An appellant must satisfy three jurisdictional predicates before the Appellate Division may entertain the merits of the appeal: aggrievement (CPLR 5511); appealable paper (CPLR 5512) and timeliness (CPLR 5513). This article examines CPLR 5512(a), which provides, as pertains here: "An initial appeal shall be taken from the judgment or order of the court of original instance."

"A decision is not an appealable paper." Howell v. State, 169 A.D.3d 1208, n.1 (3d Dept. 2019); BNG Properties v. Sanborn, 153 A.D.3d 1221 (2d Dept. 2017); Render v. Gizzo, 129 A.D.3d 1488, 1489 (4th Dept. 2015). "Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from a decision." Sims v. Coughlin, 86 N.Y.2d 776 (1995); Gunn v. Palmieri, 86 N.Y.2d 830 (1995).

Mindful that the term "order" is generally rigidly construed, this month presents the coincidence of two decisions, one from the First Department and one from the Fourth Department, which appears to continue the jurisdictional expanse of that term.

Appeal From an 'Interim Decision', 'Hallmark of an Order'

In Spectrum News NY1 v. New York City Police Dept., 2020 NY Slip Op 00521 (1st Dept. 2020), the news agency filed a FOIL request for unredacted videos from the NYPD's voluntary body camera program begun in 2014. NYPD denied the request, claiming that unredacted files were exempt from disclosure under FOIL. Spectrum commenced an article 78 proceeding seeking a judgment compelling the NYPD to comply with its request. In a previous interim order, not the subject of this appeal, Supreme Court directed a hearing on whether compliance with Spectrum's request would be unduly burdensome on the NYPD.

Prior to the hearing, the parties stipulated that out of a disputed 328 videos, only 30 would be the subject of the hearing. Supreme Court issued "an interim decision," which was not the product of a motion for relief. The "interim decision" permitted certain redaction of faces of persons other than officers and the redaction of certain communications between officers; the parties were also directed to submit letters in preparation for a hearing on NYPD's ability to redact the records without unreasonable difficulty. Then, without conducting the hearing, Supreme Court granted petitioner leave to appeal from the "interim decision." The First Department declined to hear the appeal as it was taken from an "interim decision," a nonappealable paper, which "deprive[d] the Court of jurisdiction and require[d] dismissal of Spectrum's appeal, albeit without prejudice. Where a party brings an appeal from a nonappealable paper, this court regularly dismisses the appeal for lack of jurisdiction [cites omitted]." Spectrum emphasized that the interim decision "did not result in an order being issued" rather "the court was limiting the scope of the hearing."

The First Department went further and reminded us that the nomenclature "decision" is not determinative of whether a paper is appealable paper or not, citing its own precedent authority, Matter of Samantha F. [Edwin F], 169 A.D.3d 549 (1st Dept. 2019), appeal dismissed 33 N.Y.3d 1042 (2019): "[T]here are instances where this Court has deemed a paper denominated as a 'decision' to nonetheless be appealable because it contained all the hallmarks of an order that is not the situation here." Although the paper, in Samantha F., had been denominated a decision, it was, nonetheless, held to be an appealable paper because it bore the standard language advising that any appeal from the "order" must be taken within 30 days (Family Ct. Act (FCA) §1113), and was, "in substance, an order finding that the children had been abused/neglected (FCA §1051[a)), which is appealable as of right (FCA §1112[a))."

Notably, appeals from the Family Court are separately governed by Article 11 of the Family Court Act. The requirement in FCA §1113, that "All such orders shall contain the following statement in conspicuous print: 'Pursuant to section 1113 of the family court act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or attorney for the child upon the appellant, whichever is earliest'" has no counterpart in the CPLR (CPLR 2219(a)).

