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    • Preserving the Right to Appeal
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    • Appeals to the Appellate Division as of Right from the Supreme Court
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    • Standards of Appellate Review in Matrimonial Actions
    • Standard of Review— Appellate review of Custody Determinations
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    • Standards of Review : Fugative disentitlement doctrine in custody and child support appealsw Page
    • Mandatory Electronic filing (e-filing): First Department
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  • How to take an Appeal to the Court of Appeals
  • I. Appeals as of Right
  • II. Motions for Leave to Appeal
  • III. Guidelines for Preparing a Motion for Leave to AppeaNew Page
  • IV. Rule 500.11 Review Aternate Procedure for Selected Appeals
  • V. Appealability and Reviewability
  • VI. What is a Final Determination
  • VII. The "Necessarily Affects" Requirement
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    • Grounds for Divorce
    • Maintenance Awards until 2016
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    • Spousal Support Awards
    • Table of Effective dates of Revisions to Domestic Relations Law §§ 236, 237, and 240
    • Timetable For Service of Motion Papers
    • Uniform Child Custody Jurisdiction & Enforcement Act
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    • Antenuptial and Post Nuptial Agreements
    • Child Abuse & Prevention
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    • Child Support
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    • Child Visitation Supervisors
    • Degrees & Licenses
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    • Emergency Court Applications
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    • Family Court Proceedings
    • Federal Law Divorce Resources (Pension and Social Security)
    • Frequently Asked Questions
    • Grandparent and Non-Parent Visitation
    • Grounds for Divorce
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    • Valuation Aids
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Appeals to the Appellate  Division as of Right from the Supreme Court

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
 
 
Endnotes
 
1 CPLR 5701(a).

2 CPLR 5701(a)(1).

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.

4 CPLR 5701(a)(2)(i).

5 CPLR 5701(a)(2)(ii).

6 CPLR 5701(a)(2)(iii).

7 CPLR 5701(a)(2)(iv).

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.

9 CPLR 5701(a)(2)(vi).

10 CPLR 5701(a)(2)(vii).

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]).

