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When must the Lower Court File be Subpoenaed to the Appellate Division First and Second Department?

by | Mar 6, 2024


In a civil proceeding, the lower court file must be subpoenaed when an appellant has elected to perfect an appeal using the “Appendix method.” The Appendix is an abbreviated version of the full Record, and therefore, the Appellate Division requires a copy of the original Record on file. The subpoena must be executed prior to filing the Appendix and opening brief. In the Appellate Division – First Department, an appeal won’t be noted for the Term in which the appeal was perfected until the lower court has transferred the original Record and the file has been received by the Appellate Division.

If you’re appealing from an article 78 proceeding, even if there’s a Notice of Appeal filed, you must file a subpoena, if proceeding on the original Record. There’s no subpoena required if you’re reproducing your own Record on Review.

In a criminal proceeding, if the original Record hasn’t been routinely transferred to the Appellate Division, the appellant must file a subpoena prompting the transfer of the lower court file to the Appellate Division. This process is typically determined by the County of original instance. Appellants must contact the clerk’s office to confirm whether the original Record is on file at the Appellate Division. If not, then the subpoena must be recorded prior to filing the opening brief.

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