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The "Necessarily Affects" Requirement of the Court of Appeals

VII. THE “NECESSARILY AFFECTS” REQUIREMENT
 
A. General Overview
 
In accordance with the strong public policy against piecemeal appeals in a single
litigation, nonfinal Appellate Division orders are generally not appealable to the
Court of Appeals, except under certain limited circumstances. Nevertheless,
the correctness of a final determination may often turn on the
correctness of such a nonfinal order, and the appeal from the final
determination would then be pointless if that order could not also be
reviewed. It has accordingly long been the practice in this State to
permit review, on an appeal from a final determination, of any
nonfinal determination necessarily affecting the final determination
which has not previously been reviewed by the appellate court
(Karger, § 9:5, at 297-314). The "necessarily affects" requirement now appears
in several places throughout the CPLR:
 
1. Appealability
 
The "necessarily affects" requirement appears as a limitation on appeals:
Appeals as of Right Directly from Final Trial Court Judgments - CPLR
5601(d)
An appeal as of right may be taken to the Court of Appeals from a
final Appellate Division order or directly from a final trial court
judgment or order where the Appellate Division made an order on a
prior appeal that "necessarily affects" the final determination (see
Section I-A-5 of this outline).
 
b. Motion for Leave To Appeal Directly from a Final Trial Court
Judgment - CPLR 5602(a)(1)(ii)
 
A litigant may seek leave to appeal directly from a final trial court
judgment, where the Appellate Division made an order on a prior
appeal that "necessarily affects" the final determination (see
Section II-C-2 of this outline).
 
2. Reviewability
 
The "necessarily affects" requirement also appears as a limitation on
reviewability. CPLR 5501(a)(1) provides that an appeal from a final
judgment brings up for review any nonfinal judgment or order that
"necessarily affects" the final judgment (see Section V-C-2 of this outline).
 
B. The "Necessarily Affects" Requirement
 
1. As this Court has stated, its "opinions have rarely discussed the meaning
of the expression 'necessarily affects'. . . [and] have never attempted . . . a
generally applicable definition" (Oakes v Patel, 20 NY3d 633, 644 [2013]).
Indeed, it is difficult to distill a rule of general applicability in this area.
Arthur Karger gives a workable definition of the "necessarily affects"
requirement. According to Karger, a nonfinal order “necessarily affects” a
final determination “if the result of reversing that order would necessarily
be to require a reversal or modification of the final determination” and
“there shall have been no further opportunity during the litigation to raise
again the questions decided by the nonfinal order” (Karger, § 9:5, at 304-
305, 311; see also Cohen and Karger, Powers of the Court of Appeals, §
79, at 340).
 
2. A prior nonfinal Appellate Division order cannot necessarily affect a final
judgment or order unless it is issued in the same proceeding (Town of
Oyster Bay v Preco Chem. Corp., lv dismissed 58 NY2d 1066 [1983]).
 
3. For a helpful discussion of the types of orders that necessarily affect
subsequent orders, see Karger, § 9:5, at 297-314; Siegel, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5501:4,
at 18; 12 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 5501.05-5501.08.
 
C. Examples of Orders That Necessarily Affect Final Judgments
 
1. An order denying defendant's motion for summary judgment to dismiss
complaint which establishes a law issue in the case (GIT Indus. v Rose,
mot to dismiss appeal denied 60 NY2d 631 [1983]; compare Quinn v The
Stuart Lakes Club, appeal dismissed 56 NY2d 569 [1981] [order denying
summary judgment does not necessarily affect final judgment when the
Appellate Division did not foreclose the possibility of summary relief on
expanded record]).
 
2. An order granting a new trial, but restricting the scope of the issues
involved in the retrial (Kenford Co. v County of Erie, mot to dismiss appeal
denied 72 NY2d 939 [1988]). However, an order granting a new trial of
the whole case, thereby permitting every question raised in the first trial to
be raised in the new trial, does not "necessarily affect" the final judgment
rendered after retrial (Atkinson v County of Oneida, mot to dismiss appeal
granted 57 NY2d 1044 [1982]).
 