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  • Home
  • Recent Decisions
  • Recent Legislation and Rules
  • Appeals to the Appellate Divison
    • Instructions for taking an Appeal to the Appellate Division
    • Who is served with the notice of appeal?
    • Registration and Consent to Efiling by Respondents Within 20 days of being served the notification of docket number
    • Preserving the Right to Appeal
    • Appellate Division is Single Statewide Court
    • Appeals to the Appellate Division as of Right from the Supreme Court
    • Permissible Appellant—“Aggrieved party” and Mootness doctrine
    • Permissible Appellant - Appealable Judgment or Order
    • Permissible Appellant - Appeal from Order denying motion with leave to renew or without prejudice
    • Appeals : Appellate Review of Non-final Orders in Matrimonial Actions
    • Appeals : Fundamental and Harmless Error
    • Appeals : Matrimonial Presumptions and the Burden of Proof
    • Appeals : Stare Decisis, Precedent and Dicta
    • Appeals : Understanding the Support Magistrate Objection Process
    • Appeals to the Appellate Division from Family Court
    • Perfecting the Appeal to the Appellate Division - Methods
    • Perfecting the Appeal to the Appellate Division - Appellate Division Bound by Record
    • Perfecting the Appeal to the Appellate Division - Order and Settle the Transcript
    • Method of Settlement of the Transcript
    • Appeals to Appellate Division from Supreme Court by permission
    • Form of Record and Briefs - Parties, Docket Number, Method of Reproduction
    • ​Form of Briefs and Appendices - CPLR
    • What must be in the Reproduced Full Record
    • What is the Judgment-roll?
    • What must be in the Appendix.
    • What must be in Briefs
    • Time, number and manner of filing of records, appendices and briefs
    • Cross appeals - Briefing Schedule, Joint Record, Content of Briefs, Time for Service
    • Extension of time to perfect appeal
    • Concurrent appeals, Appeals from a single order or judgment. Consolidation of Appeals.
    • First Department Requirement of note of issue
    • Stay of Enforcement of Order or Judgment Pending Appeal
    • Practice in the Appellate Division: What Laws Govern
    • Practice Rules of the Appellate Divison: Joint & Local Rules
    • Practice in the Appellate Division First Department New and Amended Local Rules June 25, 2021
    • Practice in the Appellate Division, First Department, Frequently asked questions
    • Practice in the Appellate Divison: Motions in the First Department
    • Practice in the Appellate Divison: Motions in the Second Department
    • Practice in the Appellate Division: Motions in the Third Department
    • Practice In The Appellate Division:Motions in the Fourth Department
    • Instructions for Taking an Appeal Frequently Asked Questions
    • Instructions for Perfecting an Appeal to the Appellate Division
    • Instructions to Perfect an Appeal in the Third Department
    • Instructions to perfect an appeal in the Fourth Department
    • Appellate Division Fourth Department Q & A
    • Universal E-filing in the Fourth Department
    • Standards of Appellate Review in Matrimonial Actions
    • Standard of Review— Appellate review of Custody Determinations
    • Standard of Review of Custody Determinations - Effect of Changed Circumstances During Pendency of Appeal
    • Standards of Review : Fugative disentitlement doctrine in custody and child support appealsw Page
    • Mandatory Electronic filing (e-filing): First Department
    • Electronic filing (e-filing): First Department Digital submission in Non-Efiled Matters - June 1, 2020
    • Electronic filing (e-filing): First Department New and Amended Local Rules Updated June 25, 2021
    • Electronic filing (e-filing): First Department Formatting Specifications
    • Electronic filing (e-filing): First Department Frequently Asked Questions
    • Electronic filing (e-filing): Second Department Technical Guidelines
    • Mandatory Electronic filing (e-filing): Second Department
    • Electronic filing (e-filing): First Department Motions Frequently Asked Questions
    • Electronic filing (e-filing): Second Department - Motions -22 NYCRR 670.4 (d)
    • Electronic filing (e-filing): Third Department - Digital Copies - 22 NYCRR 850.4 (a)
    • Electronic filing (e-filing): Third Department Motion FAQs
    • Mandatory Electronic filing (e-filing): Fourth Department
    • Electronic filing (e-filing): Fourth Department Motion FAQS
    • Electronic filing Authorization in matrimonial actions
    • E-filing Rules and Forms of the Appellate Division
    • Joel R. Brandes Reported Appeals
  • Court of Appeals Rules of Practice
  • How to take an Appeal to the Court of Appeals
  • I. Appeals as of Right
  • II. Motions for Leave to Appeal
  • III. Guidelines for Preparing a Motion for Leave to AppeaNew Page
  • IV. Rule 500.11 Review Aternate Procedure for Selected Appeals
  • V. Appealability and Reviewability
  • VI. What is a Final Determination
  • VII. The "Necessarily Affects" Requirement
  • Filing of record material and briefs in normal course appeals and required copies
  • Contents of Records, appendices and exhibits in normal course appeals
  • Content and form of Briefs in normal course appeals
  • Civil and Criminal Appeals Frequently Asked Questions
  • Civil Motions Frequently Asked Questions
  • Court-Pass - Digital Filing Frequently Asked Questions
  • Court of Appeals Portal for uploading companion digital submissions
  • Court of Appeals Court Pass Public Access and Search
  • New York Divorce Law
    • Agreements Before & During Marriage
    • Custody & Visitation
    • Child Support Awards
    • Counsel Fee Awards
    • Enforcement of Judgments & Orders
    • Equitable Distribution
    • Equitable Distribution Law for Trial Counsel
    • Equitable Distribution Decisions Chart
    • Exclusive Occupancy of Marital Home
    • Grounds for Divorce
    • Maintenance Awards until 2016
    • Maintenance Awards after January 22, 2016
    • Modification of Maintenance and Child Support Orders and Judgments
    • Orders of Protection
    • Special Relief - Insurance
    • Spousal Support Awards
    • Table of Effective dates of Revisions to Domestic Relations Law §§ 236, 237, and 240
    • Timetable For Service of Motion Papers
    • Uniform Child Custody Jurisdiction & Enforcement Act
  • Additional Articles and Information about New York Divorce & Family Law
    • Adoption Information
    • Antenuptial and Post Nuptial Agreements
    • Child Abuse & Prevention
    • Child Custody & Parental Alienation Information
    • Child Support
    • Common Law Marriage
    • Child Visitation Supervisors
    • Degrees & Licenses
    • Domestic Violence
    • Emergency Court Applications
    • Engagement gifts
    • Evidence Law
    • Family Court Proceedings
    • Federal Law Divorce Resources (Pension and Social Security)
    • Frequently Asked Questions
    • Grandparent and Non-Parent Visitation
    • Grounds for Divorce
    • Legal Fees, Liens & Sanctions
    • Litigation & Procedure
    • Maintenance and Child Support New York Court System Tools
    • Maintenance, Special Relief & Spousal Support
    • Marital Property and Property Distribution
    • New York Motion Practice
    • Professional Conduct
    • Retirement Benefits
    • Questions about Income Tax
    • Right to Counsel in Matrimonial Action
    • Role of the Attorney for the Child
    • Valuation Aids
  • ​New York Court System Links for Lawyers
  • New York Court Rules
  • New York Court Websites and Decisions
  • Electronic Filing in Supreme Court Rules and FAQ's
  • Using EDDS Electronic Delivery to Courts
  • New York Courts Case Search Page for E-filed Case Files
  • New York Court System Site Map
  • Family Court Official Forms
  • International Child Abduction Remedies
    • International Child Abduction
    • Hague International Child Abduction Convention cases from 2011 to date.
    • Hague international Child Abduction Table of Reported and Unreported Cases from 1988 until 2010
  • Site Map of The Law Firm of Joel R. Brandes PC website
  • Make an Appointment for a Consultation
    • Consultation Fee Payment
  • Joel R. Brandes Curriculum vitae
  • Subscribe to our newsletter
  • About Us
  • Terms of Use and Privacy Policy