On December 30, 2014, the First Department issued a decision in 1471 Second Corp. v. Nat of NY Corp., 2014 NY Slip Op. 09039, dismissing an appeal on the ground that it was taken from a nonappealable paper.
In 1471 Second Corp., New York County Commercial Division Justice O. Peter Sherwood “denied defendants’ letter request to submit a reply brief in further support of their cross motion to dismiss or for summary judgment.” The appeal was dismissed because, under CPLR 5701(a)(2), an order is only appealable as of right “where the motion it decided was made upon notice.” (Emphasis added). Thus, an order made in response to an informal letter motion, or an oral application in Court is generally not appealable, unless leave is granted by the trial judge or a justice of the Appellate Division, under CPLR 5701(c).
Commercial litigators should bear the issue of appealability in mind, particularly in the context of discovery disputes, where the Commercial Division Rules and many judges’ individual rules encourage informal conferences and letter briefs. If you want to preserve your client’s right to appeal as of right, you will need to move by notice of motion or order to show cause.