One way in which appeals can be separated is into appeals from final orders and interlocutory appeals. “Interlocutory appeals” refer to appeals brought while the case is still proceeding at the trial level, i.e. before there has been a final order or resolution with respect to the case. Some situations in which a party may want to try to bring an interlocutory appeal, rather than wait until after the case has concluded, are where there has been a denial of a motion to dismiss that might have ended the case, denial of a motion for summary judgment, or a temporary order of custody/visitation that will have immediate consequences for a trial even before a final order of custody/visitation is issued.
In New York, interlocutory appeals can generally only be brought with the permission of the appellate court, and permission will typically only be granted if the appeal is being sought from an interlocutory order that “involves some part of the merits” or “affects a substantial right.” CPLR 5701.
Even if permission is granted to bring an interlocutory appeal, bringing any appeal can be a lengthy and protracted process, and the appellate court may not render a decision for many months. In such circumstances, especially where the inherent delay in the appellate system would cause prejudice or harm, other immediate remedies may be available while the appellate court considers the issues raised, such as preliminary injunctions or a stay of the interim order being appealed. Stays prohibit enforcement of the interim order or judgment, rather than prohibiting specific actions by the parties. Under ordinary circumstances, without a stay, interim orders remain in full force and effect while they are being appealed. However, CPLR 5519 allows for the trial courts itself, or the Appellate Division to stay enforcement of an order upon an application for a stay. A party requesting a stay pursuant must establish that they are likely to be successful on appeal, that there will be irreparable harm without the stay, and that a stay is fair under the circumstances. Typically, these interim remedies will be aimed at maintaining the status quo that existed prior to the interim order being appealed.
If permission is not granted to bring an interlocutory appeal, that doesn’t mean that interim orders can’t be reviewed after the case is concluded at the trial level. CPLR 5501(a)(1) sets forth the scope of appeals to encompass “any non-final judgment or order which necessarily affects the final judgment.”