A prevailing party can still be a "sore" winner on appeal under CPLR 5501(a) (1); raising alternative arguments that necessarily affect the final judgment to ensure winning on appeal.

• Author: Castiglione, Joseph F.
• Position: New York Civil Practice Law and Rules

There's an old sporting adage in competition that says, basically, don't be a "sore loser"; however, there is no such advice for winners. This appears to hold true in New York civil litigation. After a losing party has just expended a significant amount of time, effort, and money in litigating and losing before a lower court, the prevailing party can force its adversary to address not only the substantive arguments concerning the underlying judgment they just lost, but can further assail the losing party with a multitude of alternate issues that "necessarily affect" the final judgment; and matters that "necessarily affect" the judgment can be completely different grounds to affirm the final judgment on appeal. (1) Rather than making losing any less distressing, New York's Civil Practice Law and Rules ("CPLR") empower a winning party to relitigate any number of issues that were initially decided in favor of the losing party below, to ensure that its final victory stands on appeal.

There's a broad scope of issues that a prevailing party can raise on its adversary's appeal from final judgment in New York civil litigation. This article discusses the necessary "aggrievement" for a winning party to be entitled to raise issues on appeal generally, as well as the circumstances in which a prevailing party can assert alleged errors below that "necessarily affect" the final judgment--beyond the issues involved in the final judgment itself--as alternative grounds to prevail on appeal under CPLR 5501.

1. "AGGRIEVED" UNDER CPLR 5511

   1. The Requirement of Being "Aggrieved" to Appeal

      CPLR 5501 addresses the scope of appellate review on appeals from final judgments in civil judicial proceedings for the Appellate Divisions of the Supreme Court, their Appellate Terms, and the New York State Court of Appeals. (2) The appellate authority in CPLR 5501 extends to a litany of issues on appeal from a final judgment, including, inter alia: remarks made by a "judge to which the appellant objected"; "any order denying a new trial or hearing which has not previously been reviewed by the court to which the appeal is taken"; "any ruling to which the appellant objected or had no opportunity to object or which was a refusal or failure to act as requested by the appellant"; and, relevant here, "any non-final judgment or order which necessarily affects the final judgment." (3) However, before a party can generally invoke the review under CPLR 5501, the party must be considered properly "aggrieved."

      The CPLR states that only "[a]n aggrieved party or a person substituted for him may appeal from any appealable judgment or order." (4) There is no definition provided for the word "aggrieved" in CPLR 5511. Rather, "[w]hen the revisers of the laws on civil practice were in the process of creating the CPLR, they were unable to formulate a definition for the word 'aggrievement' and they determined to leave that definition to case law." (5) The Court of Appeals helped fill that void in Parochial Bus System, Inc. v. Board of Education of New York. (6) The Court in Parochial Bus explained that, "[g]enerally, the party who has successfully obtained a judgment or order in his favor is not aggrieved by it, and, consequently, has no need and, in fact, no right to appeal." (7) This is because "the successful party has obtained the full relief sought," and therefore "he has no grounds for appeal or cross appeal." (8) Although a party that has obtained its requested relief cannot generally appeal under CPLR 5511, "[t]his rule is not inflexible." (9)

      A "successful party may appeal or cross-appeal from a judgment or order in his favor if he is nevertheless prejudiced because it does not grant him complete relief." (10) The courts have identified "prejudice" or incomplete relief as including: "situations in which the successful party received an award less favorable than he sought or a judgment which denied him some affirmative claim or substantial right"; (11) and where "a specific finding at trial might prejudice a party in a future proceeding by way of collateral estoppel"; (12) or when a party is not granted the primary relief requested, but is still granted relief requested in the alternative. (13) If "the successful party has obtained the full relief sought," that party is not considered aggrieved, even though the "party disagrees with the particular findings, rationale or the opinion supporting the judgment or order below in his favor, or where he failed to prevail on all the issues that had been raised." (14)

