he appellate division shall review questions of law and questions of fact on an appeal from a judgment or order," it does not mention that court’s power to review an exercise of discretion by the trial court. Nevertheless, the Appellate Division unquestionably possesses all of the powers of the Supreme Court (see Northern Westchester Professional Park Associates v. Town of Bedford, 60 N.Y.2d 492, 499 (1983)), including the exercise of discretion, and one often sees an Appellate Division decision and order (one paper) reversing or modifying a judgment or order of the Supreme Court "on the law, the facts and in the exercise of discretion" (see, e.g., Kaiafas v. Ammos, ___ A.D.3d ___, 2020 N.Y. App. Div. LEXIS 15, *1 (1st Dept. Jan. 2, 2020)).

Jurisdictional requirements 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 appellate jurisdiction at the inception of the appellate process.

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.