The CPLR is very liberal in allowing appeals as of right to be taken to the Appellate Division from, inter alia, any final or interlocutory judgment and any order “where the motion it decided was made upon notice” and “involves some part of the merits” or “affects a substantial right.” CPLR §5701(a)(2)(iv) and (v). However, this extremely broad right to appeal is limited by CPLR §5511 and available only to an “aggrieved party” who “may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party.” The requirement of being an aggrieved party is jurisdictional and subject to inquiry by the court sua sponte even if the issue is not raised by the respondent. Matter of Niagara Mohawk Power Corp. v. Green Island Power Auth., 94 N.Y.2d 891 (2000) (appeals dismissed “sua sponte, upon the ground that appellants are not parties aggrieved”).

Usually this presents no problem; the prevailing party, ordinarily, will not be aggrieved by the judgment or order it sought and obtained and, therefore, has neither the need nor right to appeal from it. In those exceptional cases where the prevailing party wishes to appeal, it is necessary to see if the case falls within one of the recognized exceptions to the general rule of non-appealability. The “major exception” allowing a successful party to appeal or cross-appeal from a judgment or order is when the would-be appellant claims to be prejudiced by the judgment or order because it does not grant him or her all of the relief sought in the action or proceeding. Parochial Bus Systems, Inc. v. Board of Education, 60 N.Y.2d 539, 544-45 (1983). This exception would apply, for example, when the successful party has obtained an award of damages that is less than the amount that was sought. Norton & Siegel v. Nolan, 276 N.Y. 392 (1938).

An exception is also made in cases where the judgment or order denies “some affirmative claim or substantial right.” Parochial Bus Systems, 60 N.Y.2d at 545. An illustration is found in Scharlack v. Richmond Memorial Hospital, 127 A.D.2d 580 (2d Dep't 1987), an action to recover damages for medical malpractice where the individual defendants and Richmond Memorial Hospital separately appeal from an order of the Supreme Court which conditionally denied their motions pursuant to CPLR 3126 to strike the plaintiff's complaint for failure to comply with the court's order to provide certain medical authorizations and other discovery. The appeals by the individual defendants were dismissed because they were not aggrieved, having waived their right to appeal from Special Term's order by accepting the medical authorizations and the sanctions imposed by Special Term. The defendant hospital was found to be an aggrieved party “despite the fact that the relief it requested in the alternative, to wit, compelling disclosure, was granted by Special Term. The relief it clearly sought was dismissal of the complaint and not compliance with the prior order, and the denial of so much of its motion as was for dismissal involved a substantial right of the hospital.” Id. at 580-81.

A successful party who has obtained the full relief sought is not aggrieved and has no grounds for appeal or cross appeal, and this is so even if the court's decision or order contains some language, line of reasoning or a particular finding of fact or ruling of law with which the party is dissatisfied. Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 472-73 (1986); T.D. v. New York State Office of Mental Health, 91 N.Y.2d 860, 862 (1997); Benedetti v. Erie County Med. Ctr., 126 A.D.3d 1322, 1323 (4th Dep't 2015); Matter of Hill, 109 A.D.3d 618 (2d Dep't 2013) (“That the Surrogate's Court's order may contain language or reasoning which the mortgagees deem adverse to their interests does not furnish them with a basis for standing to take an appeal from the order”).

In T.D. v. New York State O.M.H., plaintiffs sought to have declared invalid regulations promulgated by defendant New York State Office of Mental Health (OMH), pertaining to experimental medical research on patients or residents of OMH facilities deemed incapable of giving consent. Certain of the challenged regulations promulgated by the Commissioner of OMH were found to be beyond his authority and without the consent of the Commissioner of Health and thus invalid and unenforceable in their entirety and for all purposes, while others failed to provide for adequate notice and review procedures and therefore violated the Due Process Clauses of the New York State Constitution and the 14th Amendment of the U.S. Constitution, and New York's common law as well as Public Health Law and Social Services Law. T.D. v. New York State O.M.H., 228 A.D.2d 95, 128 (1st Dep't 1996), app. dism. 91 N.Y.2d 860, 862 (1997). Since plaintiffs received the complete relief sought, they were not aggrieved. Although the Court of Appeals dismissed the appeal, it took the occasion to admonish the Appellate Division, noting that once it “had concluded that the challenged regulations were invalid because OMH lacked statutory authority to promulgate them, it was unnecessary under the circumstances here presented to prospectively declare the regulations invalid on additional common-law, statutory, and constitutional grounds. In doing so, the Appellate Division issued an inappropriate advisory opinion.” 91 N.Y.2d at 862.

In Matter of Kaplan v. Rohan, 7 N.Y.2d 884 (1959), the State Liquor Authority (SLA) sought to appeal from an order of the Appellate Division, Third Department, which had reversed, on the law, an order of Supreme Court that denied a motion to dismiss the petition in an article 78 proceeding brought to annul the SLA's determination denying petitioners' application for a waiver of, and under, an SLA rule for a restaurant liquor license. The SLA appealed from the order solely with respect to the basis for the reversal—that its rule was invalid and, in view of such invalidity, issues with respect to waiver might not be litigated—and not from the reversal and dismissal of the petition. The Court of Appeals dismissed the SLA's appeal on the ground that appellants are not parties aggrieved.

An otherwise prevailing party does not have a right to appeal simply because it did not prevail on all of the issues raised in the trial court. In Benedetti v. Erie County Med. Ctr., defendant moved to dismiss plaintiff's medical malpractice and wrongful death action on two grounds, plaintiff's failure to comply with conditions precedent to the filing of the lawsuit under Public Authorities Law §3641(1) (e.g., timely notice of claim), and Supreme Court's lack of personal jurisdiction over it. The court granted the motion only on the ground that plaintiff failed to comply with the conditions precedent to this lawsuit, and in its written decision did not address the alternative ground for the motion, lack of personal jurisdiction. The Appellate Division dismissed defendant's appeal saying that “the concept of aggrievement is about whether relief was granted or withheld, and not about the reasons therefor.” Id. at 1323.

In Matter of Zaiac, 279 N.Y. 545, 554 (1939), the petitioner unsuccessfully sought to appeal from a denial of the probate of a nuncupative or oral will made by a soldier in actual military service. The court found that since the petitioner would take under a letter from the decedent to his sister that was probated “just what she would take under the other [oral] will. She could not appeal from a decision in her favor—she was not aggrieved.”

Finally, a question remains whether in cases where the prevailing party is not aggrieved by the order or judgment and may not appeal or cross appeal from it, may that party “nonetheless seek review of an adverse holding rendered below, on the appeal from the final judgment or order brought by the losing party.” Parochial Bus Systems, 60 N.Y.2d at 545. The Court of Appeals answered this question “Yes,” pointing to the broad scope of review under CPLR 5501[a](1) of any interlocutory order or judgment that was “adverse to the respondent” and which “if reversed, would entitle the respondent to prevail in whole or in part on [the] appeal.” The court concluded that this rule “permits a respondent to obtain review of a determination incorrectly rendered below where, otherwise, he might suffer a reversal of the final judgment or order upon some other ground. Hence, the successful party, who is not aggrieved by the judgment or order appealed from and who, therefore, has no right to bring an appeal, is entitled to raise an error made below, for review by the appellate court, as long as that error has been properly preserved and would, if corrected, support a judgment in his favor.” Id., 60 N.Y.2d at 545-46 (emphasis added).

Thomas R. Newman is of counsel to Duane Morris and author of “New York Appellate Practice” (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt.