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What Should the Appellate Division Record Contain if Exhibits were Filed on a CD in the Lower Court?

by | Jan 10, 2019

From time to time, attorneys choose not to include physical copies of exhibits in motion papers filed in the Supreme Court. Rather than include voluminous medical records with thousands of pages, for instance, an attorney might attach a CD with bulk documents as an exhibit to their motion papers .

So, what will the Record look like when perfecting an appeal at the Appellate Division? 

Unfortunately, the Appellate Division will not allow an Appellant to simply file large motions on a CD. If a full Record is required, the documents must be printed and filed as volumes of bound books.  Moreover, if the matter is a NYSCEF (efiled) matter, the electronic Record must be prepared incorporating the complete set of documents rather than just one notation with a reference to the CD.  With the Appellate Division still requiring numerous hard copies of the Record to be filed (and sometimes served if the case is not a NYSCEF case), this method can prove to be quite costly.

The Appellant may, however, file/serve an Appendix. An Appendix might include only those documents to which the Appellant is citing in the brief (as well as those to which one anticipates the Respondent will cite), thus reducing costs dramatically.  In the above example, if not necessary or germane to the appeal, the Appellant could omit the bulk exhibits altogether (as long as said omission does not compromise the Appellant’s, position on the appeal).

1 Please note that not all of the county courts allow motion papers to be filed on a CD. Be sure to check with the specific court in order to ensure that it will accept this method.

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