New York’s appellate process is very liberal. Most orders can be appealed before a judgment is entered. This general proposition leads many to think that everything a court does is immediately appealable as of right. However, there are certain acts of a trial court that are not appealable as of right, or appealable at all. Knowing which acts of a court are appealable, and how to make non-appealable acts appealable can avoid unnecessary delay and expense.
CPLR 5512 defines what is appealable, and it is limited to two types of documents: a signed order entered in the clerk’s office, or a signed judgment entered in the clerk’s office. These documents are referred to as “appealable papers.” This means decisions not converted to orders are not appealable (see Charalbidis v Elnagar, 188 AD3d 44 [2d Dept 2020]). Verdicts are also not appealable. Oral rulings, or rulings made because of something other than a motion made on notice are not appealable (id.). However, a transcript that is signed by a Justice and is so-ordered is an order (Bankers Trust Co. of Cal. V Ward, 269 AD2d 480 [2d Dept 2000]). However, not all orders are appealable as of right. To be appealable as of right, the order must be issued as a result of a motion made on notice (CPLR 5701[a] [2]).
The fact that an order is not appealable as of right does not mean that it is impossible to take an appeal. One approach could be making a motion before the Appellate Division for permission to appeal (CPLR 5701[c]). The Appellate Division can treat a Notice of Appeal as a request for permission to appeal and grant that permission without a motion being made (see Smith v Niagara Frontier Transit Metro System, Inc., 75 AD3d 1084 [4th Dept 2010]). Moving to vacate a non-appealable order can produce an appealable paper (see Sholes v Meagher, 100 NY2d 333 [2003]).
However, not all orders from motions made on notice are appealable as of right or by permission. For example, an order deciding a motion in limine concerning the admissibility of evidence is not appealable (see Harris v Rome Mem. Hosp., 219 AD3d 1129 [4th Dept 2023]). A motion to reargue is not appealable (see Hefti v New York State Div. of Hous. & Community Renewal, 231 AD3d 515 [1st Dept 2024]). An order or judgment issued on default usually cannot be appealed (CPLR 5511).
Determining which rulings or orders are appealable or can be appealed by permission is not always straightforward. Similarly, the appropriate steps to make a ruling or order appealable can also raise unique procedural challenges. Appellate counsel can assist litigators in evaluating these procedural issues and assist in mapping out the best strategy for the case. Contact the Law Offices of Seth M. Weinberg for more information about how appellate issues can impact your case.