An appellant must satisfy three jurisdictional predicates before the merits may be reviewed: Aggrievement [CPLR 5511]; Appealable Paper [CPLR 5512] and Timeliness [CPLR 5513]. The first sentence in CPLR 5511, “An aggrieved party or a person substituted for him may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party,” and its basic implications are generally well known.

The root of appellate jurisdiction is by way of an aggrieved person. Burmester v O'Brien, 166 AD 932 [2d Dept 1915]. Aggrievement is jurisdictional and subject to the court's threshold review, sua sponte first time on appeal. Klinge v. Ithaca College, 235 A.D.2d 724 [3rd Dept 1997]; Glickman v. Sami, 146 A.D.2d 671 [2nd Dept 1989].

Aggrievement, Two-Tier Test

Aggrievement occurs when requested relief is denied in whole or in part or when someone demands relief against another, who opposed the application, and the relief is granted in whole or in part. Mixon v. TBV, Inc., 76 A.D.3d 144 (2nd Dept 2010). A party is not aggrieved by an order which does not grant relief the party did not request. Spielman v Mehraban, 105 AD3d 943 [2d Dept 2013]. Incomplete relief to the successful party may include a specific finding at trial that might prejudice the party in a future proceeding by way of collateral estoppel. Feldman v. Planning Bd. of Town of Rochester, 99 A.D.3d 1161 [3rd Dept 2012].

Aggrievement requires an existing right, a direct interest in the controversy. A remote or contingent interest does not give the right to appeal. In re Landis, 114 A.D.3d 458 [1st Dept 2014]; Application of DeLong, 89 AD2d 368 [4th Dept 1982]. Disappointment or even having been deprived of a financial benefit does not, without more, make that party aggrieved. Thymann v AFG Mgt., 112 AD3d 455 [1st Dept 2013].

A technical nonparty may have standing to prosecute an appeal, even absent a motion for leave to intervene, a notice of appearance, answer, or motion extending the time to answer (CPLR 320, 1003, 1012, 1013) where it is “expressly bound” by the order under review. Stewart v Stewart, 118 AD2d 455 [1st Dept 1986]; Buller v Giorno, 40 AD3d 316 [1st Dept 2007]; Brady v Ottaway Newspapers, Inc., 97 AD2d 451 [2d Dept 1983], affd, 63 NY2d 1031 [1984]; Petroski v Petroski, 6 AD3d 1194 [4th Dept 2004].

An intervenor becomes a party to the underlying proceeding for all purposes, including aggrievement. Dolomite Products Co., Inc. v Town of Ballston, 151 AD3d 1328 [3d Dept 2017].

The children, in Kessler v Fancher, 112 AD3d 1323 [4th Dept 2013], were held not aggrieved by orders that dismissed petitions filed by one parent alleging violations of custody or seeking personal orders of protection against the other parent. In In re Alexander Z., 151 AD3d 421 [1st Dept 2017], the children were held not aggrieved thus barring an appeal from findings of neglect against their mother. In re Geovany S.,143 AD3d 578 [1st Dept 2016], held that children were not aggrieved by the finding of their derivative neglect by respondent. Gevonay and Alexander Z. are counterintuitive because the children, in both cases, were the direct victims of the neglect and no one more could have had a greater direct interest or been more aggrieved.

In Valenson v Kenyon, 80 AD3d 799 [3d Dept 2011], the father's parents had physical custody of the child. The father moved to modify the order. Family Court awarded, inter alia, joint legal custody to the father and the grandmother, with primary physical custody remaining with the grandmother. The mother's appeal was dismissed because she was not aggrieved. She was not a custodial parent under the prior order, she did not seek to change the prior order, and Family Court's resolution did not alter her status or affect her legal rights; thus, her direct interests were not affected. Her status as the mother and a party to the proceedings, without more, did not establish her aggrievement, accordingly, she lacked standing to appeal.

The Court's Reasoning, Adverse Language

Aggrievement does not hinge upon a court's reasons underpinning why relief was granted or denied. Dolomite Products Co., Inc. v Town of Ballston, 151 AD3d 1328 [3d Dept 2017]; Brown v Condzal, 137 AD3d 667 [1st Dept 2016]. Not the words selected by the writing judge, but the action taken by the court is what is operative and significant. Switzer v Merchants Mut. Cas. Co., 2 NY2d 575 [1957]; Wells Fargo Bank, NA v Ostiguy, 119 AD3d 1266 [3d Dept 2014]. An appellant who received all the relief it requested is not aggrieved, even though the court may have made some finding of fact or ruling of law with which the appellant is dissatisfied. Benedetti v Erie County Med. Ctr. Corp., 126 AD3d 1322 [4th Dept 2015].

Where multiple grounds for relief are asserted, receipt of a favorable judgment or order does not render the prevailing party aggrieved as to the other grounds. Held v New York State Workers' Compensation Bd., 58 AD3d 971 [3d Dept 2009].

Consent Orders, Failure to Oppose

A person who consents or fails to oppose relief requested by another has acquiesced in that relief and is not aggrieved. Mixon v TBV, Inc., 76 AD3d 144, n., 2, [2d Dept 2010]. A stipulation reducing a damages award does not render the party aggrieved. Zhagnay v Royal Realty Co., 87 NY2d 954 [1996]; Nunez v City of New York, 85 AD3d 885 [2d Dept 2011]. An appeal from a judgment entered on consent lies to the extent that it differs from the consent. Hatsis v. Hatsis, 122 A.D.2d 111 [2nd Dept 1986].

