How to Handle Illegible Documents When Perfecting an Appeal in AD1 & AD2

There may be an occasion when preparing a Record on Appeal that a document is illegible and therefore unhelpful to your appeal. The easy answer is to locate legible documents that came before the lower court that are identical to the illegible documents. However, if this is not possible then we must proceed further.

At the Appellate Division, First Department, reason and practicability appear to be the rule. It would appear that, without the court’s permission, you may retype the illegible document(s) or the illegible portions and attach the retyped, legible version to the illegible originals. In addition, a certification must be attached to the retyped legible page stating that this is a retyped version of the illegible document for the purposes of clarification. However, if you are concerned that your adversary will raise objections and dispute the contents of the retyped page you may, with the court’s permission, submit retyped legible documents under separate cover with a stipulation attached signed by the parties to the appeal.

However, at the Appellate Division, Second Department the solution is less straightforward. The Second Department wants the documents exactly as they were submitted to the lower court—legible or illegible. The only possible option is for the party possessing illegible documents to proceed by motion to the Second Department requesting that legible documents accompany the illegible documents. If the motion is denied then the illegible documents must be submitted.