When filing an appeal in the Appellate Divisions, most attorneys will use the Record on Appeal method, however there are times when the Appellant(s) may choose to file an Appendix with their Appellant’s Brief. When filing an Appendix in the Appellate Division First and Second Departments, the Appellant is responsible for preparing a subpoena in the court of original instance.
The clerk from whom the papers are subpoenaed shall compile the original papers constituting the record on Appeal and cause them to be transmitted to the clerk of the court, together with a certificate listing the papers constituting the Record on Appeal and stating whether all such papers are included in the papers transmitted.
In the First and Second Departments, proof of service of a subpoena upon the clerk of court of original instance requiring all documents constituting the Record on Appeal to be filed with the Clerk of the Appellate Division. In the Third and Fourth Appellate Divisions, a digital copy of the complete Record is required.
There is a fee for filing a subpoena. Since the Appellate Division Second Department encompasses numerous lower courts, and each court has their own fees, the cost can range from $20.00 to $50.00. Those fees usually require a check from the law firm who is filing the subpoena. Since the Appellate Division First Department only handles New York and Bronx County, those fees are $25.00 for New York County and $25.50 for Bronx County.
The Appellate Divisions will not accept an Appendix for filing if there is no Proof that the Record has been subpoenaed at the lower court. The Appendix shall include those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent in their Briefs. Briefs should contain references to the appendix and not to the original record. If it is necessary to refer to the original record, the appendix is incomplete. If the Respondent(s) feels that the Appendix which was filed does not include portions of the Record which they feel is germane to their argument(s), then they can choose to file a Respondent’s Appendix with their Brief.