(IV) APPEAL TO REVIEW PRIOR NONFINAL APPELLATE DETERMINATION

• Jurisdiction: United States

(iv) Appeal to Review Prior Nonfinal Appellate Determination

Subdivision (d) of CPLR 5601 permits a direct appeal, as a matter of right, from a final judgment of a trial-level court in order to review a prior nonfinal determination of the Appellate Division, provided that the prior nonfinal Appellate Division order “necessarily affects” the final judgment.

The usual case of this type involves a prior order of the Appellate Division, rendered on an earlier appeal, which decided one or more of the issues in the case but lacked finality because other issues remained to be determined in the lower court. After the final determination subsequently rendered by the lower court, the losing party (the appellant) has the option of bypassing the Appellate Division and going directly to the Court of Appeals, provided the appellant is willing to limit this second appeal to a review of only the matters determined by the Appellate Division on the earlier appeal. This category of appeal requires a showing that a want of finality was the only barrier to a further appeal at the earlier stage, and that a jurisdictional predicate for an appeal “as of right” was otherwise present, e.g., a two-justice dissent.⁷⁹ If it was not, the appellant must obtain permission to appeal from either the Appellate Division or the Court of Appeals, as discussed below.⁸⁰

On such a direct appeal, the Court of Appeals can review only the points previously determined by the Appellate Division⁸¹ and the appellant waives review of new matters subsequently passed on by the lower court.⁸² The appellant who desires review of such new matters must take a second appeal to the Appellate Division, which would review only the new matters. The appellant can then obtain review by the Court of Appeals of both Appellate Division determinations, provided that the applicable requirements for appeal of right or by permission...