For any attorney who practices in New York Supreme Court, interlocutory appeals—that is, appeals to the Appellate Division from non-final orders—are a standard fixture. New York's approach to such appeals is so liberal that it is common to assume that just about any order of the Supreme Court will be appealable "as of right" (that is, without the need to seek permission either from that court or from the Appellant Division). But this is only almost true: Some types of orders are not appealable absent permission; others require additional procedural steps before an appeal can be taken. This article explores those nuances.

Substantive Categories: Broad But Not Limitless

On its face, CPLR 5701 (titled "Appeals to appellate division from supreme and county courts") seems to make virtually any order of the Supreme Court appealable as of right. CPLR 5701(a)(2), which lists the types of orders to which this right attaches, is extremely broad in scope—authorizing appeals as of right from (among other things) orders that "involve[] some part of the merits" (CPLR 5701(a)(2)(iv)) or "affect[] a substantial right" (CPLR 5701(a)(2)(v)).

As the official commentary says of these two provisions, "Between them both they cover most orders." Reilly, Practice Commentary, McKinney's Cons. Laws of NY, Book 7B, CPLR 5701, C5701:4. And so it would appear: It seems almost self-evident that any order a party would want to spend the time and money to appeal must (at a minimum) "affect[] a substantial right." See, e.g., Solomons v. Douglas Elliman, 95 A.D.3d 696 (1st Dept. 2012) (order denying motion to compel certain discovery impacted a party's "ability to pursue a theory of the case" and was therefore appealable as affecting a substantial right); Wall Street Assocs. v. Brodsky, 295 A.D.2d 262, 262-63 (1st Dept. 2002) (ruling that certain testimony was not barred by the Dead Man's Statute affected a substantial right and was therefore appealable as of right; the testimony "may be central to the resolution of the action").