Where the Decision 'Meets the Essential Requirements of an Order'

In Nicol v. Nicol, 2020 NY Slip Op 00740 (4th Dept. 2020), the plaintiff "appealed from a decision denying his motion [for] a downward modification of his child support obligation, enforcement of certain terms of the parties' separation and settlement agreement, and attorney's fees." "Although not raised by the parties and although '[n]o appeal lies from a mere decision,'" the majority opinion in the Fourth Department, in reliance on Matter of Louka v. Shehatou, 67 A.D.3d 1476 (4th Dept. 2009), "concluded that the paper appealed from meets the essential requirements of an order, and we therefore treat it as such." The court modified the order, inter alia, remitting the matter to Supreme Court for further proceedings in accordance with the memorandum.

Justice Brian F. DeJoseph dissented, rejecting "this 'essential requirements' standard" as violative of the "clear [statutory] directive" that "defines [an appealable paper] either as an order or a judgment, not a decision that has some elements of an order," a "settled principle" "in all of the other Departments, as well as in the Court of Appeals." Specifically, the record included a decision that was denominated only as a decision without any ordering paragraphs. Further significant to the dissent was that the plaintiff's notice of appeal explicitly appealed "from the Decision."

 [The majority believe[s] that the decision is an appealable paper because it meets "the essential requirements of an order." … [T]he majority relies on Matter of Louka v. Shehatou, 67 A.D.3d 1476 (4th Dept. 2009)), wherein this court determined that a letter would be treated as an order inasmuch as "the Referee filed the letter with the Family Court Clerk and … the letter resolved the motion and advised the father that he had a right to appeal" … Although the decision here was filed and resolved the motion, there was no directive in the decision that plaintiff had the right to appeal from it. [I]submit that almost all written decisions at least attempt to resolve the issues presented by the parties and many of those decisions are also filed.

It seems as though the law in the Fourth Department has now effectively changed. [A]n appeal may lie from a mere decision if it was filed and if it resolved the issues presented by the parties, the appealable paper no longer needs to be labeled as an order and it no longer needs any ordering paragraphs, and the appellant can still appeal even if he or she refers to the paper on appeal as a "decision" in the notice of appeal.

Louka, Letter determining a motion without an order

In Louka v. Shehatou, 67 A.D.3d 1476 (4th Dept. 2009), the father appealed from an order of the Family Court that denied his motion to vacate an amended order entered upon his default, which order granted the mother sole legal and physical custody of the children and permanently terminated all of the father's prior custodial and visitation rights.

The Fourth Department began by emphasizing that, although the determination of the father's motion was contained in a letter, no order [had been] entered thereon:

[A]lthough the determination of the father's motion was in fact contained in a letter, no order was entered thereon. We further note however, that the Referee filed the letter with the Family Court Clerk and that the letter resolved the motion and advised the father that he had a right to appeal. Thus, by an order of this court entered December 3, 2008 in connection with the mother's motion to dismiss this appeal, we determined that the letter would be treated as an order.

Notably, unlike in Spectrum, where the First Department held that it could not hear the appeal from an otherwise nonappealable paper based on no more than a lower court's grant of leave to appeal, Louka did precisely that.

In Graziano v. County of Albany [as Election Commissioner of the County of Albany and as Member of the Board of Elections of the County of Albany], 12 A.D.3d 819 (3d Dept. 2004), the petitioner appealed from a letter decision of the Supreme Court, which declined to award him additional counsel fees. The Appellate Division dismissed the appeal on jurisdictional grounds because the letter decision did not contain the indicia of a judgment or order: It "contain[ed] no language that it is either a judgment or order of the court and [] no order was entered thereon (CPLR 5512(a)), this court lacks jurisdiction and the appeal must be dismissed." See also Washington v. Annucci, 153 A.D.3d 1504 (3d Dept. 2017).

In He v. Realty USA, 150 A.D.3d 1418 (3d Dept. 2017), the appellate court had previously affirmed the dismissal of the plaintiff's claims as time barred and frivolous and remitted the matter for the determination of a counsel fees award for the defendants. In a letter order, Supreme Court awarded the defendants $18,524.96 in costs and fees. Significantly, Supreme Court executed a formal order and judgment awarding it. The Third Department heard the plaintiff's appeal from the letter order and the order and judgment and affirmed.

