New York’s appeal rules can make waiting risky: if a final judgment doesn’t qualify to bring an earlier order up for review, the chance to appeal that order may be lost.

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50 years ago, in September 1976, Tom Newman took over the writing of this column after the sudden and untimely death of his partner, Benjamin H. Siff, who had been chosen by the New York Law Journal in December 1971 to write a new monthly column on appellate practice.

In September 1989, Tom was joined as his co-author by his former partner Steven Ahmuty. As the longevity of this column attests, there is still a great deal one can write about New York appellate practice.

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 immediate appellate review, should the aggrieved party so elect.

CPLR 5701(b) lists a few relatively inconsequential 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, LLC v. Yun, 206 A.D.3d 796 (2d Dept., 2022).

Similarly, no appeal lies as of right from an order which directs an in camera inspection of documents to aid in the determination of a pending motion. See, e.g., Izquierdo v. Amsterdam Ave. Redevelopment Assocs., LLC, 245 A.D.3d 468, 471 (1st Dept., 2026). Such orders neither determine the motion on the merits nor affect a substantial right of any party.

Other court-imposed limitations on the appealability of orders are well established. For example, an order determining a motion in limine, even when made in advance of trial on motion papers, is generally not appealable as of right or by permission. See Dentico v. Turner Constr. Co., 224 A.D.3d 1386 (4th Dept., 2024) (citations omitted).

“There is, however, a distinction between an order that limits the admissibility of evidence, which is not appealable * * * and one that limits the legal theories of liability to be tried or the scope of the issues at trial, which is appealable.” See Harris v. Rome Memorial Hosp., 219 A.D.3d 1129, 1131 (4th Dept., 2023) (internal quotation marks and citations omitted).

The “Necessarily Affects” Requirement

Even if a non-final order is immediately appealable as of right, because it “involves some part of the merits” or “affects a substantial right,” appellate review of the order in question may nevertheless be deferred—at the option of the appellant—until the entry of a final judgment, provided such order “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.”

There is no hard and fast rule as to when a prior non-final order “necessarily affects” a subsequent final judgment so as to qualify for review under Section 5501(a)(1). In Matter of Aho, 39 N.Y.2d 241, 248 (1976), the Court of Appeals addressed the issue of whether a prior non-final order denying a motion for a change of venue necessarily affected the final judgment.

The court concluded that a reversal of the venue order “would strike at the foundation on which the final judgment was predicated,” such that “reversal would inescapably have led to a vacatur of the judgment.” The court held that the venue order was therefore reviewable on an appeal from the final judgment.

In Siegmund Strauss, Inc. v. E. 149th Realty Corp., 20 N.Y.3d 37, 41-42 (2012), the Court of Appeals observed that “[i]t is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement.” 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 action necessarily affected the final judgment and was therefore reviewable under Section 5501(a)(1).

The court concluded that the defendants were not required to show that reinstatement of their counterclaims and third-party action would completely overturn the judgment in favor of the plaintiff. Rather, it was sufficient to demonstrate that the trial court’s dismissal of those claims “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).”

Six months later, in Oakes v. Patel, 20 N.Y.3d 633 (2013), the Court of Appeals addressed the issue of whether a non-final order denying the defendant’s motion to amend its answer to assert a defense of release necessarily affected the final judgment in the plaintiff’s favor. Once again, the court declined to adopt a definitive test for the “necessarily affects” rule, noting instead that “[t]here will be times, of which this is one, when such a ruling ‘necessarily affects’ the final judgment under any common sense understanding of those words.”

In Oakes, the “motion to amend, if granted, would have added a new defense to the case—one that defendants argue, with at least colorable justification, would have significantly changed the case’s result.” The court concluded that “in such cases—when an 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.”

The Court of Appeals revisited the “necessarily affects” rule in Bonczar v. Am. Multi-Cinema, Inc., 38 N.Y.3d 1023 (2022), rearg. denied, 38 N.Y.3d 1170 (2022), in the context of a non-final Appellate Division order denying the plaintiff’s motion for partial summary judgment. The plaintiff in Bonczar brought a Labor Law §240(1) action against the defendant theater owner for injuries sustained in a fall from a ladder 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 (the “2018 Appellate Division order”).

On remand, a jury returned a verdict in favor of the defendant on the issue of liability, finding that the plaintiff’s failure to position the ladder properly was the sole proximate cause of his injuries. The Appellate Division then unanimously affirmed the resultant final judgment entered in the defendant’s favor upon the jury verdict (the “2020 Appellate Division order”).

After the Court of Appeals granted leave to appeal, the plaintiff sought review of both the non-final 2018 Appellate Division order denying his summary judgment motion, arguing that it necessarily affected the final judgment, and of the 2020 Appellate Division order affirming the final judgment entered upon the jury verdict.

Noting that it had never articulated a rule of general applicability to determine whether a non-final order “necessarily affects” a final judgment, the court in Bonczar observed that cases such as Aho framed the issue as whether “the prior order str[uck] at the foundation on which the final judgment was predicated,” such that “reversal would inescapably have led to a vacatur of the judgment.” See 38 N.Y.3d at 1025 (internal quotation marks omitted).

In other cases such as Siegmund Strauss and Oakes, the court framed the issue as “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.” Neither test had been met in Bonczar, the court ruled, because the 2018 Appellate Division order denying the plaintiff’s summary judgment motion did not remove the liability issues from the case.

Rather, the parties had a further opportunity to litigate those issues and in fact did so at the jury trial. Accordingly, the court dismissed the appeal from the 2018 order relating to summary judgment, while affirming the 2020 order relating to the jury verdict.

The Potential Aho Pitfall

Under the Aho decision, the right of appeal from a non-final order terminates with the entry of a final judgment. See, e.g., Daniels v. Jerome, 250 A.D.3d 1018 (2d Dept., 2026) (appeal and cross-appeal from non-final summary judgment order dismissed “because the right of direct appeal therefrom terminated with the entry of the judgment in the action”).

The rule in Aho may 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 an appellate court 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.

For example, insofar as appears from the decision in Martell v. Dorchester Apartment Corp., 208 A.D.3d 1183, 173 N.Y.S.3d 876 (Mem) (2d Dept., 2022), the defendants filed a notice of appeal from a non-final order denying their motion for summary judgment. In the meantime, an adverse final judgment was entered in the action, but the defendants did not appeal from it.

Citing 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 it escaped appellate review.

Similarly, the plaintiff in Smith v. Town of Colonie, 100 A.D.3d 1132 (3d Dept., 2012), only appealed from a non-final order granting the defendant’s motion for partial summary judgment, but did not appeal from the subsequent final judgment. The court dismissed the appeal, noting that under Aho “[p]laintiff’s right to appeal from that order terminated upon the entry of the final judgment after trial.”

While the non-final order necessarily affected, and would have been reviewable on an appeal from, the final judgment since it removed legal issues from the case, the order was beyond appellate review because no appeal had been taken from the judgment.

Cases like Martell and Smith underscore that serious consideration should be given to an immediate appeal from a non-final order if there is any doubt as to the applicability of Section 5501(a)(1)’s “necessarily affects” requirement, and the order is one that the losing party definitely wants reviewed.

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Thomas R. Newman is of counsel at Duane Morris. Steven J. Ahmuty, Jr., is a retired partner from Shaub, Ahmuty, Citron & Spratt.