Interlocutory Appeals

Interlocutory appeals are a staple of civil appellate practice in the New York State courts. CPLR § 5701(a)(2)(v) gives a party the right to appeal to the Appellate Division from an interlocutory order which "affects a substantial right."

The New York courts have generously interpreted "affects a substantial right," so that there are few interlocutory orders which are not appealable as of right.

In the federal courts, however, there are few interlocutory appeals as of right. See, 28 U.S.C. § 1292(a). They must be authorized by a district judge. 28 U.S.C. § 1292(b). Litigants must, therefore, ordinarily await final judgment before raising on appeal a district judge ruling earlier in the case. There are two recent reminders of the limits on interlocutory appeals in federal courts.

In Mohawk Industries, Inc. v. Carpentier, ___ U.S. ___, 130 S.Ct. 599 (2009), the Supreme Court ruled that an immediate appeal would not be permitted from a disclosure order of a district judge which arguably impinged on the attorney-client privilege. This was the first full opinion written by Justice Sonia Sotomayor. The opinion can be found here.

Earlier this week in In re Zyprexa Products Liability Litigation the United States Court of Appeals for the Second Circuit restated the limited availability of interlocutory appeals in the federal courts. The decision can be found here.