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VII. The "Necessarily Affects" Requirement

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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  • 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
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    • 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
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    • 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
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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
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    • Antenuptial and Post Nuptial Agreements
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    • 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
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  • Electronic Filing in Supreme Court Rules and FAQ's
  • Using EDDS Electronic Delivery to Courts
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  • 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
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    • Consultation Fee Payment
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