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Appeal from Order denying motion with leave to renew or without prejudice

Appeal from denial of motion with leave to renew or without prejudice
 
The Appellate Division Second Department has held that the denial of a motion without prejudice to renewal is an appealable order.[1] The Third Department has also held that it is an appealable order. [2]  In each of these cases the courts have held that the order “affect[ed] a substantial right” of the parties, making it appealable (citing CPLR 5701[a][2][v]
 
The First Department has held that the  denial of motion with leave to renew or without prejudice to renewal it is not an appealable order where the motion is denied with leave to renew upon proper papers, where the initial submission was palpably improper[3] as has the Fourth Department.[4]

[1] Keller v. Frank P. Eberhard Co., 110 A.D.2d 686, 487 N.Y.S.2d 603 (2d Dep’t 1985)( Although order denying motion without prejudice to renewal is appealable as of right, record presents issues of fact warranting denial of summary judgment at this juncture.); Okin v. White Plains Hosp., 97 A.D.2d 399, 467 N.Y.S.2d 225 (2d Dep’t 1983); Samuels v. Ames Realty Corp., 79 A.D.2d 651, 433 N.Y.S.2d 829 (2d Dep’t 1980);  Ciaffone v. Manhattantown, Inc., 20 A.D.2d 666, 246 N.Y.S.2d 804 (2d Dep't 1964).

[2] Bezio v. New York State Office of Mental Retardation and Developmental Disabilities, 95 A.D.2d 135, 466 N.Y.S.2d 804 (3d Dep't 1983), order rev'd on other grounds, 62 N.Y.2d 921, 479 N.Y.S.2d 6, 467 N.E.2d 890 (1984) Preliminarily, we must determine whether the order denying the motion to dismiss without prejudice to renew is appealable. An appeal may be taken to the Appellate Division as of right if the order of Supreme Court was made upon notice and affects a substantial right (CPLR 5701, subd. [a], par. 2, subpar. [v] ). An order directing a hearing which will prolong resolution of the issues raised on the motion affects a substantial right (Grand Cent. Art Galleries v. *137 Milstein, 89 A.D.2d 178, 454 N.Y.S.2d 839).  Accordingly, the matter is properly before this court.)

[3] Walden v. Nowinski, 63 A.D.2d 586, 404 N.Y.S.2d 635 (1st Dep’t 1978). (Special Term found the papers submitted in support of a motion for summary judgment palpably insufficient and denied the motion with leave to renew upon submission of proper papers. The appropriate remedy is not to appeal to this Court from the exercise of such discretion, but rather to move at Special Term supported by the necessary and proper papers found to be lacking upon the original application.)

[4] Marasco v. Kaplan, 177 A.D.2d 933, 577 N.Y.S.2d 977 (4th Dep’t 1991) (The court … denied, … defendant's motion for indemnification for reasonable attorney's fees in defense of the action without prejudice to renew. “Defendant's cross appeal from that part of the order denying defendant's motion for indemnification for reasonable attorney's fees with leave to renew is not appealable and must be dismissed (see, 10 Carmody-Wait 2d, NY Prac §70:25, at 43). Here the remedy is not to appeal but to renew the motion upon a showing of the reasonable amount of attorney's fees incurred (see, Walden v Nowinski, 63 AD2d 586).”

 
 

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  • Home
  • Recent Decisions
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  • 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
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    • 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
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    • 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
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  • I. Appeals as of Right
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  • 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
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  • 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
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    • Domestic Violence
    • Emergency Court Applications
    • Engagement gifts
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    • Federal Law Divorce Resources (Pension and Social Security)
    • Frequently Asked Questions
    • Grandparent and Non-Parent Visitation
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