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What are the Consequences for not Consulting with each Appellant when Perfecting a Joint Record in the Appellate Division Second Department?

by | Feb 2, 2023

PAUL LAMAR | EXECUTIVE VICE PRESIDENT OF APPELLATE SERVICES | PHP

I have been handling appeals in the Appellate Division-Second Department for over 20 years and in all that time the most prominent issue which I have found is when it comes to preparing a Joint Record on Appeal.

The court has determined that if multiple Notice of Appeals are filed on the same Case and each appellant plans to perfect then a Joint Record on Appeal must be filed. Each Appellant must sign off on the contents of the Joint Record, if not it can lead to issues after the Joint Record has been filed. Joint Record on Appeal documents could have been omitted that need to be part of the Joint Record. Once the Joint Record is filed the only way to add documents to the Joint Record is to file a Stipulation and/or Motion requesting the filing of a Supplemental Joint Record.

Where the confusion arises is when there is a lack of communication from the appealing parties. There have been times when each Appellant believes they are the Lead Appellant and begins preparing the Joint Record on Appeal. Unbeknownst to them the other Appellant (s) have also determined that they are the Lead Appellant and are preparing a Joint Record. This can add greatly to the cost of the Joint Record on Appeal.

Most of the time the first Appellant to file their Notice of Appeal becomes the Lead Appellant, however in my experience this does not occur all the time. It is incumbent on the parties to communicate with each other and determine who will be the Lead Appellant since the court will only accept 1 Joint Record on Appeal. Once that is established the parties can then decide on which attorney will prepare the Joint Record and which party will now become a Cross and/or Co-Appellant. There are times when a grey area exists where the parties are not 100 % sure if they are Cross or Co-Appellant.

The best way to assure that the filing of the Joint Record on Appeal, with the accompanying Briefs, goes as smoothly as possible is to open up the lines of communication as soon as the Notice of Appeals have been filed.

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