United States: Aggrievement: Consult Case Law to Ensure Requirement Has Been Met

The general rule is that only parties to an action or proceeding—and only parties who are "aggrieved"—may appeal, either as of right or by permission, from an appealable judgment or order. CPLR 5511 codifies this rule by providing that "an aggrieved party or a person substituted for him may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party. He shall be designated as the appellant and the adverse party as the respondent."

The "party aggrieved" requirement is jurisdictional and subject to inquiry by the court on its own motion even if the respondent has not raised the issue. In Matter of Niagara Mohawk Power v. Green Island Power Authority, 94 N.Y.2d 891 (2000), for example, the appeals were dismissed "by the Court of Appeals, sua sponte, upon the ground that appellants are not parties aggrieved."

CPLR 5511 does not define the term "aggrievement"; the interpretation of this term has been left to case law. The leading case of Parochial Bus Systems v. Board of Education of City of New York, 60 N.Y.2d 539, 544-45 (1983) (citations omitted), provides a useful starting point for determining whether a party is aggrieved by a judgment or order for purposes of standing to appeal:

Generally, 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. The major exception to this general rule, however, is that the 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. This exception would include those 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. But where the successful party has obtained the full relief sought, he has no grounds for appeal or cross appeal. This is so even where that 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.

Courts have construed Parochial Bus to mean that "the concept of aggrievement is about whether relief was granted or withheld, and not about the reasons therefor." See Mixon v. TBV,  76 A.D.3d 144, 149 (2d Dept., 2010). Thus, "a person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him or her, which the person opposed, and the relief is granted in whole or in part." See Daviotis v. Kappa Services, 161 A.D.3d 722 (2d Dept., 2018).

Disposition in Appellant's Favor

As noted, a prevailing party who has been granted the full relief sought is not aggrieved and has no right of appeal. The fact that a judgment or order "may contain language or reasoning which [the prevailing parties] deem adverse to their interests does not furnish them with a basis for standing to take an appeal," see Olney v. Town of Barrington, ___ A.D.3d ___, 2018 WL 3007538, at *1 (4th Dept., June 15, 2018), citing Pennsylvania General Insurance v. Austin Powder, 68 N.Y.2d 465, 472-73 (1986). "The major exception to this general rule, however, is that the 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." See Mixon, 76 A.D.3d at 148, citing Norton & Siegel v. Nolan, 276 N.Y. 392 (1938).

A prevailing party may, however, raise an alternative ground for affirmance in opposition to the losing party's appeal. Under CPLR 5501(a)(1), "an appeal from a final judgment brings up for review * * * any nonfinal judgment or order which necessarily affects the final judgment, including any which was adverse to the respondent on appeal from the final judgment and which, if reversed, would entitle the respondent to prevail in whole or in part on that appeal, provided that such nonfinal judgment or order has not previously been reviewed by the court to which the appeal is taken." "Hence, the successful party, who is not aggrieved by the judgment or order appealed from and who, therefore, has no right to bring an appeal, is entitled to raise an error made below, for review by the appellate court, as long as that error has been properly preserved and would, if corrected, support a judgment in his favor."

A plaintiff is not aggrieved by an order that denied the defendants' motion for summary judgment dismissing the complaint based on spoliation of evidence and imposed the lesser sanction of an adverse inference charge, as requested by the plaintiff in opposition to the defendants' motion. See Hernstat v. Anthony's Windows on Lake, ___ A.D.3d ___, 2018 WL 2945717, at *1 (2d Dept., June 13, 2018). Conversely, "a party is not aggrieved by an order which does not grant relief that the party did not request." See Calverton Manor v. Town of Riverhead, 160 A.D.3d 838 (2d Dept., 2018) (citations omitted). Consistent with this rule, a party who simply opposes an adverse party's motion for summary judgment, without cross moving for the same relief, is not aggrieved by an order declining to search the record and sua sponte award the nonmoving party summary judgment.

Appeals by Nonparties

Although CPLR 5511 speaks in terms of an "aggrieved party," courts have nevertheless recognized a nonparty's right in certain circumstances to appeal from a judgment or order that directly affects its interests. The test is "whether the person seeking to appeal has a direct interest in the controversy which is affected by the result and whether the adjudication has a binding force against the rights, person or property of the party or person seeking to appeal." See In re Matthew L., 6 A.D.3d 712, 713 (2d Dept., 2004).

For example, courts have permitted a nonparty to appeal from an order directing it to produce documents pursuant to a subpoena (e.g., Brady v. Ottaway Newspapers, 97 A.D.2d 451 [2d Dept., 1983], aff'd, 63 N.Y.2d 1031 [1984]), denying a nonparty's motion to intervene in an action (e.g., Wagner & Stoll v. City of Schenectady, 107 A.D.3d 1225, 1227 [3d Dept., 2013]), expressly binding a nonparty to the terms of an injunction (e.g., Stewart v. Stewart, 118 A.D.2d 455, 458 [1st Dept., 1986]), or sanctioning a nonparty (e.g., Saastomoinen v. Pagano, 278 A.D.2d 218 [2d Dept., 2000]).

Effect of Default

As expressly stated in CPLR 5511, an aggrieved party may not appeal from a judgment or order "entered upon the default of [that] party." Instead, the proper procedure is for the defaulting party to move to vacate the default pursuant to CPLR 5015(a)(1) ("Relief from judgment or order"), and in the event of the denial of that motion, to appeal from the resultant order. See M & C Bros. v. Torum, 75 A.D.3d 869, 870 (3d Dept., 2010). An exception to this rule has been recognized where the default judgment arises from a contested motion under CPLR 3215 or under CPLR 3126 for failure to comply with a discovery order, see also Cole-Hatchard v. Eggers, 132 A.D.3d 718, 719 (2d Dept., 2015). Such judgment is directly appealable, provided again that the appellant appeared and opposed the motion.

Similarly, "no appeal lies from an order entered upon the consent of the appealing party, since a party who consents to an order is not aggrieved thereby." See Nakas v. Nakas, 159 A.D.3d 908, 910 (1st Dept., 2018). A party who stipulates to modification of a damage award in lieu of a new trial—the remittitur and additur procedures—is therefore not aggrieved by that modification and may not appeal from it. See Dudley v. Perkins, 235 N.Y. 448, 457 (1923). If the adverse party appeals from the judgment on unrelated issues, however, CPLR 5501(a)(5) confers jurisdiction on the Appellate Division to review the appropriateness of the remittitur or additur and to reinstate part or all of the original damage award. By the same token, a party who stipulates to modification of a damage award may seek appellate review of other unrelated issues in the case such as liability issues. Thus, in Adams v. Genie Industries, 14 N.Y.3d 353 (2010), the Court of Appeals reviewed issues relating to the defendant's liability despite its stipulation to an additur at the Appellate Division level.

The lesson that emerges is that, in all but the most obvious instances of "aggrievement," counsel must consult the case law interpreting the term to ensure that this threshold jurisdictional requirement has been met.

Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers. 

This article originally appeared in the New York Law Journal and is republished here with permission from law.com.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions