FREQUENTLY ASKED QUESTIONS
Common Questions. Detailed Answers.
Appeals
My adversary filed what purports to be a Record on Appeal, but failed to include one of the documents that was considered by the Lower Court in rendering the Order being appealed. What should I do?
- You may stipulate with all parties to file a Supplemental Record. A sample Stipulation can be found at the PrintingHouse Press website. If parties will not stipulate to a Supplemental Record then a Motion can be filed.
What should my Record on Appeal consist of when appealing a State Court Judgment to the Appellate Divisions? (CPLR § 5526)
- Statement Pursuant to CPLR 5531
- Notice of Appeal
- Judgment being Appealed
- Judgment Roll (Pleadings), Transcript(s) and Exhibits
- Any Other Reviewable Order or Opinion in the Case
- Stipulation Settling the Transcript or Affirmation of Compliance
- Stipulation Dispensing with Reproduction of Exhibits “So Ordered”
- Certification Pursuant to CPLR 2105 or Stipulation Pursuant to CPLR 5532
What should my Record on Appeal consist of when appealing an Interlocutory Order to the Appellate Divisions? (CPLR § 5526)
- Statement Pursuant to CPLR 5531
- Notice of Appeal
- Decision/Order being Appealed
- Motion Papers/Order to Show Cause
- Affidavits in Support with any Exhibits Annexed Thereto
- Affidavits in Opposition with any Exhibits Annexed Thereto
- Reply Affidavits with any Exhibits Annexed Thereto
- Certification Pursuant to CPLR 2105 or Stipulation Pursuant to CPLR 5532
Who is responsible for preparing the Joint Record on Appeal or Joint Appendix? Who bears the cost?
- In cases where a Joint Record or Joint Appendix is warranted, the Appellant, Cross and/or Co-Appellants are responsible for assembling the Joint Record or Joint Appendix. The cost should be split between the appealing attorneys in the Appellate Division First and Second Departments. See rules: AD1–600.11 (d); AD2–670.8 (c)
My appeal has been perfected, moreover, I know right now that I will not be available on certain dates for oral argument and am worried that the Court may schedule my case for when I am unavailable.
You should advise the Court via letter (copying your adversaries) as soon as possible as to your schedule, noting specific dates when you will not be available for argument.
When should my Appeal be perfected?
The date of the Notice of Appeal or the Date of Entry of an Order Granting Leave to Appeal determines the date by which the appeal must be perfected. It is not the date that the appeal was filed with the Court. *Please note that AD1, unlike the other Departments, has a Term Calendar for when Appeals will be heard.
- AD1, AD3 and AD4: Generally perfected on the nine month rule, which is nine months from the date of the Notice of Appeal.
- AD2: Generally perfected on the six month rule, which is six months from the date of the Notice of Appeal.
When perfecting an appeal in one of the State Courts is a filing fee required?
Yes. A filing fee of $315.00 is required made payable to the particular department of the Appellate Division in which the appeal is being perfected. Neither Appellate Term, First or Second Departments require a filing fee.
Appendix
When perfecting on the Appendix method, do I need to subpoena the Lower Court’s record?
- Yes. The Lower Court record must be subpoenaed from the County of original instance and sent to the Department in which the case is being heard. Be sure to contact your PrintingHouse Press Sales Consultant with regard to subpoena fees as each county has different charges.
Are Memoranda of Law acceptable for inclusion in my Record or Appendix?
- AD1, AD2, AD3 and AD4: Acceptable only if they have independent relevance-though typically excluded. Record is compilation of fact and Memoranda of Law is argument
- AT1: Not acceptable even as an exhibit, unless they are cited in the Judge’s Order
- Federal Courts: Acceptable only if they have independent relevance
What should my Appendix consist of to the Appellate Division?
- Statement Pursuant to CPLR 5531
- Notice of Appeal
- Decision/Order being Appealed
- Any Pleadings as to the Issues Raised on Appeal
- Any Relevant Portions of Motions, Opinions, Transcripts or Exhibits
- Stipulation Settling Transcript or Affirmation of Compliance
- Certification Pursuant to CPLR 2105 or Stipulation Pursuant to CPLR 5532
- No Certification for AD1 cases
E-Filing All Departments
When should the initial information and documents be electronically filed?
Within 14 days of the filing of a notice of appeal in the county of original instance for all applicable matters.
What will happen if counsel for a respondent does not enter the initial information required under Section 1245.3(d)?
After the 20-day period, an attorney who has not entered the information required under Section 1245.3 will be deemed served with any e-filed documents.
If I am an unrepresented litigant and want to participate in e-filing in a matter, what must I do?
An unrepresented litigant may voluntarily participate in e-filing by electronically recording his or her consent at the NYSCEF site, registering as an authorized e-filer with NYSCEF, entering the case and contact information about the matter, and e-filing a copy of the notice of appeal, the judgment or order appealed from and the informational statement as required by the rules.
How many hard copies of the record or appendix and brief must be filed with the Court?
The parties must file one original and five copies of a record, appendix and brief.
