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Friday, February 10, 2012

What is an interlocutory Appeal in New York?

An appeal is a request to a higher court to review decision(s) made by a lower court.  Many appeals are brought after a trial has been held, and the trial judge’s many decisions are submitted to an appellate tribunal for review.  Appeals can also be brought, however, on an interlocutory basis.  Very simply put, an interlocutory appeal is one which is brought after commencement, but prior to the final determination or termination of an action.  Appellate Courts and their powers are creatures of statute.  These statutes serve to limit the jurisdiction of appellate courts (Federal and State), and an appellate lawyer in New York must comply with strict rules to ensure that an appealable order first vests jurisdiction into the appropriate appellate court.

In New York State Courts, an interlocutory order that “involves some part of the merits;” or “affects a substantial right” may be appealed as of right.  This language contained in the midst of various other factors in Article 57 of the Civil Practice Law and Rules, has been interpreted broadly and can include a multitude of decisions and orders in trial court.  A denial of a CPLR 3212 summary judgment or of a CPLR 3211 motion to dismiss is perhaps the most common interlocutory appeal taken as of right.  In Federal Circuit Court, the rules vary and most interlocutory appeals are not permitted as of right.  Stay tuned for a discussion of interlocutory appeals in Circuit Courts.

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