The Appealable Paper under CPLR 5512
The necessity of a written order or judgment
By J. Douglas Barics
Revised August 2019
1. The Appealable Paper
Not every judicial determination may be appealed. Those that can are called appealable papers, while those that can't are called non appealable papers.
2. The Statutory Language of CPLR 5512
The term "Appealable Paper" is found in CPLR 5512(a), which provides the following:
Appealable paper. An initial appeal shall be taken from the judgment or order of the court of original instance and an appeal seeking review of an appellate determination shall be taken from the order entered in the office of the clerk of the court whose order is sought to be reviewed. If a timely appeal is taken from a judgment or order other than that specified in the last sentence and no prejudice results therefrom and the proper paper is furnished to the court to which the appeal is taken, the appeal shall be deemed taken from the proper judgment or order.
Breaking this statute down, it each section of it provides the following:
a. An initial appeal shall be taken from the judgment or order of the court of original instance…:
This provision establishes that an appeal may only be taken from orders or judgments from courts of original instance. Thus, decisions themselves are not appealable, nor are rulings or verdicts. Reports issued by referees who presided over a trial are not appealable either. Appeals from reports must first wind its way through the trial court and becomes incorporated into a judgment before that judgment and the underlying report can be appealed.
Courts of original instance are trial level courts, such as Supreme, Surrogate's, Criminal, or Family Court. The requirement that the appealable order be a judgment or order applies only to trial level court determinations.
b. [A]n appeal seeking review of appellate determination …
If an appeal is taken from an appellate determination, there is no requirement that it be in the form of a judgment or order.
c. [S]hall be taken from the ordered entered in the office of the clerk
This provision requires that the order being appealed is taken from the order that was entered with the clerk.
This provision is designed to limit appeals to finalized orders or judgments. When a court issues an order or judgment, it may contain small errors, which may be corrected. Once the order or judgment is issued in final form, it is then sent to the clerk, where it is stamped with the date of entry. By requiring entered order to be used as one of the conditions to taking an appeal, the chances are reduced that an appellate court will be needed to correct small but critical errors. Moreover, it reduces the chance of having multiple appeals taken from different versions of the same order or judgment.
d. If a timely appeal is taken from a judgment or order other than that specified in the last sentence and no prejudice results therefrom and the proper paper is furnished to the court to which the appeal is taken, the appeal shall be deemed taken from the proper judgment or order.
If the appeal is taken from the wrong paper, and provided that appellate court jurisdiction is obtained, any errors in taking the appeal from the wrong paper may be cured and the appeal may proceed, provided if there is no prejudice. If so, the appeal shall be deemed to be taken from the proper paper. CPLR 5520 allows the Appellate Division to cure certain defects and errors.
3. Limits on Appealable Orders imposed by Statute
When the order or judgment being appealed is the final order issued, there is generally little question as to whether or not it an appealable paper. See CPLR. 5701(a). But when interlocutory (non final) orders are issued, or if there is ongoing litigation that may alter the disposition of an appealable order, the procedural roadmap is less clear.
An appeal must be made from an appealable order as set forth in CPLR 5512, and further defined in CPLR 5701, 5702, or 5703, which creates three categories of orders – orders which may be appealed as of right, orders which may be appealed if permission is granted, and orders which may not be appealed. Non appealable orders may require additional trial level litigation before an appeal may be taken.
a. Appeals from Supreme Court
CPLR 5701(a) defines which orders are appealable as of right. These orders include (a) a final or non final order which disposes of all issues, (b) an order resulting from a motion made on notice which grants or denies a provisional remedy, an order relating to settling transcripts for an appeal, an order granting or denying a new trial, an order that involves some part of the merits, an order that affects a substantial right, an order that disposes of all issues and prevents an appealable judgment from being issued, determines the constitutionality of a statute, grants a motion to reargue, or grants or denies a motion to renew, and (c) from an order arising from a motion made on notice, which refuses to modify or vacate a prior order, if the prior order would have otherwise been appealable had it been made on notice.
