Appeals to the Appellate Division as of Right from the Supreme Court
An appeal may be taken to the Appellate Division as a matter of right, in an action originating in the Supreme Court1 from any final or interlocutory judgment, except one entered after an order of the Appellate Division which disposes of all of the issues in the action.2 An appeal may also be taken to the Appellate Division, as of right, in an action originating in the Supreme Court from an order,3 where the motion the order decided was made on notice and the order grants, refuses, continues, or modifies a provisional remedy4 or settles, grants or refuses an application to resettle a transcript or statement on appeal,5 or grants or refuses a new trial, except where specific questions of fact arising upon the issues in an action triable by the court have been tried by a jury, pursuant to an order for that purpose, and the order grants or refuses a new trial upon the merits,6 or involves some part of the merits,7 or affects a substantial right,8 or in effect determines the action and prevents a judgment from which an appeal might be taken,9 or determines a statutory provision of the state to be unconstitutional, and the determination appears from the reasons given for the decision or is necessarily implied in the decision.10 An appeal may be taken to the Appellate Division as of right in such an action from an order, where the motion it decided was made upon notice, which refuses to vacate or modify a prior order, if the prior order would have been appealable as of right had it decided a motion made on notice.11
3 CPLR §5701(a)(2) does not apply to orders specified in CPLR §5701(b). CPLR §5701(b) provides that an order is not appealable to the Appellate Division as of right where it is made against a body or officer pursuant to Article 78; requires or refuses to require a more definite statement in a pleading; or orders or refuses to order that scandalous or prejudicial matter be stricken from a pleading.
8 CPLR §5701(a)(2)(v); Orders which affect a substantial right: denial of change of venue, Macdonald v. Macdonald, 14 Hun 496 (N.Y. Gen. Term 1878); Order determining motion for temporary alimony, child support, counsel fees, Caplin v. Caplin, 33 A.D.2d 908, 307 N.Y.S.2d 486 (2d Dep't 1970); Order granting or denying motion for summary judgment, Appel v. Root, 18 A.D.2d 686, 236 N.Y.S.2d 5 (2d Dep't 1962), order aff'd, 13 N.Y.2d 748, 241 N.Y.S.2d 870, 191 N.E.2d 920 (1963); Order granting or denying motion for discovery and inspection, Kaplan v. Kaplan, 13 A.D.2d 995, 216 N.Y.S.2d 502 (2d Dep't 1961); Order denying motion for examination before trial, Dulber v. Dulber, 37 A.D.2d 566, 322 N.Y.S.2d 862 (2d Dep't 1971), order aff'd, 29 N.Y.2d 408, 328 N.Y.S.2d 641, 278 N.E.2d 886 (1972). In Enzien v. Enzien, 149 A.D.2d 783, 539 N.Y.S.2d 576 (3d Dep't 1989), the Appellate Division dismissed an appeal from an order of the Supreme Court which denied without prejudice the defendant's motion to establish valuation dates pursuant to Domestic Relations Law §236(B)(4)(6). The order affected no substantial right, since no decision was made by the court as to the valuation dates of marital assets as it deferred the fixing of dates to a later point in the action. The statute requires the court to value assets “as soon as practicable.” In Dowd v. Dowd, 74 A.D.3d 1013, 903 N.Y.S.2d 501 (2d Dep't 2010), the wife appealed from an award of pendente lite maintenance which awarded her only $1,000 per week for 10 months, and $800 per week thereafter, and directed a conference on those branches of her motion which were for an award of interim counsel fees and expert fees. The Appellate Division held that the portion of the order directing a conference did not dispose of those branches of the motion and did not affect a substantial right, and therefore is not appealable as of right (see CPLR 5701(a)(2)(v)). Since leave to appeal therefrom was not granted, it dismissed the appeal from so much of the order as directed a conference on those branches of the wife's motion which were for an award of interim counsel fees and expert fees.
11 CPLR §5701(a)(3); The statute specifically refers to a prior order which “would have been appealable as of right” under CPLR §5701(a)(2). In Nawi v. Dixon, 59 A.D.3d 363, 875 N.Y.S.2d 448 (1st Dep't 2009), the Appellate Division noted that while Supreme Court stated that the father's motion for reargument was denied, the court considered the merits of the underlying motion and the mother's cross motion and adhered to the court's original determination with respect to the underlying motion. Thus, the order was appealable as of right (see CPLR 5701[a][2][viii]).