   2. Relief Granted to a Third Party, Not Involving the Remaining Parties, as Aggrievement Under CPLR 5501

      The Appellate Division, Second Department, recently considered whether an order dismissing a complaint against some defendants, but not all defendants, constituted proper "aggrievement" to the remaining defendants for the purposes of appealing the order of dismissal, in Mixon v. TBV, Inc. (15) Mixon was a personal injury action to recover damages sustained in a rear-end automobile collision. (16) The plaintiffs commenced the action against two separate groups of defendants ("defendants V" and "defendants L") that had been involved in the chain of events allegedly contributing to the automobile accident. (17) The defendants V cross-moved for summary judgment to dismiss the complaint against them, as well as for summary judgment dismissing the cross-claims asserted against them by defendants L. (18) The lower court issued judgment granting the cross-motion, dismissing the complaint and cross-claims against the defendants V. (19) The plaintiffs did not appeal that portion of the final judgment; however, the defendants L filed an appeal, contending that their cross-claims and the complaint should each be reinstated against the defendants V. (20)

      After reviewing Parochial Bus System, Inc. v. Board of Education of New York as the "leading case" on defining aggrievement, the Second Department posed the question, as relevant to the situation before the court, "what about a situation different from that in Parochial Bus, namely, one in which relief was requested in the trial court by someone other than the appellant, but the appellant is dissatisfied with the outcome of that request?" (21) The appellate court continued:

      The difficulty arises where someone seeks relief against a person other than the appellant, but on the appeal, the appellant challenges the outcome of that request for relief against the third person. Is aggrievement exclusively concerned with relief in that situation, or are we to consider the rationale or reasoning as well in order to determine whether a person is aggrieved? Can a person be aggrieved where the relief granted was not sought against that person but was sought against a third person? Alternatively, can a person be aggrieved only by the rationale used in that same situation where the relief granted was not sought against that person but was sought against a third person? (22) The court then engaged in a thorough discussion of the history of the substantive and procedural law involved with the personal injury claims, as well as relevant case law concerning aggrievement. (23) The Appellate Division ultimately determined that, to the extent that certain case law holdings conflicted with the Court of Appeals' holding in Parochial Bus, those prior cases on the issue had been overruled by the Court of Appeals' decision in Parochial Bus. (24)

      In Mixon, the Second Department promulgated "a two-pronged definition of the concept of aggrievement which, although it might be subject to some rare exceptions, should cover the broad majority of cases." (25) The court explained that:

      First, a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part. (26) Employing this definition, the Appellate Division determined that:

      Applying the second prong of that definition to the case at bar, it is apparent that both the plaintiffs and the [defendants L] were aggrieved by the order of the Supreme Court, the plaintiffs by the portion thereof that awarded summary judgment dismissing the complaint insofar as asserted against the [defendants V], and the [defendants L] by the portion thereof that awarded summary judgment dismissing their cross claim against the [defendants V]. The [defendants L] were not aggrieved, however, by the portion of the order that granted the branch of the [defendants V's] motion which was for summary judgment dismissing the complaint insofar as asserted against the [defendants V] because that branch of the motion sought relief against the plaintiffs and not against the [defendants L]. (27) Mixon has not been overruled by any case and apparently stands as valid case law. The Mixon decision serves to offer helpful insight about what does or does not constitute "aggrievement" under CPLR 5511.

   3. Stipulation to Damages and Aggrievement

      The Court of Appeals recently reexamined precedent regarding "aggrievement" when a party has stipulated to a reduction in damages in lieu of a new trial in Adams v. Genie Industries, Inc. (28) The Court explained in Adams that "[i]t has long been and remains the rule that parties who stipulate to a modification of damages as an alternative to a new trial are not aggrieved by that modification and may not appeal from it." (29) This rule had become known as the "Dudley Rule," based upon the Court of Appeals' decision in Dudley v. Perkins. (30)

      The Court noted in Adams that the Dudley Rule on aggrieved-status had been more broadly applied over the years by the courts. (31) For example, the Court of Appeals had previously held in 1998, in Batavia Turf Farms v. County of Genesee, that:

      a party who, as a result of a conditional order, has stipulated at the trial or appellate court to a reduction in damages in...