If an order is not appealable as of right under CPLR 5701(a), the motion may still be appealed under CPLR 5701(c), which allows an appeal by permission from either the trial court or the Appellate Division.
b. Appeals from the Family Court
Under CPLR 5702, appeals from Family Court are governed by the Family Court Act. FCA Section 1111 provides that appeals from the Family Court may be made in the appropriate Appellate Division. FCA Section 1112 provides that appeals as of right may taken from a final order of disposition. Any other order requires leave to appeal from the Appellate Division.
c. Appeals from the Criminal Court
Under CPLR 5702, appeals from Criminal Court are governed by the Criminal Procedure Law. Section 450 of the CPL defines which orders are appealable as of right, and which are by permission. CPL 460
d. Appeals from the Surrogate's Court
Appeals from the Surrogate's Court are governed CPLR 5702, which defers to the SCPA Section 2701. This provision defers to the rules set forth in CPLR 5701, but substitutes the terms used in the Surrogate's Court for those used in Supreme Court.
e. Appeals from other Courts
For City Courts, Civil Court and Justice Courts, the statute authorizing these courts are nearly identical with respect to appeals. Article 17 of the respective acts governs appeals, and each court may be appealed to the appropriate appellate division unless the rules state an appeal is to be taken in the appellate term.
4. Non Appealable Orders
If an order is not appealable, a remedy will often exist at the trial level, or additional steps need to be taken to create an appealable order.
a. Decisions
A decision is not appealable. It must first be reduced to a judgment, and that judgment may be appealed. However, a decision and order is generally appealable, as it is considered an order.
An appeal from a decision will almost always be dismissed, but in rare instances, it can be treated as a premature appeal from the judgment which arises from the decision, provided a motion is made under CPLR 5520.
b. Default
A party who defaults may not appeal the default judgment pursuant to CPLR 5511. A motion must be made to vacate the default judgment, and the decision and order from that motion may be appealed.
c. Family Court Support Magistrates
No appeal lies from a support order issued by a Family Support Magistrate. The first step in appealing an adverse decision from a Support Magistrate is to file objections pursuant to FCA 439(e). A Family Court judge will then issue a decision and order, and it is this order which may be appealed. An appeal directly from an order issued by a support magistrate will be dismissed. See Feliz v Rojas, 21 A.D.3d 373 (2005).
d. Referees
A trial decision issued by a referee will ultimately be appealable, but the road to the Appellate Division will depend on the order referring the matter before a referee. A hear and determine order effectively makes the referee a judge for that trial only, and the decision may be appealed once its reduced to a judgment. However, if the order of referral is to hear and report, the referee's trial decision must then go before a Supreme Court justice who will either confirm or deny the report, in whole or in part. That decision, and by reference the report, must then be reduced to a judgment, and the right to appeal lies from that judgment.
4. Examples of Appealable and Non Appealable Orders
Example 1:
Following a trial, a court issues a decision. There is no appeal from that decision, it first must be reduced to a judgment and entered into the clerk's office. That judgment is the appealable paper which may be appealed.
Example 2:
Following a motion made on notice, the court issues a decision and order. This may be appealed if it is written as an order and not a decision. (see example 3)
Example 3:
Following a motion made on notice, the court issues a decision that concludes with "submit order on notice" No appeal lies from this determination, as it is not the final paper. The order submitted on notice would be the appealable paper.
Example 4:
A judge makes a ruling on the record. This ruling is not appealable.
Example 5:
A judge issues a ruling on the record and the transcripts are "so ordered." This order is appealable.
Example 6:
A motion is made for summary judgment on notice, and the motion is granted. The order arising from this motion is appealable. However, if a final judgment, which incorporates the summary judgment order is issued, the original order is no longer an appealable paper, as a final judgment terminates all appeals from non final judgments. See Matter of Aho, 39 N.Y.2d 241. (Court of Appeals 1976) . In that case, the final judgment must be appealed, and the appeal from the interlocutory order incorporated into that appeal. However, if the final judgment is not appealed, the Court has the discretion to treat the original appeal as a premature appeal under CPLR 5520, or it may be necessary to file a second appeal of the final judgment.
About J. Douglas Barics
J. Douglas Barics is an appeals lawyer located in Commack NY who regularly represents individuals in appeals.
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