VI. WHAT IS A FINAL DETERMINATION? -- A SYSTEMATIC APPROACH
A. Constitutional Requirement
In civil cases, the New York Constitution (article VI, §§ 3[1] and [2]) mandates only final orders are appealable to the Court of Appeals with the very limited exceptions of:
1. appeals by stipulation for judgment or order absolute recognized in section 3(3);
2. appeals permitted by the Court of Appeals in proceedings by or against a public body or officer allowed by section 3(5);
3. appeals permitted by the Appellate Division on certified questions allowed by section 3(4).
B. Nonfinality
In general, a final order is one that disposes of all the causes of action between the parties and leaves nothing for further judicial intervention apart from mere ministerial matters (Burke v Crosson, 85 NY2d 10, 15 [1995]). Although the definition is simple, identifying the final order is occasionally tricky. Some orders leave nothing pending in the litigation and yet are still deemed nonfinal for purposes of Court of Appeals jurisdiction. In order to understand this apparent anomaly, one must first understand that the critical question for determining finality is whether the order finally determines an action or proceeding, not whether the order leaves further litigation pending. Thus, finality should be viewed as a point along the continuum of litigation. There are orders which clearly come too early along that continuum, such as those administering the course of litigation or disposing of motions for temporary or provisional relief. Likewise, there are orders which come too late along the continuum, such as those seeking enforcement of a previously rendered final order. The following is a logical sequence of questions counsel should ask when evaluating whether a particular Appellate Division order is final for purposes of Court of Appeals jurisdiction.
1. Merits Not Addressed -- Too Early
Does the order merely administer the course of litigation or dispose of a motion for temporary or provisional relief?
- Caceras v Zorbas, lv dismissed 69 NY2d 899 [1987] [discovery from party in a pending action]; Lynn v Jensen Assocs., lv dismissed 64 NY2d 766 [1985] [discovery from nonparty in a pending action]. Compare Matter of Isbrandtsen, lv denied 70 NY2d 616 [1988] [discovery motion not made within a pending action commences a separate special proceeding]. - Avital v Feldman, lv dismissed 87 NY2d 1056 [1996] [order denying a motion to amend a complaint to add a new party]. - Thompson v Whitestone Sav. and Loan Assn., lv dismissed 64 NY2d 610 [1985] [denial of class certification]. - People ex rel. Dunaway v Warden, lv dismissed 87 NY2d 918 [1996] [order denying poor person relief]. - Auer v Power Auth. of State of New York, lv dismissed 62 NY2d 688 [1984] [order granting change of venue]. - Klorman v J. Walter Thompson Co., lv dismissed 61 NY2d 905 [1984] [order addressed to pleadings; complaint dismissed without prejudice to replead]. - Maltby v Harlow Meyer Savage, Inc., lv dismissed 88 NY2d 874 [1996] [order denying motion for temporary restraining order and preliminary injunction]. - Matter of Terrence K., lv dismissed 70 NY2d 951 [1988] [order denying request for a preliminary injunction and a stay]. - Burgess v Burgess, lv dismissed 71 NY2d 889 [1988] [order denying motion for downward modification of temporary support]. - Spillman v City of Rochester, lv dismissed 72 NY2d 909 [1988] [order denying request for a protective order]. - Key Bank of New York v Burgess, lv dismissed 88 NY2d 1064 [1996] [order denying a motion to intervene].
