Records on Appeal: What Lower Court Documents Should Be Included in an Appellate Filing?

Many of our clients assume that a Record on Appeal should include everything in the lower Court file. The Record, however, should only include the documents that the lower Court considered when it rendered the particular Order/Judgment being appealed. Oftentimes, Supreme Court Justices issue a Memorandum cover page that lists all of the documents that were considered.

Firstly, be sure that, whether your Record on Appeal is derived from motion practice or a trial, the Notice(s) of Appeal along with the Order/Judgment being appealed are always included.

When the Order/Judgment being appealed is a result of motion practice, the Record on Appeal includes the Notice of Motion, Affidavit/Affirmation in Support, the Affidavit/Affirmation in Opposition, Reply Affidavit/Affirmation and all respective exhibits. The pleadings as exhibits to the various Affidavits/Affirmations should also be included.

In an appeal from a verdict after trial, the Record on Appeal consists of the trial transcript, all exhibits admitted into evidence, the pleadings, and the Judgment Roll. Please note that the trial transcript must be settled, which means that either the parties must stipulate to its correctness or it must be sent out with a 15-day Notice of Settlement. The other parties to the appeal have 15 days to respond with corrections, if any. Alternatively, once 15 days have passed, the Appellant includes an Affirmation of Compliance in the Record (stating that the transcript has been settled). In the rare instances that the parties cannot agree on the correctness of a transcript, the trial judge is called upon to settle the transcript.

Questions regarding the inclusion of Memoranda of Law in the Record are frequently asked by our clients. Generally, it is frowned upon by the Appellate Division because a Record is a compilation of fact and Memoranda of Law are argument. However, a Memorandum of Law is included if it was the only document that one (or more) of the parties below filed in support of their position.

The New York State Appellate Division also allows appellants the option of perfecting an appeal using the Appendix method. When perfecting an appeal with the Appendix method, the Appellant may be selective about which documents to include and which documents to omit from his filing. Just keep in mind that Appellants must subpoena the entire lower Court file from the Court of original jurisdiction to the Appellate Division when using this alternative method.