When to Appeal from an Intermediate Order in New York State Courts
On April 29, 2011, in Abasciano v. Dandrea,1 the New York Supreme Court Appellate Division for the Fourth Department dismissed an appeal for lack of appellate jurisdiction because the trial court order being appealed was not considered a final order. The Fourth Department’s decision reaffirms the rule that “an appeal from a nonfinal order or an intermediate order does not bring up for review prior nonfinal orders.”2 The decision also demonstrates the importance of knowing when it is essential to take advantage of New York State’s liberal rules regarding interlocutory appeals.
In Abasciano, the plaintiff brought an action for dissolution of a partnership, and asserted claims for quantum meruit, unjust enrichment and breach of fiduciary duty against an individual business partner. The defendant, in two cross-motions to dismiss, challenged the trial court’s jurisdiction over the action based on the plaintiff’s failure to properly serve a summons. The trial court denied both motions. However, the defendant failed to immediately appeal from either nonfinal decision (which the defendant could have done pursuant to Rule 5701 of the New York Civil Practice Law and Rules (“CPLR”)).3
Rather, the defendant appealed the denials after the trial court issued a subsequent order requiring the immediate listing of certain partnership property for sale. In appealing from this subsequent order, the defendant incorrectly relied on CPLR 5501 to seek review of the prior orders denying dismissal of the action.4 Because the order directing the sale of property was a nonfinal order, the Fourth Department lacked jurisdiction to review the prior nonfinal orders and dismissed the appeal.
The lesson from Abasciano is that where it is necessary to file an interlocutory appeal for strategic reasons, a litigant must appeal directly from the nonfinal order. If the litigant fails to do so, the appeal right is lost until the court issues a final order that brings all nonfinal orders up for review. In some cases, as in Abasciano, a party’s position may have already changed by the time a final order is issued.
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1 Abasciano v. Dandrea, 2011 N.Y. Slip Op. 3422, 2011 N.Y. App. Div. LEXIS 3329 (4th Dep’t 2011).
2 Id. at *1.
3 With only a few enumerated exceptions, an appeal can be taken from almost any nonfinal order so long as the order “involves . . . the merits” or “affects a substantial right.” See CPLR 5701(a)(2)(iv), et seq.
4 Pursuant to CPLR 5501(a)(1), an appeal from a final judgment or order generally brings up all nonfinal orders for review in the appeal.