Dean Pillarella Authors Article for New York Law Journal on Procedural “Catch-22”

New York, N.Y. (August 21, 2023) – New York Appellate Associate Dean Pillarella recently authored an article for the New York Law Journal (part of Law.com) titled, "A Fatal Attraction: ‘Aho’ Meets ‘Bonczar,’” which discusses whether and when the entry of final judgment renders an interlocutory order denying summary judgment unreviewable.

Mr. Pillarella opens the article by identifying a “Catch-22” present in New York procedural law. He explains, “The CPLR promises an appeal to any party denied summary judgment on the merits. However, once final judgment is entered, any interlocutory appeal is dismissed, and the denial of summary judgment is rendered unreviewable on the ground that it does not ‘necessarily affect’ the final judgment.” Mr. Pillarella observes, “This cannot be what the CPLR’s drafters envisioned as ‘the just, speedy and inexpensive determination of every civil proceeding.’”

The article goes on to review case law that created the apparent “Catch-22,” including the matters of In re Aho, 39 N.Y.2d 241, 248 (1976) and Bonczar v. American Multi-Cinema, Inc., 38 N.Y.3d 1023, 1026 (2022), which “together reduce the CPLR’s promise to a race against time for litigants and appellate courts.” After reviewing relevant case law, Mr. Pillarella proposes two solutions that could “remedy the injustice” that currently exists under the law: (1) amending CPLR 5501 to provide that an order denying summary judgment on the merits necessarily affects a final judgment, or (2) amending CPLR 5016 to provide that final judgment shall not be entered while an appeal from an order denying summary judgment on the merits remains unresolved. According to the author, “Until then, parties can only expeditiously perfect their appeals and hope to either obtain a stay or that the appeals are decided prior to entry of final judgment.”

Mr. Pillarella is a member of Lewis Brisbois' Appellate Practice. He focuses his practice on drafting and arguing substantive motions and appeals in New York. Mr. Pillarella regularly handles matters that involve civil rights, general liability, Labor Law, premises liability, products liability, professional liability, sexual abuse/misconduct (Child Victims Act and Adult Survivors Act), and transportation issues. He has experience at all stages of trial and appellate court practice.

You may access the full NYLJ article here (subscription may be required).