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.