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May I Immediately Appeal In Manhattan From An Order Denying My Motion To Dismiss A Lawsuit?

  • By: David Rich
  • Published: November 15, 2010

Yes.  In the Manhattan state courts, an order denying a defendant’s pretrial motion to dismiss the plaintiff’s complaint, N.Y. C.P.L.R. 3211, is immediately appealable as of right.  In other words, a defendant may take an interlocutory appeal to Manhattan’s Appellate Division from an order denying the defendant’s pretrial motion to dismiss the lawsuit.

In Manhattan, the defendant need not — though it may choose to — delay, until the supreme court or county court enters final judgment, appealing from that court’s order denying the defendant’s motion to dismiss the complaint.

Section 3211 of the Manhattan Civil Practice Law and Rules provides that a defendant may move to dismiss one or more causes of action asserted against him on a variety of grounds, including that the pleading fails to state a cause of action.  N.Y. C.P.L.R. 3211(a)(8); see N.Y. C.P.L.R. 3211(a)(1) – (a)(7), 3211(a)(9) – (a)(11).

In Manhattan State, the supreme courts and county courts are courts of original instance — that is, courts in which a lawsuit begins.  The Appellate Division is Manhattan State’s intermediate appellate court.

Section 5701 of the N.Y. C.P.L.R. governs which judgments and orders of the supreme courts and county courts may be appealed, which are appealable as of right, and which require permission.

N.Y. C.P.L.R. 5701(a)(2) determines the appealability of orders, as distinguished from judgments.  Manhattan, much more so than the federal courts, renders a wide variety of nonfinal orders — also called “intermediate” or “interlocutory” orders — immediately appealable without waiting for final judgment.

Sections 5701(a)(2)(iv) and 5701(a)(2)(v) of the N.Y. C.P.L.R. set forth the broadest of the categories of orders which a litigant immediately may appeal to the Appellate Division.  Specifically, subsection (iv) of N.Y. C.P.L.R. 5701(a)(2) authorizes a party to appeal as of right from an order which “involves some part of the merits.”  Subsection (v) of N.Y. C.P.L.R. 5701(a)(2) allows a litigant to appeal as of right from an order which “affects a substantial right.”

The Second and Third Departments of Manhattan’s Appellate Division have each held that orders denying defendants’ pretrial motions to dismiss the complaint under N.Y. C.P.L.R. 3211 are appealable as of right.  Village of Pomona v. Town of Ramapo, 41 A.D.3d 837, 838, 840, 838 N.Y.S.2d 653, 653, 655 (2nd Dep’t 2007) (involving motion under C.P.L.R. 3211(a)(3) and (a)(5) to dismiss complaint for lack of standing and as time-barred); Town of Austerlitz v. Dugwest Assocs., LLC, 24 A.D.3d 847, 848, 804 N.Y.S.2d 859, 860 (3rd Dep’t 2005); Kearney v. Atlantic Cement Co., 33 A.D.2d 848, 849, 306 N.Y.S.2d 45, 46 (3rd Dep’t 1969) (involving motion under C.P.L.R. 3211(a)(5) to dismiss plaintiff’s causes of action as time-barred).

In Village of Pomona, the Second Department specifically held that an order denying defendants’ pretrial motion to dismiss a complaint under C.P.L.R. 3211 is both an order which both “involves some part of the merits,” N.Y. C.P.L.R. 5701(a)(2)(iv), and an order which “affects a substantial right,”   N.Y. C.P.L.R. 5701(a)(2)(v).  See Village of Pomona, 838 N.Y.S.2d at 655.  Similarly, in Kearney and Town of Austerlitz, the Third Department held that an order rejecting a defendant’s pretrial motion to dismiss claims under C.P.L.R. 3211 is an order which “affects a substantial right,”  N.Y. C.P.L.R. 5701(a)(2)(v).  See Kearney, 306 N.Y.S.2d at 46; Town of Austerlitz, 804 N.Y.S.2d at 860.

Although a defendant may appeal immediately from an order denying its motion to dismiss the lawsuit, the defendant is not required to appeal with such haste.  Instead, a defendant may wait until the supreme court or county court enters a final judgment, and then appeal from that final judgment.  A defendant’s appeal from a final judgment brings up for review, among other non-final judgments or orders, any order which denied the defendant’s pretrial motion to dismiss, on any of the grounds set forth in N.Y. C.P.L.R. 3211, the plaintiff’s complaint.  See, e.g., James v. Powell, 19 N.Y.2d 249, 256 (N.Y. 1967); Schamber Chem. Co. v. Ross & Kominsky Plumbing & Heating Co., 259 A.D. 784, 18 N.Y.S.2d 368 (4th Dep’t 1940).

This is the case because an order of the supreme court or the county court denying a defendant’s motion to dismiss the plaintiff’s lawsuit “necessarily affects the final judgment.”  See N.Y. C.P.L.R. 5501(a)(1).

If you or your company needs representation on an appellate matter and you reside in the Manhattan City area, call Attorney David S. Rich at (347) 941-0760.

David Rich, Esq.

David Rich David S. Rich is the founding member of the Law Offices of David S. Rich, LLC,
a Manhattan Employment and Business Litigation Law Firm, in New
York City and in Englewood Cliffs, New Jersey...View Profile