2. Merits Not Addressed -- Too Late
Does the order merely enforce a previous final order? If so, it is nonfinal. However, an order granting a motion to amend a prior final order is considered a new final order to the extent of the amendment (see Karger, § 196, at 104-105).
a. Enforcement
- New York State Assn. of Counties v Axelrod, lv dismissed 87 NY2d 918 [1996] [Appellate Division order denying a motion to enforce the judgment entered in the proceeding]. 30 - Furey v Furey, lv dismissed 89 NY2d 916 [1996] [motion for a money judgment to enforce a provision of the judgment]. An action seeking a judgment for maintenance or permanent support arrears is considered final, notwithstanding its apparent similarity to an enforcement proceeding (Creque v Creque, lv denied 86 NY2d 707[1995]; Kohn v Kohn, lv denied in part 70 NY2d 999 [1988]). Proceedings commenced via petition under the authority of Family Court Act § 454 to enforce a prior determination are treated as separate special proceedings notwithstanding their apparent similarity to enforcement motions made in the context of matrimonial actions in Supreme Court.
b. Contempt Motions
- Matter of Public Emp. Fedn. v Division of Classification and Compensation of New York State Civil Serv. Commn., appeal dismissed 66 NY2d 758 [1985] [order granting or denying motion for finding of contempt with respect to an earlier court order to which contemnor was a party is nonfinal]. Compare Matter of Werlin v Goldberg, lv denied 70 NY2d 615 [1988] [order punishing contempt committed in immediate view and presence of court is reviewable in article 78 proceeding and can result in a final order determining a separate special proceeding].
c. Motions To Amend or Resettle Final Judgments or Orders
- Matter of Kaplan v Werlin, lv dismissed in part & denied in part 87 NY2d 915 [1996] [motion to "correct" judgment denied; Appellate Division affirmed]. - Cox v Cox, lv dismissed 89 NY2d 860 [1996] [motion to amend granted; Appellate Division reversed]. - Smithtown General Hosp. v State Farm Mut. Automobile Ins. Co., lv dismissed 88 NY2d 1065 [1996] [post judgment motion for attorney's fees, when denied, results in nonfinal order since such orders are treated as denials of motions to amend]; but see Loretto v Group W. Cable, Inc., lv denied 71 NY2d 802 [1998] [order denying CPLR 909 post judgment motion for attorney's fees in class actions pursuant to 42 USC § 1983 treated as finally resolving a separate special proceeding]. When motion to amend a final determination is granted, it may create a new final paper (see Matter of Kaplan v Werlin, lv denied 88 NY2d 812 [1996]).
d. Motions To Vacate
- Matter of Babey-Brooke v Ziegner, appeal dismissed 61 NY2d 758 [1984] [order denying motion to vacate a default judgment]. - Jeffs v Janessa, Inc., lv dismissed 88 NY2d 1037 [1996] [order denying motion to restore action to trial calendar after CPLR 3404 dismissal]; Paglia v Agrawal, lv dismissed 69 NY2d 946 [1987] [order denying motion to vacate prior dismissal pursuant to CPLR 3404]. - Brown Cow Farm v Volvo of America Corp., lv dismissed 63 NY2d 605, 770 [1984] [motion to vacate granted; entire action pending]. - Miles v Blue Label Trucking, lv dismissed 89 NY2d 917 [1996] [motion to vacate granted; Appellate Division reversed].
e. Motions for Renewal, Reargument or Leave To Appeal - Robertson v City of New York, appeal dismissed 90 NY2d 844 [1997] [Supreme Court grants renewal and, on renewal, rules for plaintiff; Appellate Division reverses and denies motion to renew; nonfinal even if rationale supporting Appellate Division order denying motion to renew pertains to merits and not to the standards governing renewal motions]. - Campbell v JSB Realty Co., appeal dismissed 64 NY2d 881 [1985] [Appellate Division order denying leave to appeal to Appellate Division]. - Cherchio v Alley, lv dismissed 66 NY2d 604, 914 [1985] [Appellate Division order denying reargument or leave to appeal to Court of Appeals].
