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.” See 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, including orders in Article 78 proceedings, and orders requiring or refusing to require a more definite statement in a pleading, or ordering or refusing 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 as of right from an order which directs a hearing to aid in the disposition of a motion, an order holding a motion in abeyance, or an order entered sua sponte.” See GMAC Mortgage v. Yun, 206 A.D.3d 796 (2022). Such orders neither determine the motion on the merits nor affect a substantial right of any party.

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 non-final 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 non-final 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 reviewable on an appeal from the final judgment.

In Siegmund Strauss 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.

Reviewability of Summary Judgment Orders

Recently, the Court of Appeals revisited CPLR 5501(a)’s “necessarily affects” requirement in Bonczar v. Am. Multi-Cinema, 38 N.Y.3d 1023 (April 28, 2022), rearg. denied, 38 N.Y.3d 1170 (Sept. 15, 2022). The plaintiff in Bonczar brought an action under the Scaffold Law (N.Y. Labor Law §240[1]) against the defendant movie theater owner, seeking damages for injuries he sustained when he fell from ladder while working at the theater. The Supreme Court entered partial summary judgment in favor of the plaintiff on the issue of liability. The Appellate Division reversed, holding that triable issues of fact existed as to whether the worker’s own conduct was the sole proximate cause of his accident. See 158 A.D.3d 1114, 1115 (4th Dept., 2018) (the 2018 Order).

On remand, a jury returned a verdict in favor of the defendant on the issue of liability, finding no violation of §240(1) and that the plaintiff’s failure to position the ladder properly was the sole proximate cause of his injuries. During the trial, both parties presented additional evidence beyond that on the prior summary judgment motion. The Appellate Division then unanimously affirmed the resultant judgment entered in the defendant’s favor upon the jury verdict. See 185 A.D.3d 1423 (4th Dept., 2020) (the 2020 Order).

The Court of Appeals granted leave to appeal. See 36 N.Y.3d 901 (2020). The plaintiff sought review in the Court of Appeals of both the non-final 2018 Appellate Division Order denying him partial summary judgment and the 2020 Appellate Division Order affirming the final judgment entered upon the jury verdict.

The court held that the 2018 Order denying summary judgment did not necessarily affect the final judgment and thus was not reviewable on the appeal from the 2020 Order affirming the final judgment. At the outset, the court summarized its jurisprudence pertaining to CPLR 5501(a)’s “necessarily affects” requirement (see 38 N.Y.3d at 1025-26 [citations omitted]):

The 2018 Appellate Division order may be reviewed on appeal from a final paper only if, pursuant to CPLR 5501(a), the nonfinal order “necessarily affects” the final judgment. “It is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement” and “[w]e have never attempted, and we do not now attempt, a generally applicable definition.” That said, to determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated” we have inquired whether “reversal would inescapably have led to a vacatur of the judgment.” This is not such a case. In other cases, we have asked whether the nonfinal order “necessarily removed [a] legal issue from the case” so that “there was no further opportunity during the litigation to raise the question decided by the prior non-final order.”

Applying these rules, the court held that the non-final 2018 Order was not reviewable on the appeal from the 2020 Order affirming the final judgment since the 2018 Order did not strike at the foundation on which the final judgment was predicated, and did not necessarily remove any further issues from the case (see 38 N.Y.3d at 1026 [citation omitted] [material in brackets added]):

In resolving plaintiff’s summary judgment motion, the Appellate Division held that factual questions existed as to whether a statutory violation occurred and as to proximate cause, or more specifically as to whether plaintiff’s own acts or omissions were the sole proximate cause of the accident. That nonfinal order did not remove any issues from the case. Rather, the question of proximate cause and liability was left undecided. The parties had further opportunity to litigate those issues and in fact did so during the jury trial [at which both parties presented additional evidence]. Accordingly, the Appellate Division order denying summary judgment did not necessarily affect the final judgment and thus, this Court cannot review the 2018 Appellate Division order.

The court also affirmed the 2020 order, holding that “[a] rational trier of fact could have found in defendant’s favor on the Labor Law §240(1) claim.” See 38 N.Y.3d 1023, 1026 (citations omitted).

The underlying summary judgment order in Bonczar was at least reviewed at the Appellate Division level, where it was reversed. Further review at the Court of Appeals level was precluded by CPLR 5501(a)’s “necessarily affects” requirement. In other cases, such as Martell v. Dorchester Apartment, ___ A.D.3d ___, 173 N.Y.S.3d 876 (2d Dept., Sept. 14, 2022), aggrieved parties have been left without any appellate remedy at any level by operation of CPLR 5501(a)—the pitfall to which we previously referred.

Insofar as appears from the decision in Martell, the defendant did not immediately appeal from a non-final order denying its motion for summary judgment, electing instead to seek review of that order on an appeal from an adverse final judgment. Citing Matter of Aho and Bonczar, the Appellate Division held that “the right of direct appeal [from the summary judgment order] terminated with entry of the judgment in the action” and “[t]he issues raised in the appeal from the order are not brought up for review on the appeal from the judgment since the order did not necessarily affect the judgment.” See 173 N.Y.S.3d at 877 (material in brackets added). The Appellate Division accordingly dismissed the appeal from the summary judgment order, such that this order escaped appellate review at any level. Cases like Martell underscore that serious consideration should be given to an interlocutory appeal from a non-final order if there is any doubt as to the applicability of §5501(a)(1).

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