When filing Notices of Appeal for matters to be perfected in the Appellate Division, First and Second Departments, my clients will often note that there are a number of similarities between these simple procedures.
For both First and Second Department appeals, Appellants have 30 days1 after being served by hand with an Order and Notice of Entry to file a Notice of Appeal. Appellants must file their Notice(s) of Appeal at the Court of original instance (i.e. the county Court), along with the Order or Judgment appealed from (with Notice of Entry) and proof of service. There is also a $65.00 filing fee required. Appellants must be sure to serve a copy of the documents on each party involved.
While there are fundamental similarities, several differences can also be found when filing a Notice of Appeal for these two Courts, which are important to note.
The First Department’s jurisdiction is New York and Bronx counties, while the Second Department’s jurisdiction covers 10 counties (Kings, Queens, Richmond, Nassau, Suffolk, Westchester, Rockland, Putnam, Dutchess and Orange). Since the latter has a heavier case load than the First Department, there can be a delay in the Second Department assigning a Case number to an appeal, without which an appeal cannot be perfected. In the First Department, the lower Court index number is used at the appellate level, making things even simpler.
Also, the First Department requires that the Pre-Argument Statement be included with the appeal package documents while the Second Department requires Appellants to file a RADI (Request for Appellate Intervention) Form—a much longer and more detailed document. Be aware that designations on the RADI Form must match those on the Record/Appendix and Brief covers. A filing could be rejected if they do not.
Lastly, the First Department requires that the original version of the documents along with one copy be filed at the lower Court. At the Second Department, however, one original and two copies are filed at the lower Court.
1 Appellants have 35 days to file a Notice of Appeal if served by regular mail and 31 days if served by overnight mail. Without a Notice of Entry, there is in effect no time limit as to when the Notice of Appeal must be filed.