Settling Transcripts at the Appellate Division, First and Second Departments

Over the years, I have handled thousands of appeals in the First and Second Departments. The one step in the process that seems to befuddle the Appellant and/or Appellants is the settling of the transcript. There have been numerous instances when I receive documents for an appeal that is perfecting in less than a week or two and the transcript has not yet been settled. This can cause an issue depending on which Appellate Division Department you are filing the appeal.

In both courts, if a transcript is part of the appealable documents then the contents must be settled or agreed upon via stipulation. The general rule is that only transcripts containing sworn testimony must be settled. Oral argument transcripts do not have to be settled, however, in my experience, it is best to settle them also.

When settling the transcript, absent a stipulation, you must include a Notice of Settlement to all the relevant parties involved in the appeal. The parties then have 15 days to make corrections and return those to the Appellant. If they are agreed upon, then those corrections will be incorporated into the transcript, usually by hand. If a disagreement arises on settlement between the parties, then it will be up to the trial judge to settle the transcript. Once the transcript has been settled, an Affirmation of Compliance will then be incorporated into the Record or Appendix.

At the Appellate Division, First Department, the Appellant(s) is required to allow 15 days to the opposition to settle the transcript. The Appellate Division, Second Department, on the other hand, will allow the perfection of the appeal prior to the 15 day limit. If a party submits corrections after the appeal has been perfected, it is incumbent on the Appellant to have those changes added to the Record/Appendix that was filed with the court. Those changes must also be served on all of the parties.