Interlocutory appeals—that is, appeals from nonfinal orders—are a ubiquitous feature of practice in New York state courts. But what if a party chooses not to file an interlocutory appeal? Under CPLR 5501(a)(1), an appeal from a final judgment brings up for review "any nonfinal judgment or order which necessarily affects the final judgment." That means that, at least in some cases, a party who is unhappy with an interlocutory order has a choice: appeal right away, or wait for a final judgment, and (if the judgment is adverse) appeal that judgment and seek review of the interlocutory order in connection with that appeal.

There is a catch, though: not every order that can be appealed on an interlocutory basis "necessarily affects the final judgment." In practice, it can be difficult to tell what does and what does not—and the Court of Appeals has admitted that its jurisprudence on this issue "may not all be consistent." See Oakes v. Patel, 20 N.Y.3d 633, 644 (2013). This has led the Advisory Committee on Civil Practice to recommend that the statute be amended to remove the phrase "which necessarily affects the final judgment," making any nonfinal judgment or order reviewable on appeal from the final judgment. (See Report of the Advisory Committee on Civil Practice to the Chief Administrative Judge of the Courts of the State of New York, January 2024, at 156-57). But unless that happens, counsel seeking to determine whether an order will be reviewable on a later appeal from a final judgment must ask themselves two questions: whether the order will necessarily affect that judgment; and if so, whether the right to appellate review will be preserved. Those questions are not always easy to answer. This article explores why.