ISSUE 1 │ VOL. 5 │SPRING 2017

FILING FEES OF THE NEW YORK STATE AND FEDERAL APPELLATE COURTS

MARK VIRAG | Senior Appellate Consultant | PHP
When perfecting a Record on Appeal/Appendix and Appellant’s Brief in any one of the four New York State Appellate Division Departments, the Appellant must submit a filing fee check in the sum of $315 along with the documents. A filing fee of the same amount is also required when the Appellant files a Record on Appeal/Appendix and Appellant’s Brief at the New York State Court of Appeals level. This $315 filing fee is in addition to the $65 fee that is required when Appellants file a Notice of Appeal for a matter to be perfected at the Appellate Division or the Court of Appeals level.

When an Appellant perfects an appeal at the United States Court of Appeals for the Second Circuit, however, the Court requires a docket fee of $500.00 (plus a $5 processing fee) to accompany the filing of the Notice of Appeal with the District Court. No additional filing fee is necessary when the Appellant files the Joint Appendix and Appellant’s Brief.

All the state and federal filing fees described above can be waived by filing a motion for in forma pauperis status.

Remember that these filing fees do not apply to supplemental or answering documents such as Respondent’s/Appellee’s Briefs, Reply Briefs, Supplemental Records/Appendices and Respondent’s Appendices.

APPROPRIATE METHODS OF AMENDING ONE’S APPELLATE FILINGS (SUPPLEMENTAL RECORDS/APPENDICES VS. TIP-INS)
ERIC J. KUPERMAN, ESQ.
Executive Vice President of Sales | PHP

In both Appellate Division, First and Second Departments, one may perfect an appeal utilizing either a Record on Appeal or an Appendix. When an Appellant files/serves an Appendix, the Respondent may file a Respondent’s Appendix as of right. The reason may be that the Appellant failed to include certain documents which the Respondent deems to be relevant to the appeal and which were, in fact, considered by the Trial Court Judge.

In the case of a Record on Appeal, however, if the Respondent believes that documents were omitted by the Appellant, the options are more limited. If he brings it to the Appellant’s attention and the Appellant consents, the parties may stipulate to the filing of a Supplemental Record. If the Appellant refuses to consent, since a Record on Appeal is presumably complete in the eyes of the Court, the Respondent will be forced to file a motion for permission to file a Supplemental Record. If granted by the Appellate Division, the Respondent may file a Supplemental Record. If denied, no Supplemental Record may be filed.

It should be noted that in instances where only a few pages were omitted from a Record on Appeal or Appendix, if the parties agree, the Appellant may “Tip-In” the appropriate pages to the previously filed Record. In this case, PrintingHouse Press would physically travel to AD1 or AD2 and insert the appropriate pages into the Record or Appendix along with a revised Table of Contents identifying the changed pages. Of course, the adversary is served with the pages being tipped into the previously filed Record. This is an extremely low-cost and expeditious solution which is often used if the quantity of pages to be added does not warrant a Supplemental Record.

The bottom line is that both the Court and the parties to the appeal want a complete picture to be painted for the Appellate Division so that the Court may properly consider the arguments and the facts on appeal. To that end, very often, as long as the parties are on the same page, amending and/or supplementing one’s Record/Appendix can be a smooth process.

RECORDS ON APPEAL IN THE APPELLATE TERM, SECOND DEPARTMENT

PAUL LAMAR | Vice President of Appellate Services | PHP
One of the most frequent questions I receive from attorneys filing an appeal in the Appellate Term, Second Department (hereinafter “AT2”) is, “When do I need to file my Record on Appeal?” The answer normally produces several follow-up questions since there is no need to file a Record on Appeal in AT2 [22 NYCRR Part 731.1(c)]. In most cases, the Appellant is required only to file an Appellant’s Brief accompanied by the statement pursuant to CPLR § 5531 (hereinafter “5531”).

Similar to most appellate courts, the Notice of Appeal is filed at the court of original instance. Unlike other courts, however, the Clerk in the lower court will then assemble the original papers (including the settlement of the transcript when warranted), issue a Clerk’s return and send the entire file to the Appellate Term, Second Department.

The Appellant has ninety (90) days from the date of receipt of the original papers and Clerk’s return to file his/her brief and 5531. An original plus five (5) copies are filed with AT2 and one (1) copy is mailed to each service. There is no filing fee required.

There are instances when the Appellate Term will allow the Appellant to attach relevant portions of the original papers (i.e., the Record) to the back of their brief. The court prefers that those additional documents are not too voluminous since it has access to those documents from having had the original papers transferred from the lower court.

PETITION FOR A WRIT OF CERTIORARI: BOOKLET FORMAT, 8 1/2 X 11-INCH PAPER FORMAT OR 6 1/8 X 9 1/4-INCH FORMAT

MARIA ANDRADES | Director of Operations | PHP
Simply because one did not have poor person relief granted in the lower courts does not necessarily mean that one cannot apply for similar relief at the Supreme Court of the United States.

Filing an appeal to the Supreme Court of the United States may not be as complicated or as expensive as one might think. Every document filed with the Court shall be prepared in 6 1/8 x 9 1/4-inch booklet format using a standard typesetting process, except where permission is granted, pursuant to Rule 33, to submit a document on 8 1/2 x 11-inch paper.

Even if one did not file in forma pauperis in the court of original instance, the Supreme Court will accept the filing of the Petition for a Writ of Certiorari in an 8 1/2 x 11-inch Paper Format, together with a motion and an Affidavit of Declaration in Support of a Motion for Leave to File in Forma Pauperis. In that instance, only 10 copies of the Petition need to be filed, as opposed to 40 copies of the 6 1/8 x 9 1/4-inch format.

HOW TO DETERMINE THE DEADLINE TO FILE AN APPENDIX AND BRIEF IN THE SECOND CIRCUIT

JOHN MCGORTY | Executive Vice President of Business Development | PHP
In the Second Circuit, you must file a scheduling notification. Essentially, you are setting your own deadline to file the Appendix and Brief. However, there are certain limitations and guidelines which must be followed.

Within 14 days of the date the Appellant either receives the completed transcript or the date the Appellant is required to file the certificate on Form D (or Form D-P for pro se Appellants) indicating that no transcript will be ordered, the Court must be notified in writing of the date by which the Appellant’s Brief will be filed. Unless the case involves a voluminous transcript, the filing date must be within 91 days of receipt of the completed transcript. The Appellant’s proposed filing date will be so-ordered unless the Court determines that the selected filing date is unacceptable.