Whether involving a cross-appeal (appellants’ interests are adverse to each other) or a concurrent appeal (appeals taken separately but not adverse to each other) from a single order or judgment, Statewide Appellate Practice Rule 1250.9(f) specifies that a Joint Record or Appendix should be prepared. Parties must consult with each other to determine the contents of the Record/Appendix and costs for preparing/filing shall be shared equally.

Specifically, Rule 1250(f)(1)(ii) addresses the cost sharing requirement for cross-appeals, and Rule 1250(f)(2) requires the same for a concurrent appeal from a single order or judgment. Both the Third and Fourth Departments. do not have any rule that differentiates or contradicts this cost sharing requirement (see Third Departments. Rules of Practice Part 850 and Fourth Department Rules of Practice Part 1000, respectively).

Prior to your deadline to file, you must file a letter application seeking permission to file an oversized brief. For the court to make a determination, a draft copy of the proposed brief must be attached to the application. In most cases, the Appellate Division is going to deny such an application and ask that the filer stay within the parameters set forth by the court. However, there are instances where permission to file an oversized brief has been authorized because there are multiple parties involved in the matter. In such cases, there are typically multiple appellants filing opening briefs where a respondent’s application to file an oversized brief could be granted, due to opposing various parties and issues all in one brief. Keep in mind, if your application is granted, you must then file the exact brief approved by the clerk’s office.

Regardless of the circumstances surrounding the request, the applicant will most likely see a decision within a day or two of submission.

Unlike the Appellate Division First through Fourth Divisions and including the Appellate Term-Second Department there is no real expiration date from when an Appellant and/or Appellants file a Notice of Appeal for the Appellate Term-First Department. In the other courts mentioned above, the Appellant has 6 months from the date listed on the Notice of Appeal to file their Record and/or Joint Record on Appeal and Brief. Since the Notice of Appeal is only filed in the lower court for Appellate Term-First Department appeals, the court is unaware of the appeal until a Clerk’s Return form the lower court is obtained.

The use of the “Clerk’s Return” is particular to the practice in the Appellate Term courts. It is necessary because in civil cases the Appellate Term does not have the notice of the appeal until it receives the Clerk’s Return or a party makes a motion directly to the court. The clerk of the lower court assembles and forwards the Return to the Appellate Term. Appended to the executed Clerk’s Return are the notice of appeal; the order or judgment appealed from; and the opinion of the court, if any; all of the pleadings and relevant papers in the courts file; the transcripts, if any, duly settled; and exhibits, if any.

endorse the objections on the Clerk’s Return or the parties can stipulate that the transcript is correct. When no testimony is taken, the Clerk’s Return is prepared upon the filing of the notice of appeal.

The Clerk’s Return was designed to speed up the appellate process from the lower courts, but often the practice falls short. The difficulty in obtaining transcripts leads to delay. Moreover, the time constraints for the perfection of the appeal are not compelling until after the Clerk’s Return is filed. The First Department technically requires the appellant to arrange for filing of the Clerk’s Return within 30 days of filing the notice of appeal. Nevertheless, this rule is usually not enforced, given the unavoidable delay inherent in obtaining the transcript from court reporter.