3. Merits Addressed -- Remittals for Further Judicial Action
Does the order leave further judicial or quasi-judicial action pending? This category encompasses many nonfinal orders. Counsel should note that the order need not expressly remit for further action; any order which contemplates further judicial or quasi-judicial action is nonfinal.
a. Examples of Remittals
- Glass v Weiner, appeal dismissed 64 NY2d 775 [1985] [for assessment of damages]. - Matter of Donald U., lv dismissed 64 NY2d 603, 775 [1985] [for further "processing" of adoption proceeding]. - Matter of Danon v Department of Fin. of City of New York, appeal dismissed 64 NY2d 601, 885 [1984] [for reaudit]. - Matter of Karaminites v Reid, appeal dismissed 65 NY2d 784 [1985] [for imposition of appropriate penalty]. - Cornell Univ. v Bagnardi, appeal dismissed 65 NY2d 923 [1985] [to Zoning Board for further quasi-judicial action]. - State Communities Aid Assn. v Regan, appeal dismissed 66 NY2d 759 [1985] [for calculation of attorney's fees].
b. Exception -- Remittals for Ministerial Action
Are the further proceedings merely ministerial? (see generally Karger, § 4:10, at 73-77). If so, the order will be considered final. - Matter of Green v Lo Grande, appeal dismissed 61 NY2d 758 [1984] [remittal to Town Board to issue a special use permit not ministerial because conditions could be imposed]. - Hirschfeld v IC Sec., lv dismissed 72 NY2d 841 [1988] [order remitting to Supreme Court for recalculation of damages in breach of contract counterclaim requires further judicial action and is therefore nonfinal]. - Fra-Dee Constr. v Roberts, lv denied 70 NY2d 611 [1987] [order remitting to Commissioner of Labor to reduce punitive interest rate on a back wages determination from 10% to 6% contemplates purely ministerial action and is final].
c. Exception -- Complete Relief Obtained
Although further quasi-judicial action may be contemplated by the order, did the plaintiff/petitioner receive all relief requested? If so, the order will be considered final.
- Matter of Inland Vale Farm Co. v Stergianopolus, 65 NY2d 718, 719 n * [1985] [matter remitted to respondent for the preparation of an environmental impact statement -- the full relief requested. Notwithstanding the remittal, order final].
d. Conditional Orders
A conditional order where the condition has been satisfied may be deemed final where the satisfaction of the condition terminates the litigation.
i. Where an Appellate Division order reverses a Supreme Court judgment and directs a new trial unless the party stipulates to a different amount of damages, the order is nonfinal where the party has not so stipulated (Whitfield v City of New York, lv dismissed in an opinion 90 NY2d 777 [1997]). Note that in analyzing which paper is the final appealable paper in this circumstance (i.e., the stipulation, the judgment entered on the stipulation, or the Appellate Division order itself), strict attention should be paid to the express language of the Appellate Division order (id. at 780- 781).
ii. Where an order grants summary judgment conditioned on payment of money, and payment occurs, order is final (Meisner v Crane, lv denied 70 NY2d 613 [1987]).
iii. Where an order dismisses a complaint if defendant accepts conditions, and it is unclear if conditions were satisfied, order is nonfinal (ECU Trust Reg. Vaduz v Union Bank of Switzerland, lv dismissed 71 NY2d 994 [1988]).
4. Merits Addressed -- Claims Pending
Does the order resolve only some of the claims or counterclaims? To determine whether any claims remain pending, counsel should determine the status of every claim, counterclaim, cross claim or other request for relief pleaded in the action and assure that they have all been finally resolved. 34 - Lane-Weber v Plainedge Union Free School Dist., lv dismissed 87 NY2d 968 [1996] [denial of motion to dismiss complaint; entire action pending]. - Dupuy v Hayner Hoyt, 87 NY2d 1056 [1996] [grant of partial summary judgment leaves other causes of action pending]. - Saunder v Baryshnikov, appeal dismissed 65 NY2d 637 [1985] [counterclaim pending]. - Walden v F.W. Woolworth Co., lv dismissed 72 NY2d 840 [1988] [liability resolved; damages to be established]. - Wallis v Falken-Smith, lv dismissed 72 NY2d 807 [1988] [request for attorneys' fees pending].
C. Exceptions to Nonfinality
Under certain circumstances, an otherwise nonfinal order may nevertheless be appealable pursuant to one of several exceptions to finality.
