Key Takeaway
Court applies CPLR 5520 to treat defective appeal as valid when appellant failed to appeal reargument order that superseded original order.
The complexity of New York civil procedure can create unexpected pitfalls for even experienced practitioners. One particularly nuanced issue involves the proper handling of appeals when a court grants reargument and issues a new order that supersedes the original decision. This scenario raises important questions about which order should be appealed and what happens when an attorney appeals from the wrong order.
In criminal and civil cases alike, when a court grants a motion for reargument and issues a new order, that subsequent order typically supersedes the original decision. This creates a procedural trap: appealing from the original order may be technically defective since it’s no longer the operative ruling. Understanding these procedural intricacies is crucial for maintaining appellate rights, just as attention to detail matters in other areas like proper motion timing.
Jason Tenenbaum’s Analysis:
People v Johnson, 2012 NY Slip Op 02213 (4th Dept. 2012)
“Following entry of the order granting that part of defendant’s motion, the People moved for leave to reargue with respect thereto**.** The court granted the People’s motion insofar as it sought leave to reargue and adhered to its prior determination. The People appealed from the original order and failed to appeal from the subsequent order entered on reargument, which superseded the original order (see Loafin’ Tree Rest. v Pardi , 162 AD2d 985).** We exercise our discretion to treat the notice of appeal as one taken from the subsequent order** (see CPLR 5520 ; see e.g. Kanter v Pieri, 11 AD3d 912, 912).”
I learn something new every day.
Key Takeaway
The Fourth Department’s decision demonstrates the court’s willingness to apply CPLR 5520’s liberal construction provisions to cure defective appeals. When the People appealed from an original order instead of the superseding reargument order, the court exercised discretion to treat the appeal as properly taken from the correct order, preventing a potentially harsh procedural dismissal.
Legal Update (February 2026): Since this 2012 post, New York civil procedure rules under CPLR 5520 and related appellate provisions may have been modified through court rule amendments or legislative changes. Practitioners should verify current reargument and appeal timing requirements, as procedural deadlines and superseding order provisions are subject to periodic revision.
