An attorney was preparing for an oral argument before the Appellate Division. He had lived with this case for years. After all that time, he truly believed the motion court incorrectly granted summary judgment against his client. From his computer came the “ding” of an arriving email. From the corner of her eye, he saw that the email was from the NYSCEF system, and the subject was the case he was preparing for. He opened the email and saw a link to an emergency motion that his adversary filed seeking to dismiss his appeal and for an emergency order adjourning the oral argument.
This lawyer filed an untimely Notice of Appeal from his summary judgment order. However, he thought he was lucky when his adversary filed a judgment. He filed a timely Notice of Appeal from the judgment, and the lawyer thought he escaped catastrophe because, as far as he was aware, his appeal from the judgment would allow the Appellate Division to review his appeal from the summary judgment order. Unfortunately, the rule he thought was simple was not.
New York allows for interlocutory appeals as of right in most situations. The Court of Appeals has held that the right to appeal ends when the clerk enters a final judgment, but interlocutory orders that necessarily affect the judgment can be brought up on an appeal from the judgment (see Matter of Aho, 39 NY2d 241 [1976]). The source of the Court of Appeals’ holding was CPLR 5501(a)(1). The first part of CPLR 5501(a)(1) is the source of confusion on several topics. It states that an appeal from a judgment allows for review of “any nonfinal judgment or order which necessarily affects the final judgment…” The problem for the lawyer in our story was the word “nonfinal.” Many lawyers interpret “nonfinal” to mean any order made before the entry of judgment. Not all courts agree.
The Court of Appeals has openly struggled to precisely define what a “final order” is “Nonetheless, a fair working definition of the concept can be stated as follows: a “final” order or judgment is one that disposes of all of the causes of action between the parties in the action or proceeding and leaves nothing further for judicial action apart from mere ministerial matters” (Burke v Crosson, 85 NY2d 10, 15 [1995]). “Under this definition, an order or judgment that disposes of some but not all of the substantive and monetary disputes between the same parties is, in most cases, nonfinal” (Burke at 16).
An order granting summary judgment and dismissing a case sounds like a final order. The court’s order has resolved all the causes of action, and all that is left is for the clerk to assess costs and enter the judgment. However, the Appellate Division is inconsistent on this issue. For example, in Calcagno v Graziano (200 AD3d 1248 [3d Dept 2021]), the plaintiff filed a Notice of Appeal from a discovery order and a Notice of Appeal from an order granting the defendant summary judgment. There was no appeal taken from a judgment. The Third Department determined that the summary judgment was a final order. The Third Department dismissed the discovery appeal because the court treated the summary judgment order like a final judgment and reviewed the merits of the discovery issue on the appeal from the summary judgment order (Calcagano v Graziano, 200 AD3d at 1250 n1). Applying the logic of Calcagano to other cases, it would seem that the Third Department would not use a judgment to review an order that granted a dismissal on summary judgment, when it previously held that a summary judgment order dismissing a case is the final order.
The First Department has been more explicit in holding that a timely appeal from a judgment cannot revive an untimely appeal from a summary judgment order. In Geronimo v Guzman (216 AD3d 455 [1st Dept 2023]), the First Department dismissed the plaintiff’s appeal from the judgment due to the plaintiff’s failure to timely appeal from the defendant’s order graning summary judgment to the defendant. The First Department did not consider the merits of the plaintiff’s appeal because the court concluded it did not have jurisdiction to hear the appeal. “Plaintiff, who failed to timely appeal the order, cannot revive the appeal by the expedient of effecting a ministerial entry of judgment upon the final order after the time to appeal had elapsed” (Geronimo, 216 Add at 455 [internal citations and quotation marks omitted]).
The Second Department takes a different and routine approach. That court will issue decisions from summary judgment orders that state “[t]he appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment” (Abruzzi v Maller, 221 AD3d 753 [2d Dept 2023] [internal citations omitted]). These two sentences are a preamble to seemingly every case the Second Department decides when there was a summary judgment order dismissing a case followed by a judgment.
In our story’s context, assumptions led the attorney to believe there was uniformity across the four departments of the Appellate Division regarding procedural nuance. The safest bet for other lawyers is to file a Notice of Appeal promptly from every order or judgment they wish to appeal and make sure the Appellate Division does not dismiss those appeals for lack of prosecution. Keep them alive for as long as possible to avoid losing the right to make certain arguments. Keeping those appeals viable and knowing when to withdraw an appeal from an interlocutory order can be complicated and collaborating with appellate counsel can safeguard litigators from this and other procedural pitfalls.
Precision is paramount in navigating the intricate terrain of appellate practice. Appellate counsel can help litigators understand the nuances that distinguish success from setbacks. Contact us today to assist you with your complex litigation.