1. Express Severance
Is there an express severance? An order which expressly severs a pending cause of action will generally be deemed final by the Court of Appeals. However, a severance which does not sever a complete cause of action but merely severs a portion of a cause of action will not be given effect (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1985]; Tauber v Bankers Trust Co., lv dismissed 95 NY2d 848 [2000]; Karger, § 5:6, at 114-117). - Sontag v Sontag, lv dismissed 66 NY2d 554, 555 [1985] [order which purports to sever items of relief not a valid express severance; nonfinal]. - F & G Heating Co. v Board of Educ. of City of New York, lv dismissed 64 NY2d 1109 [1985] [express severance of a portion of a damage claim within a single cause of action ineffective; nonfinal]. - Gair, Gair & Conason, P.C. v Stier, lv denied 69 NY2d 606 [1987] [recognizing express severance]. - Weizenecker v Weizenecker, lv denied 72 NY2d 809 [1988] [order finally disposing of certain causes of action and transferring another cause of action to another court for prosecution deemed to effect an express severance].
2. Implied Severance
Are the pending claims impliedly severable from the decided claims? The doctrine of implied severance is applied only where the causes of action the order or judgment resolves "do not arise out of the same transaction or continuum of facts or out of the same legal relationship as the unresolved causes of action" (Burke v Crosson, 85 NY2d 10,16 [1985]). As this language from Burke suggests, this doctrine is rarely invoked and narrowly construed. Burke expressly rejects the analysis used in cases such as Sirlin Plumbing Co. v Maple Hill Homes (20 NY2d 401 [1967]), Orange & Rockland Utils. v Howard Oil Co. (46 NY2d 880 [1979]) and Ratka v St. Francis Hosp. (44 NY2d 604 [1978]) (Burke, 85 NY2d at 17 n 3). Burke holds that "an order dismissing or granting relief on one or more causes of action arising out of a single contract or series of factually related contracts would not be impliedly severable and would not be deemed final where the other claims or counterclaims derived from the same contract or contracts were left pending" (id. at 16).
3. Party Finality
Are all claims asserted by or against one party decided? Referred to as party finality, this rule is an exception to the general proposition that the entire case must be resolved before resort to the Court of Appeals will be allowed. Simply stated, party finality is present in any order which fully disposes of that party's claims and all claims, including cross claims and third-party claims, against that party, without resolving the entire litigation (see generally Karger, §5:9 at 128-137). - Barile v Kavanaugh, 67 NY2d 392, 395 n 2 [1986] [party finality where separate causes of action are asserted against different sets of defendants and only one cause of action was finally decided]. - We're Assocs. Co. v Cohen, 65 NY2d 148, 149 n 1 [1985] [party finality as to individual defendants although claims remain pending against corporate defendant]. Compare General Instrument Corp. v Florin, lv dismissed 72 NY2d 909 [1988] [no party finality where order terminates claim against individual partners but leaves claims against partnership pending]. - Herbert v Morgan Drive-A-Way, 84 NY2d 836 [1994] [no party finality; although complaint dismissed as to owner and operator defendants, the complaint remained pending against administrator defendant and that 36 defendant's cross claim against owner and operator defendants had not been dismissed]. - Landon v New York Hosp., appeal dismissed in part 65 NY2d 639 [1984] [in a mother's and father's medical malpractice action, six causes of action asserted: two by each of the parents in their own right and two by the father on behalf of the injured infant. The four causes asserted by the parents were dismissed, leaving pending the two causes asserted on behalf of the child. Party finality as to the mother but not as to the father]. Party finality is an exception to the rule that the action or proceeding must be finally determined and there are instances where countervailing policy considerations make invocation of the doctrine unwarranted (see Sunrise Auto Partners, L.P. v H.N. Frankel & Co., 90 NY2d 842 [1997]).
