ISSUE 1 │ VOL. 2 │SPRING 2014
Looking Forward in 2014:
All About You
JOHN FARRELL | President | PHP
As we enter 2014 we want to kindly express our appreciation to our clients who have contributed to the ongoing success of PrintingHouse Press. Without your continued support, we would not be able to repeatedly invest in the new technologies that enable us to provide you with first-class service. We have big ambitions for 2014 and here is some of what you can expect in the months ahead.
Let’s start with getting to know you better. At PrintingHouse Press, exceptional client support constitutes one of our core values, and we pride ourselves on being trusted advisors to our clients and not just another vendor. We consistently aim to distinguish ourselves from the competition through strong personal relationships, and our level of service is one of the very reasons clients continue to work with us. To better reach and serve our clients we recently partnered with The New York State Trial Lawyers Association. With countless Association events and offered CLE classes planned, we will look forward to meeting you personally with the hopes of not only establishing a deeper business relationship, but with the anticipation of gleaning honest input from you on how we can improve on our services. If we happen to find out that you are an avid Yankee or Met fan, have a penchant for attending the Theatre, or enjoy a round of golf – then so much the better. Having fun sure beats working all the time.
PrintingHouse Press will also be releasing a newly revamped website specifically designed to provide our clients with even better access to all the tools you need to perfect your appeal, while at the same time tracking every inch of its progress all the way to oral argument. This process has been a collaborative effort with input from many of you and we have created a site that will provide support, knowledge, speed and expertise that embodies the valuable recommendations of our clients. We have been busy preparing for this launch and will be excited to unveil PrintingHouse Press’ new online presence during the month of March.
We have committed that this year will be the year that we strive to know and serve you better; and since nothing is more vital than the interests of our clients, we will make that happen for you throughout 2014. Again, thank you for your continued support and we wish you a healthy and prosperous year.
How to Perfect an Appeal in the New York State Appellate Division, First and Second Departments
ERIC J. KUPERMAN, ESQ.
Executive Vice President of Sales | PHP
Whether a trial resulted in an unfavorable Judgment or an interlocutory motion was decided by an Order adverse to one’s client’s interest (the “Order” or “Judgment”), one has the right to appeal to the Appellate Division. Whether one appeals to the First or Second Department (“AD1” or “AD2”) depends upon the venue of the underlying litigation. Once the Order or Judgment is entered, it is to be served on all parties with Notice of Entry. Typically, the attorney in whose favor the Order was decided is the one to serve it with Notice of Entry on the other parties, but there is no such obligation.
Once the Order is served with Notice of Entry, the clock starts running with respect to the Appellant’s deadline to file a Notice of Appeal. Pursuant to CPLR 5513, the Appellant has 30 days from service of the Order with Notice of Entry to file a Notice of Appeal in the Court of Original Instance. It is important to note that the timeliness of the filing of the Notice of Appeal is a jurisdictional requirement. Except in rare instances (such as the death of counsel), an untimely Notice of Appeal will result in the dismissal of the appeal for lack of jurisdiction. The only other instance in which one would be permitted to file a late Notice of Appeal is if, in an extremely rare instance, a motion to file it Nunc Pro Tunc were granted. Once the Notice of Appeal is filed (accompanied by a Pre-Argument Statement in AD1; and by a RADI – Request for Appellate Division Intervention – in AD2) together with a $65 filing fee and copy of the Order with Notice of Entry, the Appellant has nine (9) months (in AD1) and six (6) months (in AD2) from the date on the
Notice of Appeal to perfect (e.g. filing the Record on Appeal and Brief with the Appellate Division). Practically speaking, while AD1 utilizes the lower court Index Number, AD2 assigns its own Docket Number to the appeal for its duration in AD2.
In assembling the documents which comprise the Record on Appeal for an appeal from motion practice, the Appellant should include the following: Notice of Appeal, Pre-Argument Statement (AD1) or Statement Pursuant to CPLR § 5531 (AD2), Order/Judgment appealed from with Notice of Entry, Motion, Opposition and Reply papers (all with annexed exhibits), Trial Transcript (if it exists) and Oral Argument Transcript (if it exists). Once the documents are forwarded to the printer, a proof copy of the Record is assembled, complete with a Table of Contents as well as proposed covers for both the Record and Appellant’s Brief. The Record should be fully compliant with the Appellate Division’s requirements… Typically, Memoranda of Law are not properly in the Record unless they are independently relevant to some material issue other than the law (for example, an admission in the Statement of Facts).
Parenthetically, it should be noted that one may also perfect an appeal on the “Appendix Method.” The Appendix is a document filed in lieu of a Record and is, essentially, an abbreviated Record. It will most likely not contain every last document which was considered by the Court of Original Instance, but rather a selection of those documents which are likely to be relied upon by all parties Because it is sometimes impossible to determine what a Respondent would need, if a document is inadvertently omitted, the Respondent has a right to file a Respondent’s Appendix without requesting the court’s permission. Where an appeal is perfected on the Appendix method, the Appellant must subpoena the lower court Record up to the Appellate Division so that if the court wishes to reference a document not contained within the Appendix, it may do so when it considers the merits of the appeal.