I want to file an interim relief application. Will the Court permit the initial submission to be filed and served in hard copy?
Yes, the Court will permit interim relief application to be initially filed in hard copy and e-filed thereafter. If an interim application is initially filed in hard copy, it must be accompanied by a notice of hard copy submission on the form provided by the Court.
What is the next step after I complete the initial entry of information?
Counsel for appellant or an unrepresented litigant who voluntarily participates in e-filing will receive a “calendar number” from the Court. Within seven (7) days of receipt of the “calendar number”, counsel for appellant or an unrepresented litigant who voluntarily participates in e-filing must complete and serve in hard copy the Notification of Case Number and Other Pertinent Information form on all the other parties and e-file proof of service of this notification.
Why does the Court require the entry of initial information for e-filing?
All authorized e-filers who have entered information for a particular matter as required under 22 NYCRR 1245.3 will be able to e-file and be served electronically in that matter.
May an attorney be exempt from e-filing?
An attorney who certifies in good faith, on the form provided by the Court, that he or she lacks either (1) the computer hardware and/or connection to the internet and/or scanner or other device by which documents may be converted to a digital format; or (2) the requisite knowledge in the operation of such computers and/or scanners necessary to participate, will be exempt. The certification has to be served on all parties and filed with the Court in hard copy.
Will the Court permit a motion to be electronically filed?
Yes. Motions on all applicable matters may be electronically filed.
What am I required to do if I am served with a Notification of Case Number and Other Pertinent Information?
Within 20 days of service, counsel for a party served with a Notification of Case Number and Other Pertinent Information form is required to register or confirm registration as an e-filer in NYSCEF and enter the contact information requested.
I am an unrepresented litigant: I do not have an attorney. Do I have to participate in e-filing?
An unrepresented litigant is exempt from and is not required to participate in e-filing. He or she must be served in hard copy. An unrepresented litigation may voluntarily participate in e-filing.
Does the Court require hard copies of e-filed records, appendices and briefs?
Yes. Hard copies must be filed within two (2) business days after notification by the clerk that an electronic version of a document has been reviewed and accepted.
Does the Court require hard copies of e-filed motions?
Yes. One hard copy of an e-filed motion must be filed with the Court within two business days of receipt of email notification that the clerk has reviewed and approved the electronic version of the motion.
E-Filing AD1
What type of cases will be required to be electronically filed in the First Department?
Appeals in commercial matters originating in the Supreme Court, Bronx and New York Counties.
What are the initial documents that must be e-filed with the Court?
Counsel for appellant or an unrepresented litigant who voluntarily participates in e-filing is required to enter the contact and other information requested, and e-file:
- A copy of the notice of appeal;
- A copy of the order or judgment appealed from; and
- A copy of the informational statement.
E-Filing AD2
What type of cases will be required to be electronically filed in the Second Department?
All matters originating and electronically filed in Supreme and Surrogate’s Courts in Westchester and Suffolk Counties.
What are the initial documents that must be e-filed with the Court?
Counsel for appellant or an unrepresented litigant who voluntarily participates in e-filing is required to enter the contact and other information requested, and e-file:
- A copy of the notice of appeal;
- A copy of the order or judgment appealed from; and
- A copy of the informational statement.
E-Filing AD3
What type of cases will be required to be electronically filed in the Third Department?
E-filing rules in the Third Department apply as follows:
As of March 1, 2018, the e-filing rules apply to:
Appeals in those civil actions commenced by summons and complaint in Supreme Court originating in the Third Judicial District in which the notice of appeal is filed on or after March 1, 2018; and
As of April 1, 2018, the e-filing rules will also apply to:
Appeals in those civil actions commenced by summons and complaint in Supreme Court originating in the Fourth and Sixth Judicial Districts in which the notice of appeal is filed on or after April 1, 2018;
Any matter that was e-filed in the trial court in which the notice of appeal is filed on or after April 1, 2018;
(Statement of E-Filing Form Required);
Any matter in which all parties consent to the case being e-filed and the notice of appeal is filed on or after April 1, 2018; and
(Statement of E-Filing Form Required);
As of July 1, 2018, the e-filing rules will also apply to:
Appeals in those civil proceedings commenced by petition in Supreme Court in which the notice of appeal is filed on or after July 1, 2018;
Transferred proceedings commenced by petition in Supreme Court in which the transfer order was entered on or after July 1, 2018;
Appeals in civil actions or proceedings commenced in County Court, the Court of Claims and Surrogate’s Court in which the notice of appeal is filed on or after July 1, 2018;
What are the initial documents that must be e-filed with the Court?
Counsel for appellant or an unrepresented litigant who voluntarily participates in e-filing is required to enter the contact and other information requested, and e-file:
- A copy of the notice of appeal;
- A copy of the order or judgment appealed from; and
- A copy of the informational statement.
E-Filing AD4
What type of cases will be required to be electronically filed in the Fourth Department?
E-filing has been mandatory in all appeals from the Commercial Division of Supreme Court since March 1, 2018, and in all appeals in matters originating in, or transferred to, Surrogate’s Court in the Fourth Judicial Department since July 1, 2018.
