Relates to the scope of non-final judgments and orders

This measure would add a new subdivision (e) to CPLR § 5501 in relation to the scope of review of non-final judgment and orders. It also would permit appellate review of a non-final judgment or order that does not "necessarily affect" a final judgment.

This measure is designed to address two problems that arise under current law. First, there is substantial confusion in the case law as to what non-final judgments "necessarily affect" a final judgment. This matter was most recently illustrated by the Court of Appeals' decision in Oakes v Patel, 20 N.Y.3d 633 (2013) where the Court acknowledged that its rulings as to what "necessarily affects" the judgment "may not all be consistent" (Id. at 644) and, in particular, with regard to orders granting or denying the amendment of pleadings, the application of the rule has been "particularly vexing." Adding to the problem, the Court in Oakes overruled cases setting a bright-line standard that orders relat- ing to amendments of pleadings were never orders necessarily affecting a final judgment, leaving the issue to be decided on a case-by-case basis. Id.

This uncertainty in the case law is amply illustrated by two recent articles in the New York Law Journal (see, Thomas R. Newman and Steven J. Ahmuty, Jr., The 'Necessarily Affects' Requirement of CPLR 5501 (NYLJ, Nov. 8, 2012); Thomas F. Gleason, Dangerous Interactions: Inter- locutory Appeals and Judgments (NYLJ, Nov. 19, 2012)).

Under current law, a careful litigant will take an interlocutory appeal of any order where there is a question as to whether that order neces- sarily affects the final judgment. This is true even in cases where it might be more prudent to await the final judgment before taking the appeal, either because the matter will ultimately become moot or because the issue will be more fully developed and would be better understood by the appellate court when the appeal is taken into context of a final order. Nonetheless, the uncertainty underlying what necessarily affects the final judgment prevents the careful litigant from waiting with regard to any such appeal. With this change, parties would preserve the right to appeal all interlocutory orders until appeal from the final judgment.

Eliminating the requirement that an appeal necessarily affect the final judgment would not increase the work load of the appellate court. Indeed, it may well reduce the number of interlocutory appeals since litigants will not be compelled to file an interlocutory appeal on matters that do not or may not affect the final judgment. Once the final

judgment is entered, that appeal could become moot or of little conse- quence and therefore would no longer require the involvement of the appellate court.

The second problem is the result of the Court of Appeals' decision in Matter of Aho, 39 N.Y.2d 241 (1976), in which the court held that an appeal from an interlocutory order immediately terminates with the entry of a final judgment. In certain circumstances, this can eliminate a party's right to appellate review where the non-final order does not "necessarily affect" the final judgment. For example, an order imposing sanctions on an attorney or litigant would not necessarily affect the final judgment, so it would not be subject to review in the context of an appeal from the final judgment. Likewise, an order dismissing a cross-claim or third-party claim for indemnification may not necessarily affect the final judgment and such an appeal would terminate upon final judgment in favor of the plaintiff. Thus, even if an appeal from such an order had been fully briefed and argued, but not decided, at the time of the entry of judgment, appellate review would be foreclosed. Even in the case where the order appealed from necessarily affects the final judg- ment, the party's appeal would terminate upon entry of judgment, result- ing in a tremendous waste of the party's and the court's resources.

This measure would have no fiscal impact on the State. It would take effect immediately and apply to all actions pending on such effective date or commenced on or after such effective date.

2013 Legislative History:

OCA 2013-48 Senate 5076 (Sen. Bonacic) (ref to judiciary)

2012 Legislative History:

OCA 2012-60 Senate 6648 (Sen. Bonacic) (ref to Judiciary)