3. An order granting a motion to dismiss counterclaims and third-party claims
pleaded with the answer, for failure to state a cause of action (Siegmund
Strauss, Inc. v 149th Realty Corp., 20 NY3d 37, 42-43 [2012]).
 
4. An order granting or denying a motion to amend a pleading to include a
new cause of action or defense (Oakes, 20 NY3d at 644-645).
 
D. Examples of Nonfinal Orders That Do Not Necessarily Affect Final Judgments
 
1. An order which denies a party the right to include certain materials in the
record on appeal (Kasachkoff v City of New York, mot to dismiss appeal
granted in part 67 NY2d 645 [1986]).
 
2. An order holding a party in contempt (New York City Tr. Auth. v Lindner, lv
dismissed 58 NY2d 796 [1983]).
 
3. An order denying a party's application for class certification (Karlin v IVF
Am., 93 NY2d 282, 290 [1999]
situation.
 
 
Reprinted from The New York Court Of Appeals Civil Jurisdiction And Practice Outline, September 2020, See  https://www.nycourts.gov/ctappS/forms/civiloutline.pdf  [Last accessed August 21, 2021]
 
 

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  • Recent Decisions & Articles
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    • Articles Published in NYSBA Family Law Review and Journal
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    • Recent International Child Abduction Cases
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    • Child Abuse & Prevention Articles
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  • Divorce Information
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    • Child Custody, Visitation (Parental Access) & Parental Alienation
    • Child Support
    • Counsel Fee Awards
    • Degrees & Licenses
    • Emergency Court Applications
    • Enforcement of Judgments & Orders
    • Equitable Distribution of Marital Property
    • Equitable Distribution Law for Trial Counsel
    • Equitable Distribution Decisions Chart to January 1, 2023
    • Exclusive Occupancy of Marital Home
    • Frequently Asked Questions About Marriage, Divorce, Separation and Custody
    • Grounds for Divorce
    • Legal Fees, Liens & Sanctions
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    • Maintenance and Child Support New York Court System Tools
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    • Motion Practice
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    • Orders of Protection
    • Qualified Domestic Relations Orders
    • Retirement Benefits
    • Right to Counsel in Matrimonial Action
    • Role of the Attorney for the Child
    • Special Relief (life, health, accident, medical and dental insurance)
    • Social Security Benefits for Divorced Spouses
    • Table of Effective dates of Revisions to Domestic Relations Law §§ 236, 237, and 240
    • Trial and Trial Testimony
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    • Trial of a Divorce and Custody Action Website
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    • Uniform Child Custody Jurisdiction & Enforcement Act Overview
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  • Appellate Practice
    • Important Practice Updates from the Appellate Divisions
    • Instructions for taking an Appeal to the Appellate Division
    • Taking an Appeal from Supreme Court under NYCSEF
    • Who is served with the notice of appeal?
    • Registration and Consent to Efiling by Respondents
    • 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
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    • Appeals : Understanding the Support Magistrate Objection Process
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    • What must be in the Reproduced Full Record
    • What is the Judgment-roll?
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    • What must be in Briefs
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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
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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
    • Electronic filing (e-filing): First Department New and Amended Local Rules
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    • Appealability and Reviewability in the Court of Appeals
    • What is a Final Determination appealable to Court of Appeals?
    • The "Necessarily Affects" Requirement of the Court of Appeals
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  • Trial of a Divorce and Custody Action
  • ​New York Court System Links for Lawyers
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  • Electronic Filing in Supreme Court Rules and FAQ's
  • Removal of NYCSEF Consent 22 NYCRR 202.16-c
  • Sending Documents to the Court Using EDDS
  • Family Court Official Forms
  • New York Courts Case Search Page for E-filed Case Files
  • New York Court System Site Map
  • New York Court Websites and Decisions
  • International Child Abduction Laws and Information
  • Hague International Child Abduction Convention cases from 2011 to date.
  • Table of Reported and Unreported Hague Convention Cases from 1988 until 2010
  • Who we are
  • Joel R. Brandes Curriculum vitae
  • Make an Appointment for a Consultation
  • Subscribe to Bits and Bytes™
  • Terms of Use Privacy Policy
  • Consultation Fee Payment
  • Untitled
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