In Matter of Dah'Marii G., 156 AD3d 1479 [4th Dept 2017], the mother never moved to vacate the finding of neglect or to withdraw her consent to the order, her contention that her consent was not knowing, intelligent, and voluntary could not be appealed.

Relief to Intertwined Nonappealing Parties

Hecht v. City of New York, 60 N.Y.2d 57 [1983], addressed the limits of an appellate court's scope of review of a judgment rendered against multiple parties but appealed by only one.

It noted that appellate scope of review is “generally limited to those parts of the judgment that have been appealed and that aggrieve the appealing party;” “no statutory nor constitutional authority permits an appellate court to exercise any general discretionary power to grant relief to a nonappealing party” [at 63]. Nevertheless, on rare occasions, Hecht held, appellate alteration may also inure to the nonappealing party where the “parties hav[e] a united and inseverable interest in the judgment's subject matter, which itself permits no inconsistent application among the parties.” [Also, Cover v Cohen, 61 NY2d 261 [1984]; Mixon, n. 2.]

Intertwined Orders or Judgments

Where disposition of the portion of an order or judgment appealed from is so inextricably intertwined with the portion of the order not appealed from, that it would be unjust to vacate one without the other, the court may vacate the nonappealed portion via its vacatur of the appealed portion. Citnalta Const. Corp. v Caristo Assoc. Elec. Contractors, Inc., 244 AD2d 252, n. 1 [1st Dept 1997] (the failure to factor the payments to the original subcontractor into the damages award was inextricably intertwined with the failure to factor the cost of the change orders into that award, the correction of the former error required correction of the latter.)

In City of Mount Vernon v Mount Vernon Hous. Auth., 235 AD2d 516 [2d Dept 1997], plaintiff-appellant cross-moved to amend the notice of appeal. The Appellate Division found that this case was a rare occasion “where an appellate court may review and alter provisions of an order or judgment which were not described in a limited notice of appeal [because] the subject of the limited appeal are[sic] 'inextricably intertwined' with those that are not, so that to give appropriate relief requires the court, by necessity, to disturb a provision of the order or judgment which would otherwise not be before it.” Although the Appellate Division denied the cross-motion to amend the notice of appeal, it did “not foreclose the power [] to review and, if required, alter any portion of the order appealed from necessary to afford the appellant appropriate relief with respect to its limited appeal.”

Accepting the Benefits of a Judgment

Generally, a party accepting the benefits of a judgment waives the right to appeal that judgment. An exception occurs where the appeal seeks to increase the amount of the judgment. Estate of Fleischer, 126 AD2d 805 [3d Dept 1987].

In Kriesel v May Dept. Stores Co., 261 AD2d 837 [4th Dept 1999], plaintiff executed a satisfaction of judgment for damages for past and future lost wages and past and future medical expenses. Plaintiff could appeal the verdict's failure to include damages for pain and suffering:

Where “the outcome of the appeal could have no effect on the appellant's right to the benefit he or she accepted, its acceptance should not preclude the appeal. 'There is nothing inconsistent in a party's accepting the benefit of a judgment * * * and appealing in an attempt to increase the award' ” … “This exception appears to be limited to those instances where the appellant's right to the amount awarded by the original judgment is absolute, making it possible to obtain a more favorable judgment without the risk of a less favorable result upon retrial.”

Also Webber v Webber, 145 AD3d 1499 [4th Dept 2016]; Cornell v T. V. Dev. Corp., 17 NY2d 69 [1966].

Assignment of Judgment or Rights

An assignment, without reservation, is generally a transfer of one's whole interest. The assignee takes all the right, title and interest possessed by the assignor. Trans-Resources, Inc. v Nausch Hogan and Murray, 298 AD2d 27 [1st Dept 2002].

An appellant who had no interest in the judgment at the time of the order or during the statutory period for filing a notice of appeal is not aggrieved. That the judgment was again assigned to the appellant during the pendency of the appeal does not confer jurisdiction nunc pro tunc on the Appellate Division. Jacob and Valeria Langeloth Foundation v. Dickerson Pond Associates, 149 A.D.2d 408 [2^nd Dept 1989]; Advanced Distribution Systems, Inc. v. Frontier Warehousing, Inc., 27 A.D.3d 1151 [4^th Dept 2006].

Individual and Corporate Aggrievement

Individual and corporate rights of aggrievement are distinct. In Carollo v N. Westchester Hosp. Ctr., 5 AD3d 715 [2d Dept 2004], an action for medical malpractice and wrongful death, the plaintiffs were granted leave to add David T. Ennis, M.D., P.C., the professional corporation under which the defendant Dr. David Ennis conducted his medical practice, as a defendant. Dr. Ennis appealed. The order affected only the rights of the corporation, and not Dr. Ennis' individual rights. He was thus not aggrieved and could not appeal. [Also, LaRose v Cricchio, 20 NYS3d 169 [2d Dept 2015] ].

Part II, which will run Tuesday in Outside Counsel, addresses aggrievement and its relationship to: standing; third-party standing; alternative grounds for affirmance; the consequences of default, including conditional orders – CPLR §§ 3126, 5015(a)(1); 22 NYCRR 202.27; and subject of contest. Elliott Scheinberg is a member of the New York State Bar Association Committee on Courts of Appellate Jurisdiction. He is the author of the upcoming compendium, “The Civil Appellate Citator,” NYSBA (TBA), and of “Contract Doctrine and Marital Agreements in New York,” NYSBA, (3d ed. 2016). He is also a fellow of the American Academy of Matrimonial Lawyers.