In an appeal from a verdict after trial, the Record on Appeal/Appendix consists of the Trial Transcript, all exhibits admitted into evidence, the Pleadings, the Judgment Roll and all Notices of Appeal filed with respect to the Judgment. The Trial Transcript must be settled, which means that either the parties must stipulate to its correctness or it must be sent out with a 15-day Notice of Settlement. The other parties to the appeal have 15 days to respond with corrections, if any. Alternatively, once 15 days have passed, the Appellant includes an Affirmation of Compliance in the Record/Appendix (stating that the transcript has been settled). In the rare instances that the parties cannot agree on the correctness of a transcript, the trial judge is called upon to settle the transcript.
Typically, there will be more citations to the Record/Appendix within the Statement of Facts portion of the brief; the reason being that the Record/Appendix is a compilation of facts with respect to what has transpired in the case. Once finished, the attorney forwards the brief, along with the $315.00 filing fee (payable to the Appellate Division), and the printer finalizes the entire package for purposes of perfecting the appeal. To wit, the requisite number of Records/Appendices and Briefs are prepared for both service and filing (AD1- Serve 2, File 8 plus e-service/e-filing; AD2- Serve 2, File 9) and the printer completes both on behalf of the Attorney of With respect to perfecting an AD1 appeal, there are ten (10) term filing deadlines by which one may perfect an appeal within his/her nine (9) month window. Once the appeal is perfected, AD1’s calendar sets subsequent due dates for the Respondent’s and Reply Briefs that follow. Once an AD2 appeal is perfected, however, the Respondent has 30 days to file/serve a Respondent’s Brief and then the Appellant thereafter has ten (10) days within which to file/serve his/her Reply Brief (again, assuming personal service). It is at this point that the appeal is “fully briefed.” All parties await a date on which the Appellate Division will hear the case for argument. Your printer will generally provide that argument date to you. The time varies greatly between when an appeal is fully briefed and when an argument date is assigned by the court. In AD1, since appeals are perfected for particular Terms, argument will occur within that Term (unless it is adjourned to Record to the appeal. a subsequent Term). As to AD2, unfortunately, there is no real way to predict, but typically an argument date is provided within a few months of fully briefed matters. Once argued, a decision is usually forthcoming within approximately six (6) to ten (10) weeks.
1 The First Department is comprised of Supreme Court, Bronx and New York Counties. The Second Department is comprised of the following Supreme Court Counties: Dutchess, Kings, Nassau, Orange, Putnam, Queens, Richmond, Rockland, Suffolk and Westchester.
2 If the Order is served by mail then this time is extended to 35 days from the date of mailing. For purposes of this article, we will assume personal service was made throughout.
3 Headings must be placed on each document which match their respective entries in the Table of Contents. Page numbers are assigned so that the parties may cite with specificity to the Record on Appeal.
Appellate Division, Second Department: When Must Color Photos Be Included in a Record on Appeal?
JOHN MCGORTY | Executive Vice President of Business Development | PHP
On a weekly basis, we are confronted with questions surrounding rules and procedures relating to the inclusion of color photos in a Record on Appeal. The rule is quite simple here: if the photos were filed in the lower Court in color, then the Second Department requires them to be filed in color as well. However, there are instances when these photos are no longer available. In these cases, a simple letter stating that the photos are no longer available must be presented at the time the Record on Appeal and Appellant’s Brief are filed. Even if black and white photos
were filed in the lower Court, the Appellant must provide a letter stating that no color photos exist or that color photos were not filed in the Court below.
Prior to perfecting an appeal (in the Second Department) where color photos have been filed in the Court below, it is always best to contact opposing counsel
to try and obtain the color versions. In an ongoing appeal, the Respondent came
to me after having been served with a Record on Appeal that did not contain the color version of the exhibits he had filed with the Court below. In order to allow the Appellant to remove the black and white photos and replace them with the color
version, this appeal had to be adjourned for 60 days from the date the Respondent’s Brief was originally due. Furthermore, the cost associated with amending the Record, or filing a Supplemental Record, will fall back on the Appellant.
Therefore, it is best to address and resolve any potential issue with respect to color photos prior to perfecting the appeal.
*Note: the First Department does not require color photos regardless of whether they were filed in color in the Court below.
Should Transcripts of Oral Arguments be Included in The Record on Appeal?
JONATHAN WALLACH ESQ. | Senior Appellate Counsel | PHP
One of the more frequent questions I get from clients is whether it is proper to include the transcripts of oral argument in the record on appeal or appendix in the New York State Appellate Divisions. The short answer is no . . . and yes. The court will not reject a document that includes the oral argument transcript, nor will they force you to include it if your adversary makes a motion to strike your record or appendix because it is not included.
The rules truly offer no guidance on this issue. However, a discussion with the Clerk of one of the Appellate Divisions was instructive. When asked, the Clerk stated unequivocally that the oral argument transcript does NOT belong in the record or appendix. The reasoning went as follows: nothing the attorney says provides the kind of factual evidentiary support that the record on appeal or appendix is supposed to contain. Moreover, anything of import that the judge says on the record will presumably be restated in his or her decision.
That being said, there is no rule that prevents an oral argument transcript’s inclusion, and many feel, whether wrongly or rightly, that if it is available, the record on appeal or appendix will not be complete without it.