Perfecting a Civil Appeal in the New York State Appellate Division: Which Method is Best for You and Your Client?

Almost everyone is familiar with the rules on how to “take an appeal,” but we are not as familiar with the rules on how to “perfect” an appeal. The two most used methods are The Full Record Method and The Appendix Method. There is also a rarely used third method, The Agreed Statement Method, which we will get into very briefly at the end of this article. For the purposes of this article, I will introduce each of the three methods in order of the frequency in which they are used, focusing mainly on the two most common methods of perfecting an appeal.

First, let’s go over some of the documents that you must always include, no matter which method is used. You must include the notice of appeal, the Order or Judgment being appealed from, a statement pursuant to CPLR § 2105, a stipulation pursuant to CPLR § 5532 (Fourth Department only), and a statement pursuant to CPLR § 5531 (in the First Department, you would use the Pre-Argument Statement that was filed along with the notice of appeal.)

Generally, memoranda of law are not to be included in the Record unless there is independent relevance for referring to them, or if it is a party’s only response or opposition. The general rule of practice is if you include one memorandum, then you should include all of the memoranda.

The three ways you can perfect your appeal are as follows:

The Full Record Method
This method consists of including all the documents before the Judge at the time the Order or Judgment appealed from was rendered. When you are appealing from a Final Judgment, the following documents should be included:  table of contents, statement pursuant to CPLR § 5531 or Pre-Argument Statement, notice of appeal, Judgment Roll (Pleadings), transcript of proceedings, if any (no condensed transcripts allowed in the Second Department), exhibits, any other reviewable Order or Opinion in the case, any Post-Trial Motions, stipulation settling the transcript or Affirmation of Compliance, stipulation dispensing with reproduction of exhibits “So-Ordered,” certification pursuant to CPLR § 2105 or stipulations pursuant to CPLR § 5532.

If you are appealing after an Interlocutory Order, you should include the following documents: table of contents, statement pursuant to CPLR § 5531 or Pre-Argument Statement, Notice of Appeal, Order appealed from, Motion/Order to Show Cause Papers, Affidavits in Support (with any exhibits), Affidavits in Opposition (with any exhibits), Reply Affidavits (with any exhibits), certification pursuant to CPLR § 2105 or stipulations pursuant to CPLR § 5532.

This is the most widely used method, when the Record is not going to be very large. If the Record is voluminous, it may be in the Appellant’s best interest to proceed on the Appendix Method.

The Appendix Method
With this approach, you are providing the Court with excerpts from the full Record. The Appellant will choose the documents, or portions thereof, that they believe the Court needs to review to address the issues on appeal. However, the Appellant must also provide the Court with the documents, or portions thereof, that they believe the Respondent will want to rely upon, as well. When using the Appendix Method it is always best to try and coordinate as best you can with the opposing party on what to include in the Appendix, this way both sides are happy.

When using the Appendix Method in the First and Second Departments, you must subpoena the full Record from the lower Court, so that the clerk can send up the Record to the Appellate Division. In the Third and Fourth Departments, the Appellant will prepare one full copy of the Record, and serve it upon the opposing party, who will then review it and stipulate to its correctness. If the correctness of the record cannot be agreed upon by both parties, the Court will then intervene to settle the Record.  Then each side will prepare their own Appendix for their briefs, including only the documents that they want the Court to review in support of their arguments.

Using the Appendix Method may save your client money when the volume of the Record is very large.  In order to determine if this is the best method for you, you must weigh the amount of attorney time that it will require to sift through the entire Record to pick and choose which documents are necessary, which may not save your client that much money in the end.  Therefore, you must carefully gauge the amount of time that is needed to prepare the Appendix and the actual cost to prepare the full Record.  It may be wiser to allocate that time on preparing the Brief, rather than reviewing documents to include in the Appendix.

Agreed Statement Method
Pursuant to CPLR § 5527, the parties may prepare a statement in lieu of a Record on Appeal. When the questions presented by an appeal can be determined without an examination of all the pleadings and proceedings, the parties may prepare and sign a statement. The statement must show how the questions arose and how the lower Court determined them. It must also set forth the facts averred and proved or sought to be proved as are necessary to a decision of the questions.  It may also include portions of the transcript of the proceedings or other relevant matters, including a copy of the Judgment or Order appealed from, the notice of appeal and a statement of the issues to be determined.  You have twenty days from when the appeal was taken to present the statement to the Court. It will then review the statement for approval. The Court may make corrections or additions necessary to fully present the questions raised by the appeal.  The final approved statement shall be printed as a Joint Appendix.

This method is rarely used, and in my many years in the appellate industry, I have never seen this method used.  I have included it just for the purposes of showing all available methods that can be used to perfect an appeal.