Letter Orders That Necessarily Affect the Final Order

In Reynoso v. Dennison, 10 N.Y.3d 799 (2008), the Court of Appeals, sua sponte, dismissed an appeal from a letter upon the ground that it "is not a judgment or an order from which an appeal to the Court of Appeals may be taken (CPLR 5512(a); 5601)." Nevertheless, the predictability of the appealability of letter decisions and letter orders does not rest on terra firma.

Two decisions, from two departments, Banker v. Banker, 56 A.D.3d 1105 (3d Dept. 2008) and Hageman v. Santasiero, 277 A.D.2d 1049 (4th Dept. 2000), addressed letter orders that necessarily affected the final order or judgment.

The judgment of divorce, in Banker v. Banker, 56 A.D.3d 1105 (3d Dept. 2008), incorporated but did not merge an oral stipulation of settlement which provided that the parties would subdivide a parcel of property. The plaintiff moved to enforce the stipulation. The Supreme Court ordered the defendant to obtain subdivision approval from the Town Planning Board. The Planning Board denied the defendant's subdivision application upon discovering that the property was encumbered by a restrictive covenant against further subdivision. The Appellate Division noted, although the Planning Board later reversed its denial of the application on the basis that the Town should not enforce a private covenant, it was undisputed that the landowners who benefited from the covenant were unwilling to waive it, thereby rendering subdivision infeasible as it would subject the parties to suit.

The defendant moved to reargue and/or renew the order that directed him to obtain subdivision approval and for a hearing to determine equitable distribution. Supreme Court did not rule on the defendant's motion but reserved decision on all pending matters until an appraisal of the property was completed. Supreme Court subsequently appointed an appraiser and ordered a hearing to permit the parties to cross-examine the appraiser, but made it clear that no other testimony or evidence of valuation would be permitted. Following the hearing, the court determined the interests of the parties in the property to be 83% for plaintiff and 17% for defendant.

The Appellate Division held:

[T]he issues that defendant raises on appeal are properly reviewable as they were issues decided by nonfinal letter orders which necessarily affected the [] final order appealed from (CPLR 5501(a](1] …).

Hageman v. Santasiero, 277 A.D.2d 1049 (4th Dept. 2000) involved a medical malpractice action. Prior to trial, defendant Health Care Plan (HCP) moved for summary judgment pursuant to Public Health Law §4410. Supreme Court reserved decision but ruled that HCP could not be referred to as a defendant during trial. Judgment was entered in favor of defendant-physicians upon a jury verdict of no cause of action. Thereafter, the court ruled by letter order that the summary judgment motion was moot. The plaintiff appealed from the judgment entered upon the jury verdict:

[P]laintiff's contention concerning the court's letter order is not properly before us. The only notice of appeal in the record is from the judgment, and the order does not 'necessarily affect[ ] the final judgment' entered against defendant-physicians (CPLR 5501(a)(1) …).

Otherwise nonappealable papers draw greater scrutiny when they necessarily affect the final order or judgment, as reflected in recent case law which held ex parte and sua sponte orders directly appealable from the final order or judgement even though they were otherwise not directly appealable during the pendency of the action: E. Scheinberg, "Braun v. Cesareo, When CPLR 5701(a)(2) Intersects CPLR 5501(a)(1)," NYLJ, Sept. 16, 2019; Ahmed v. Ahmed, 175 A.D.3d 1363 (2d Dept. 2019), citing Shah v. Oral Cancer Prevention Intern., 138 A.D.3d 722 (2d Dept. 2016); E. Scheinberg, "Appellate Updates, Part I," NYLJ, Oct. 17, 2019.

Elliott Scheinberg is a member of NYSBA Committee on Courts of Appellate Jurisdiction. He is the author of The New York Civil Appellate Citator (NYSBA, 2 vols., 2019) and Contract Doctrine and Marital Agreements in New York, (NYSBA, 2 vols., 4th ed., 2020). He is a Fellow of the American Academy of Matrimonial Lawyers.