Is your client’s appeal moot?

In New York appellate practice, navigating the procedural nuances of interlocutory and final judgments is critical to keeping your client's appeal alive. Two areas where terminology sometimes trips up practitioners are foreclosure defense cases and partition actions. Both involve the forced sale of real property, but the distinct posture of a final judgment of foreclosure and sale as opposed to a final judgment of partition necessitates different appellate strategies.

Here is a breakdown of how appeals from orders and judgments function in these two types of actions.

Foreclosure Appeals: The Final Judgment Trap

In a residential foreclosure action, the usual process is that a bank moves for summary judgment and an order of reference relatively quickly. If the court grants the motion, the order directs judgment in favor of the bank and directs a referee to calculate the exact amount due. Defendants often appeal these orders, raising arguments ranging from a lack of standing to the bank's failure to comply with statutory and/or contractual notice requirements.

However, the rest of the process doesn’t pause for the appeal. Often, the referee issues their report while the appeal is pending, and the bank moves to confirm the report and enter a final judgment of foreclosure and sale.

If that final judgment is entered, the appeal from the interlocutory order of reference is rendered moot because the final judgment supersedes it. To save the appeal, the defendant must file a new notice of appeal from the final judgment, move to consolidate the two appeals, and ask the Appellate Division to consider the issues raised in the appeal from the order as equally raised in the appeal from the final judgment. This procedural requirement is dictated by the Court of Appeals in Matter of Aho, 39 N.Y.2d 241 (1976).

Partition Appeals: Interlocutory Judgments and Confusing Terminology

Partition cases operate differently because of the specific statutory requirements set forth in Article 9 of the Real Property Actions and Proceedings Law (RPAPL). After fact-finding is completed in a partition action, the plaintiff will typically move for an interlocutory judgment setting the parties’ interests in the property and directing a partition by sale.

Though the term uses the word “judgment,” it refers to an interlocutory order, much like the interlocutory summary judgment orders issued in foreclosure cases. In a partition action, the property must be sold and the sale proceeds allocated according to the parties’ interests. Then the officer handling the partition sale and distribution of proceeds must file a report, which the court must confirm. Only then is a final judgment entered.

Some lawyers – even experienced trial ones – confuse the partition process with the one applied in foreclosure, assuming that once the property is sold at auction, the appellant's interest is extinguished and the appeal from the “interlocutory judgment” is moot.

That is not the case. In one partition case I worked on, I successfully opposed a plaintiff's motion to dismiss an appeal of a partition interlocutory judgment on mootness grounds after the partition sale closed. As I argued, an appeal of an order directing a partition by sale is not mooted by the sale because the owners retain an interest in the property until a "binding and conclusive" final judgment is entered, which directs the execution of conveyances, the application of proceeds, and the payment of taxes.

Does a sale moot the interlocutory appeal?

The appeal of a summary judgment and order of reference (always entered as an order) in foreclosure is what we call an “interlocutory appeal” because it is not from a final order or judgment. The appeal of an "interlocutory judgment” in partition is also an interlocutory appeal.

The “binding and conclusive” final judgment in a partition action is procedurally akin to the final judgment of foreclosure and sale in a foreclosure action. But the final judgment in partition is entered after a sale of the property, while the final judgment in foreclosure is entered before a sale. If a sale occurs in a foreclosure action, the interlocutory appeal is moot because a final judgment of sale must be entered before the sale. If a sale occurs in a partition action, the interlocutory appeal is not moot because a final judgment has not yet been entered.

Regardless of when the sale occurs, if a final judgment is entered while an appeal from a summary judgment order or interlocutory judgment is pending, then you need to file another notice of appeal and consolidate the two appeals.

A Tale of Two Procedures

Procedural Posture	Foreclosure Actions	Partition Actions
Initial Relief Granted	Summary Judgment & Order of Reference	Interlocutory Judgment Directing Partition by Sale
Nature of Initial Relief	Interlocutory Order	Interlocutory Judgment
When is Final Judgment Entered?	Before the property is sold at auction.	After the sale, following a report on the disposition of proceeds.
Does a Sale Moot the Interlocutory Appeal?	Yes, because a final judgment of foreclosure and sale must be entered prior to the sale, which moots the prior order.	No, the sale happens prior to the final judgment, so the interlocutory appeal remains active.

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