E-filing in the Fourth Department will continue to expand in the coming months. For appeals in which notices of appeal are filed on or after January 1, 2019, e-filing will be voluntary/consensual in almost all categories of civil matters filed in Supreme Court in the Fourth Judicial Department. It is expected that e-filing will continue to expand in the ensuing months in 2019.
What are the initial documents that must be-filed with the Court?
Counsel for appellant or an unrepresented litigant who voluntarily participates in e-filing is required to enter the contact and other information requested, and e-file:
- A copy of the notice of appeal; and
- A copy of the order or judgment appealed from
Filing & Formatting
What documents will I need when filing my Notice of Appeal?
- Pre-Argument Statement/RADI Form
- Notice of Appeal
- Order being Appealed
- Original Affidavit of Service
- $65 Filing Fee
What should I do if lower court documents I want to include in my Record to the Appellate Division First Department or Second Department are Illegible?
- AD1: The illegible documents may be retyped and included behind the illegible document. Be sure to clearly mark the illegible pages as retyped.
- AD2: Illegible documents may not be retyped. Pages must be included exactly as they appeared in the lower court.
How do I extend my time to Serve and File?
AD1 Records Appendices:
- Motion
AD1 Briefs:
- Personal Application by Attorney
- Stipulation among Parties
- Motion to the Court
AD2 Records Appendices and Briefs:
- By Letter Application
- By Stipulation (So Ordered for Record/Appendix)
AT1 and AT2:
- By Motion
- By Stipulation
NYSCA:
- Telephone call to the Clerk’s office. Once granted an extension, the requesting Party shall file a confirmation letter, with proof of service on each Party.
Second Circuit:
- By Motion filed via ECF
Why wasn’t my Appeal calendared in the Term for which I filed my Record/Appendix & Brief in the First Department?
For reasons ranging from the Court Docket being overwhelmed to outstanding Briefs yet to be filed, the Court adjourned your Appeal sua sponte to the next available Term. The Court Argument/Submission Calendars will be accessible online. Your appellate consultant will send you the dates on argument/submission once available.
How should I cite to my Record/Appendix in my Brief?
- Record: R1, R54, R104, etc. Begin with the letter “R” for Record followed by the page number
- Appendix: A1, A54, A104, etc. Begin with the letter “A” for Appendix followed by the page number
What are acceptable fonts that may be used in the Appellate Division when preparing a Brief? What are some general formatting rules for when I prepare it?
Examples of Proportional Fonts [14 Point Font with 12 Point Footnotes]:
- Times New Roman
- Bookman
- Century
- Century Schoolbook
- Palatino
- Baskerville
- Garamond
- Georgia Caslon
Examples of Monospaced Fonts [12 Point Font with 10 Point Footnotes]:
- Courier
- Courier New
Generally, Briefs must have a Proportional/Monospaced typeface, with one inch margins all around. They also must be double-spaced with a single space between quotations longer than two lines (with double indentation). Please refer to our web app or your sales consultant for the nuances in regard to restrictions, page and word limits, etc.
Can anything be attached as an Addendum to the back of the brief?
Each Court has specific rules as to what may be attached. Generally the Courts do not allow documents to be attached to Briefs.
Am I required to include Color documents in my Record or Appendix to the Appellate Division First and Second Departments?
- AD1: Allowed to use black and white photos and documents
- AD2: If the photos or documents were in color in the lower court they must be submitted to the Second Department in color. If they were submitted in black and white or if color photos are no longer available, a letter stating such must be filed with the Record/Appendix.
Other
What are the requirements for any Motion to the Appellate Division? Is there a fee?
Eight days notice if served by hand or thirteen days notice if served by mail. Also required are a Notice of Motion and Affirmation in Support with Exhibits. Serve one copy and file one copy under blue back. Generally in the State Courts a filing fee of $45 is required to file a Motion.
I just realized that I am not going to be available for an Oral Argument that has already been calendared. Can I adjourn?
In order to adjourn an Oral Argument date that is already calendared, you must file a Stipulation to Adjourn that has been executed by both Parties with a letter describing the reason that you need the Adjournment.
How do I settle my Transcripts? (CPLR 5525)
A) By 15 Day Notice of Settlement
- Make a copy of the Transcript(s)
- Prepare a Notice of Settlement Form
- On letterhead list any proposed amendments to the Transcript(s)
- Serve a copy of the transcript(s), with Notice of Settlement and proposed amendments upon the opposing party(ies)
- Once 15 days have lapsed, prepare an Affirmation of Compliance to be included in the Record on Appeal
B) By Stipulation
- Make a copy of the Transcript(s)
- Prepare a Stipulation to be signed between the Parties
- On letterhead list any proposed amendments to the Transcript(s)
- Provide the parties with a copy of the Transcript(s), Amendments and Stipulation
C) If you cannot Settle Transcript by 15 Day Notice or Stipulation
- Provide a copy of the original Transcript and Amendments to the Judge or Referee before whom the proceedings were held so as to be deemed settled.
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