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ALTHOUGH THE ORDER ADDRESSING A MOTION TO SET ASIDE THE VERDICT WAS ISSUED AFTER JUDGMENT AND THEREFORE CANNOT BE SUBSUMED IN THE JUDGMENT, THE ORDER IS APPEALABLE; PRECEDENT TO THE CONTRARY OVERRULED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, overruling precedent, determined that an order issued after judgment, here an order on a motion to set aside the verdict, can be appealed:

… [W]e must consider whether a party may appeal directly from an order denying a CPLR 4404 motion when that order was entered after entry of a final judgment. In some of our previous cases, we have concluded that such an order is “subsumed in the judgment and the right to appeal directly therefrom terminated” (Paul Revere Life Ins. Co. v Campagna, 233 AD2d 954, 955 [4th Dept 1996] …). We now conclude that the rule set forth in Paul Revere Life Ins. Co. is inconsistent with the statutory framework and with Court of Appeals precedent, and should no longer be followed. Accordingly, we hold that an order otherwise appealable as of right (see CPLR 5701 [a]) entered after the entry of a final judgment is not subsumed in the judgment, but is independently appealable.

An appeal may be taken as of right from an order that, inter alia, “involves some part of the merits,” “affects a substantial right,” or “refuses a new trial” (CPLR 5701 [a] [2] [iii]-[v]). If, however, a court enters an “intermediate order” and subsequently enters a final judgment, the Court of Appeals has held that the entry of the judgment terminates the right to appeal from the order … . Although the right of appeal terminates, the order is not beyond review. There is a statutory remedy. An appeal from the final judgment “brings up for review,” inter alia, “any non-final judgment or order which necessarily affects the final judgment” or “any order denying a new trial” (CPLR 5501 [a] [1], [2]). Thus, CPLR 5501 (a) salvages the ability of aggrieved parties to seek review of the intermediate order on appeal.

On the other hand, orders entered after the entry of a final judgment cannot conceptually merge into the judgment. The rule in Aho [39 NY2d 241] applies only to an “intermediate order” … , which the Court of Appeals has defined as an order “made after the commencement of the action and before the entry of judgment” … . Consequently, inasmuch as the right of appeal from a post-judgment order remains in effect, we conclude that the appeal from the order here is properly before us. Knapp v Finger Lakes NY, Inc., 2020 NY Slip Op 03353, Fourth Dept 6-12-20

 

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