4. Irreparable Injury
Does the doctrine of irreparable injury apply to make an otherwise nonfinal order appealable? The doctrine of irreparable injury will apply to make appealable an otherwise nonfinal order in those rare instances where the order sought to be appealed from directs an irrevocable change in position that will cause immediate irreparable injury (see generally Karger, § 5:2, at 103-109). - Regional Gravel Prods. v Stanton, lv denied in part 71 NY2d 949 [1988] [irreparable injury where order directs transfer of title to real property]. - Matter of Christopher T., lv granted 63 NY2d 601 [1984] [in a proceeding to permanently terminate parental rights, order which authorizes DSS to consent to adoption as to one child and remits for further hearings as to a second child is nonfinal but appealable due to irreparable injury]. - Gardstein v Kemp & Beatley, Inc., mot to dismiss appeal denied 61 NY2d 900 [1984] [order directing corporate dissolution resulting in loss of corporate name and selling off of assets causes irreparable injury]. Compare May v Flowers, lv dismissed 65 NY2d 637 [1985] [order dissolving partnership, expelling certain defendants, and ordering an accounting, but which specifically authorized the business to continue under the same name nonfinal; no irreparable injury]. The irreparable injury doctrine is rarely used, and almost never used where the mere transfer of money is involved (see e.g. Town of Orangetown v Magee, appeal dismissed 86 NY2d 778 [1995]).
D. Separate Special Proceedings
Does the order finally determine a separate special proceeding? Some apparently nonfinal orders that do not finally determine an entire litigation, but do finally determine a separate special proceeding, are final and appealable for purposes of the finality rule (see generally Karger, §§ 5:21-5:28, at 160-190). Some special proceedings are defined as such in the Consolidated Laws (see e.g. Family Court Act arts 4-10). Others have been recognized as such by the Court. Some examples of separate special proceedings follow: - Baker v New York City Health & Hosps. Corp., 36 NY2d 925 [1975] [an order granting or denying a motion pursuant to section 50-e of the General Municipal Law for leave to serve and file a late notice of claim on a municipality is a final order in a special proceeding]. Compare Marabello v City of New York, appeal dismissed 62 NY2d 942 [1984] [order denying application to supplement an original notice of claim pursuant to General Municipal Law § 50-e(6) is nonfinal] and Barrios v City of New York, lv dismissed 100 NY2d 534 [2003] [order granting application to amend a notice of claim is nonfinal even when the application to amend the notice of claim is the first application filed in court]. - Matter of Departmental Disciplinary Comm. for the First Judicial Dept. [Malatesta], lv denied 61 NY2d 601 [1983] [an order granting or denying a motion to quash a subpoena which is not issued in a pending proceeding, but rather precedes any judicial activity, commences a separate special proceeding]. Compare Weissman v 4 West 16th St. Sponsor Corp., appeal dismissed 68 NY2d 807 [1986] [order in pending proceeding is nonfinal]. - Matter of Codey [Capital Cities, Am. Broadcasting Corp.], 82 NY2d 521, 526-527 [1993] [a CPL 640.10 application by a party to a criminal proceeding in one state to compel the presence of a witness residing in another state or to compel the production of evidence located in another state commences a separate special proceeding on civil side of Court's docket]. - Matter of Board of Educ. of City of Auburn [Auburn Teachers Assn.], lv denied as unnecessary 38 NY2d 740 [1975] [order denying motion to stay arbitration is a final order resolving a separate special proceeding]; see also Flanagan v Prudential-Bache Sec., 67 NY2d 500, 505 n * [1986] [order granting or denying a motion to compel arbitration is a final order resolving a separate special proceeding]; CPLR 7503. However, an order which merely grants a motion to stay an action pending arbitration does not finally determine the action within the meaning of the Constitution (see Kushlin v Bialer, 26 NY2d 748 [1970]). 38 - Matter of Vilcek v Biochem, Inc., lv denied in part 70 NY2d 728 [1987] [motion to disqualify an arbitrator commences a separate special proceeding]. - Miller v Macri, lv denied 70 NY2d 610 [1987] [application for provisional relief in an arbitrable controversy commences a separate special proceeding].