Appellate practice in New York State courts often contains minefields. Here is one, a procedural issue that came to my attention and seems to me to be neither well understood nor consistently handled. That is, when a pretrial order grants summary judgment in favor of some of the defendants, may the plaintiff wait until the appeal from the final judgment to challenge that order, and may the Appellate Division treat that order as brought up for review in the plaintiff’s appeal from the final judgment after trial, dismissing the complaint in its entirety?
This issue came to my attention in an appeal where Supreme Court had granted summary judgment in favor of some defendants but not others. The summary judgment order directed that the complaint be severed and dismissed as against the successful defendants and that judgment be entered in favor of those defendants; however, no such judgment was entered.
