CPLR 5701 permits an immediate appeal from a nonfinal (interlocutory) order that “involves some part of the merits” or “affects a substantial right.” Appellate review of certain nonfinal orders, however, may be deferred until the entry of a final judgment provided such nonfinal order “necessarily affects the final judgment.” Specifically, CPLR 5501(a)(1) provides that an appeal from a final judgment brings up for review “any nonfinal judgment or order which necessarily affects the final judgment.”
This month, we examine the recent decision in Siegmund Strauss Inc. v. East 149th Realty,1 in which the Court of Appeals clarified the “necessarily affects” requirement of section 5501(a)(1) in the context of a nonfinal order dismissing the defendants’ counterclaims and third-party complaint. The Appellate Division declined to review this nonfinal order on the defendants’ appeal from the final judgment in favor of the plaintiff, concluding that the order did not “necessarily affect” the final judgment because, even if the order were to be reversed, the judgment for plaintiff “would still stand.”2
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