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:
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).
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 ). 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 ).
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 ; compare Quinn v The Stuart Lakes Club, appeal dismissed 56 NY2d 569  [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 ). 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 ).
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 ).
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 ).
2. An order holding a party in contempt (New York City Tr. Auth. v Lindner, lv dismissed 58 NY2d 796 ).
3. An order denying a party's application for class certification (Karlin v IVF Am., 93 NY2d 282, 290  situation.