FREQUENTLY ASKED QUESTIONS

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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.

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. AD1 has a deadline per term.

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.

· All Appellate Division courts have a 6-month rule to perfect.

When perfecting an appeal in one of the State Courts is a filing fee required?

Yes. A filing fee of $315.00 is required to perfect the appeal at all Appellate Divisions. There is a transaction fee of $9.42 when filing electronically. 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?

The Lower Court record must be subpoenaed from the County of original instance only if filing in AD1 and AD2. When perfecting an appeal on the Appendix method in AD3 and AD4 one copy of the full record must be filed simultaneously. Be sure to contact your PrintingHouse Press Sales Consultant concerning 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 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.

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.

I want to file an interim relief application. Will the Court permit the initial submission to be filed and served in hard copy?

All Interim relief applications must be done electronically first.  It must be served in hard copy if the 20 days from registration have not elapsed or if it’s an AD2 portal case.  No need to file hard copies.

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?

No hard copy of an e-filed motion has to be filed.

E-FILING AD1

What type of cases will be required to be electronically filed in the First Department?

All appeals in filing in the first department must be e-filed.

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:

  1. A copy of the notice of appeal;
  2. A copy of the order or judgment appealed from; and
  3. 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.

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:

  1. A copy of the notice of appeal;
  2. A copy of the order or judgment appealed from; and
  3. A copy of the informational statement.

E-FILING AD3

What type of cases will be required to be electronically filed in the Third Department?

As of January 1, 2023, all matters in the Third Judicial Department are subject to mandatory E-Filing except for:

  • Any appeal in which the appellant or the petitioner perfecting the proceeding is exempt from E-Filing pursuant to 22 NYCRR 1245.4 (a)
  • Professional Matters

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:

  1. A copy of the notice of appeal; and
  2. A copy of the order or judgment appealed from.

No information statement is required in this court.

E-FILING AD4

What type of cases will be required to be electronically filed in the Fourth Department?

All matters are e-filed.

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:

  1. A copy of the notice of appeal; and
  2. 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

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.

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.

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 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

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.

How do I extend my time to Serve and File?

AD1 Records Appendices:

  • Two letter applications amounting to 90 days
  • Motion

AD1 Briefs:

  • Personal Application by Attorney
  • Stipulation among Parties
  • Motion to the Court

AD2 Records Appendices and Briefs:

  • Two letter requests amounting to 90 days
  • By Stipulation (So Ordered for Record/Appendix)

AT1:

  • By Stipulation
  • By Motion

AT2:

  • Two letter requests amounting to 90 days
  • By Stipulation
  • By Motion

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

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.

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. 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.