The Aggrieved Party Under CPLR 5511 - Permissible Appellant
Civil Practice Law and Rules (CPLR) 5511
By J. Douglas Barics
Revised August 2019
In order to have standing to maintain an appeal, the appellant must be the aggrieved party in the order under appellate review. The term aggrieved party is found in CPLR 5511, which provides that only an aggrieved party may be considered a permissible appellant. The statute omits any definition of aggrievement. Given this term is critical to any appellant's ability to appeal, an understanding of what constitutes agrievement is critical.
A review of the legislative history of the CPLR shows a specific definition of aggrievement was intentionally omitted when the CPLR was enacted in 1963. The legislative intent was to let the courts determine what constitutes an aggrieved party. Case law since 1963 has developed into a working definition of aggievement.
Aggrievement is Jurisdictional
The status of being an aggrieved party is fundamental to having standing to appeal. It is so fundamental that it is considered jurisdictional, and the lack of being aggrieved deprives the Appellate Division of its authority to even consider an appeal. Because it is jurisdictional, the court itself has the authority to sua sponte inquire whether a party is truly aggrieved or not, even if no party raised this issue. See Mixon v. TBV, Inc., 76 A.D.3d 144, (2nd Dept., 2010). Leeds v. Leeds, 60 N.Y.2d 641 (1983) (appeal dismissed sua sponte for lack of aggrievement), Wohl v. Wohl, 26 A.D.3d 326, (2nd Dept., 2006) (appeal dismissed sua sponte for lack of aggrievement, remedy was to resettle order or move to vacate default).
Aggrievement defined by the Court of Appeals in Parochial Bus and Mixon
In 1983, the Court of Appeals issued a decision that laid the foundation for a definition of aggrievement. In Parochial Bus Sys. v Board of Educ. of City of N.Y. 60 NY2d 539, the court held that there is no right to appeal if a party obtained a judgment in his or her favor and is not aggrieved. However, if the relief obtained by that party is not complete and that party is still prejudiced in some way, then they are still considered to be aggrieved under CPLR 5511. This definition worked, but did not address whether a party who was granted partial relief could be considered aggrieved.
The definition was further refined in 2010 by the Second Department case of Mixon v. TBV, Inc., 76 A.D.3d 144, which expanded on the holding of Parochial Bus. Mixon provided a succinct two prong test to determine aggrievement. First, a person is aggrieved when they ask for relief, but it is denied in whole or part. Second, a person is aggrieved when someone else asks for relief against him or her, and it is granted in whole or part.
The two prong test will provide clear guidance to most issues surrounding aggrievement.
While the cases of Parochial Bus and Mixon are not the final answer to any question involving aggrievement, they are the foundation of any analysis when the status is in question.
Aggrievement under CPLR 5511 requires an issue to be litigated
Aggrievement from an adverse ruling also requires the underlying issue to have been litigated. Litigated requires participation from the side seeking to appeal, giving each side the opportunity to present their case to the trial court, and specifically requesting or opposing relief. This element goes to the heart of appellate practice; the appeals court is reviewing whether or not the lower court made an error in deciding to favor one party over another, and the absence of being litigated means the lower court did not have to make this determination.
Adverse decisions that grant or deny relief requested from litigated issues give rise to aggrievement. Conversely, an adverse decision from an issue which is not opposed does not give rise to aggrievement. Thus consent orders are not litigated, since the parties, not the court, created the order or judgment. Nor may a defaulting party consider their adverse ruling litigated, since the defaulting party did not participate in the case.
Lack of litigation by a party deprive the appellate division of authority to hear an appeal. Since aggrievement is jurisdictional, and since aggrievement requires litigation, the absence of litigation deprives the appellate court of any authority act. Thus the court is without the power to exercise discretion or make any exception.
Aggrievement requires a ruling in an order or judgment that directly affects a party
A party must be directly affected by a ruling in order to be considered aggrieved. Merely disagreeing with the court's reasoning is not sufficient to give rise to aggrievement under CPLR 5511. See Pramco III, LLC v Partners Trust Bank 52 A.D.3d 1224 (2008). The fact that the court's "decision and order" "contains language or reasoning that [defendant] deems adverse to its interests does not furnish a basis for standing to take an appeal."
For example, an order allowing the plaintiff to add a new defendant is not appealable by the original defendant, since no relief was sought against the original defendant. See Finkelstein v. Lincoln Nat. Corp., 107 A.D.3d 759, 967 N.Y.S.2d 733 (2nd Dept.,2013).
Default orders cannot be appealed
Except for limited circumstances, no appeal lies from a default order. CPLR 5511 specifically provides that a defaulting party may not maintain an appeal.
For a default, the party's remedy is to move the vacate the default under CPLR 5015(a)(1) or CPLR 317, which requires a showing of both excusable default and a meritorious defense.
This motion, which is made on notice, is thus an appealable order under CPLR 5701. Since presumably both sides would participate in this motion, the losing side would be considered aggrieved under CPLR 5511.
If a default is issued after a party appears, but their pleading is struck as a sanctioned due to non compliance with discovery, that party is not in default and an appeal may be taken. See the Court of Appeals in James v. Powell, 19 N.Y.2d 249, which held that an appeal could be taken from the default final order, but that the appeal would be limited to those matters which were subject of contest.
Consent orders cannot be appealed
An order issued on consent is not appealable since the parties agreed upon the order and the court was not called upon to decide which party to rule in favor or against. No appeal lies from a consent order. Matter of Larkin-King v King 159 A.D.2d 626 (N.Y. App. Div. 1990). The remedy is to make a motion or bring a plenary action to vacate the agreement. Baecher v Baecher, 95 A.D.2d 841.
An exception to this rule is if there is an agreement, and the the order or judgment differs from that underlying agreement, the consent order it may be appealed, but only to the extent it differs from the agreement.
When there is a consent to one of several issues and a trial on the remaining issues, the consent does not preclude an appeal on the issues decided by the court. It does preclude an appeal that was settled. For example, in Shifer v. Shifer 27 A.D.3d 549, (2nd Dept. 2006), the parties in a divorce entered into a preliminary conference order that resolved grounds. This order later resulted in dismissing an appeal to the grounds, but did not preclude appellate review on the remaining issues.
Accepting the benefit of a judgment does not waive aggrievement
If a party prevails but is only granted partial relief, accepting the benefit of the partial relief does not affect their status as an aggrieved party. See Cornell v. T. V. Development Corp., 17 N.Y.2d 69, (1966).
In every appeal, aggrievement of the appellant should be reviewed. For the appellant, early review will help insure the appeal can be maintained. For the respondent, the issue of aggrievement can be raised at any time as it is jurisdictional.
The article New York Appeals: The Aggrieved Party Under CPLR 5511 is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at email@example.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com.
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J. Douglas Barics, Esq. – Appellate Attorney in Long Island, New York.