New York State, Appellate Division: CPLR §2105 v. CPLR §5532

The most frequent method of certifying that a Record on Appeal is accurate for the Appellate Division is the execution of a Statement Pursuant to CPLR §2105. This essentially notifies the Appellate Division that the documents contained within the Record on Appeal have been compared by the signing attorney to those documents which are in the lower court file, and have been found to be true and complete copies of said originals. This is the last page of the Record on Appeal and the First, Second and Third Departments will not accept a Record on Appeal without it.

Alternatively, the parties may also execute a Stipulation pursuant to CPLR §5532, which states that the documents included in the printed volume do in fact constitute the entire Record on Appeal. Frankly, there is no reason to execute a 5532 Stipulation when a 2105 will do. Why burden oneself with having to obtain consent from all counsel appearing in an action when it’s not necessary? A 2105 will almost always do the trick.

However, the Appellate Division, Fourth Department presents the one exception to the rule, to wit, the 5532 Stipulation is mandatory. If one tries to file a Record with a 2105 as the last page, the Record will be summarily rejected. That means that long in advance of the deadline to file, it behooves the attorneys involved to ensure that they are on the same page and assemble what they know to be the entire Record on Appeal. Absent the inclusion of the 5532, AD4 will reject the Record on Appeal at the time of attempted filing and you run the risk of having your appeal rejected on this technicality.