The Amorphous Concept of Finality in CPLR 5501 Jurisprudence
David B. Saxe discusses a procedural issue that can lead to possible pitfalls: When a pretrial order grants summary judgment in favor of some of the defendants, may the plaintiff wait until the appeal from the final judgment to challenge that order, and may the Appellate Division treat that order as brought up for review in the plaintiff's appeal from the final judgment after trial, dismissing the complaint in its entirety?
March 11, 2015 at 09:20 PM
11 minute read
Appellate practice in New York State courts often contains minefields. Here is one, a procedural issue that came to my attention and seems to me to be neither well understood nor consistently handled. That is, when a pretrial order grants summary judgment in favor of some of the defendants, may the plaintiff wait until the appeal from the final judgment to challenge that order, and may the Appellate Division treat that order as brought up for review in the plaintiff's appeal from the final judgment after trial, dismissing the complaint in its entirety?
This issue came to my attention in an appeal where Supreme Court had granted summary judgment in favor of some defendants but not others. The summary judgment order directed that the complaint be severed and dismissed as against the successful defendants and that judgment be entered in favor of those defendants; however, no such judgment was entered.
The plaintiff proceeded to trial on the claims against the other defendants, and after trial the court dismissed those remaining claims. On the plaintiff's appeal from the final judgment challenging both the pretrial dismissal and the dismissals after trial, those defendants who had been granted summary judgment argued that the plaintiff's appeal must be dismissed as it related to them because that earlier order was “final” as to them and therefore not brought up for review in the appeal from the final judgment, and because those claims had been expressly severed.
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