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.
When should my Appeal be perfected?
- 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?
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?
What will happen if counsel for a respondent does not enter the initial information required under Section 1245.3(d)?
If I am an unrepresented litigant and want to participate in e-filing in a matter, what must I do?
How many hard copies of the record or appendix and brief must be filed with the Court?
I want to file an interim relief application. Will the Court permit the initial submission to be filed and served in hard copy?
What is the next step after I complete the initial entry of information?
Why does the Court require the entry of initial information for e-filing?
May an attorney be exempt from e-filing?
Will the Court permit a motion to be electronically filed?
What am I required to do if I am served with a Notification of Case Number and Other Pertinent Information?
I am an unrepresented litigant: I do not have an attorney. Do I have to participate in e-filing?
Does the Court require hard copies of e-filed records, appendices and briefs?
Does the Court require hard copies of e-filed motions?
E-Filing AD1
What type of cases will be required to be electronically filed in the First Department?
What are the initial documents that must be e-filed with the Court?
- 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?
What are the initial documents that must be e-filed with the Court?
- 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?
- 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?
- 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?
- 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?
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?
- 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?
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?
I just realized that I am not going to be available for an Oral Argument that has already been calendared. Can I adjourn?
How do I settle my Transcripts? (CPLR 5525)
- 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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