Instructions for taking an Appeal to the Appellate Division
Overview of Steps involved in a Civil Appeal to the Appellate Division
In order to appeal to the Appellate Division the appeal must be “taken” and then “Perfected.” The following is a general overview of the steps which must be taken.
Taking the Appeal
1. The order or judgment being appealed from must be entered in the proper Clerk's Office and served with notice of entry upon the adversary to start the time to take an appeal running.
A notice of appeal must be served upon your adversary and filed in the office of the clerk of the court of original instance (where the matter was commenced) within 30 days after service of a copy of the order or judgment appealed from with notice of entry.
2. An appellant who is served with the order/judgment with notice of entry has 30 days to file a Notice of Appeal and Initial Informational Statement with the court of original instance. That would be the County Clerk’s office for appeals from the Supreme Court and in appeals from the Family Court it would be the office of the Clerk of the Family Court. The filing fee is $65.00.
A copy of those two documents must also be sent to the attorney for all parties involved or the parties themselves, should they be pro se.
-In the First Department if an order or judgment is appealed as of right, the notice of appeal must be served and filed, together with an informational statement and a copy of the order or judgment appealed from. ([22 NYCRR] 1250.4[c]).
-In the Second Department an additional copy of the notice of appeal must be filed, to which must be affixed an informational statement on a form by the court, a copy of the order or judgment appealed from, and a copy of the opinion or decision, if any (22 NYCRR 1250.3[a]; 670.3[a]).
-Cross appellants must file all the papers required by § 1250.3(a) of the Practice Rules of the Appellate Division (22 NYCRR 1250.3[a]).
3. Special Rules for Family Court Appeals
Appeals to the Appellate Division from the Family Court are governed by Article 11 of the Family Court Act with its own unique set of rules. This is because CPLR §5702 provides that appeals to the appellate division may be taken from any court of original instance, other than the supreme court or a county court, in accordance with the statute governing practice in that court.
The provisions of the civil practice law and rules apply to Family Court appeals only “where appropriate” to appeals under Article 11.Family Court Act § 1118. Unlike an appeal under the CPLR, an appeal under Article 11 of the Family Court Act must be taken no later than 30 days after the service by a party or the child's attorney upon the appellant of any order from which the appeal is taken, 30 days from receipt of the order by the appellant in court or 35 days from the mailing of the order to the appellant by the clerk of the court, whichever is earliest. Family Court Act § 1113.
Appeals from Family Court orders are different from appeals of other civil orders which are governed by CPLR 5513 (a) because Family Court Act § 1113 does not state that service of a notice of entry is necessary to start the time to appeal running. Service of the Family Court order alone, without notice of entry, is sufficient to start the appeal time running. Matter of Miller v Mace, 74 A.D.3d 1442, 903 N.Y.S.2d 571 ( 3 Dept., 2010).
4. Before Perfecting the Appeal the Appeal the Appellant Must Settle the Transcripts
Appellants and Respondents Proposed Objections and Amendments
Within 15 days after receiving the transcript from the court reporter or from any other source, the appellant must make any proposed amendments and serve them and a copy of the transcript upon the respondent. (CPLR 5525(c)(1))
Within 15 days after the service of the appellants proposed amendment the respondent must make any proposed amendments or objections to the proposed amendments of the appellant and serve them upon the appellant. (CPLR 5525(c)(1))
At any time thereafter and on at least 4 days' notice to the adverse party, the transcript and the proposed amendments and objections must be submitted for settlement to the judge or referee before whom the proceedings were had if the parties cannot agree on the amendments to the transcript. (CPLR 5525(c)(1))
The original of the transcript must be corrected by the appellant in accordance with the agreement of the parties or the direction of the court and its correctness must be certified on it by the parties or the judge or referee before whom the proceedings were had. (CPLR 5525(c)(1))
When he serves his brief upon the respondent the appellant must also serve a conformed copy of the transcript or deposit it in the office of the clerk of the court of original instance who must make it available to respondent. (CPLR 5525(c)(1))
No amendments or objections
If the appellant has timely proposed amendments and served them with a copy of the transcript on respondent, and no amendments or objections are proposed by the respondent within the time limited above, the transcript, certified as correct by the court reporter, together with appellant's proposed amendments, shall be deemed correct without the necessity of a stipulation by the parties certifying to its correctness or the settlement of the transcript by the judge or referee. (CPLR 5525(c)(2))
The appellant must affix to the transcript an affirmation, certifying to his compliance with the time limitation, the service of the notice referred to below and the respondent's failure to propose amendments or objections within the time prescribed. (CPLR 5525(c)(2))
Service of Notice of Settlement by Appellant
The Appellant must serve on the respondent together with a copy of the transcript and the proposed amendments, a notice of settlement containing a specific reference to CPLR 5525 (c), and stating that if respondent fails to propose amendments or objections within the time limited by CPLR 5525(c)(1), the provisions of CPLR 5525(c)(1) shall apply. (CPLR 5525(c)(3))
Perfecting the Appeal
5. Once the Notice of Appeal is filed, the appellant has six months from the date on the document to perfect the appeal (see Rule 1250.9 [a]). The Court rules contain a provision by which the six-month period to perfect the appeal may be extended (see Rule 1250.9 [b]).
6. To perfect the appeal, the appellant must provide the court with a Record on Appeal and an Appellant's Brief.
Methods of Providing the Record
Unless the court directs that a cause be perfected in a particular manner, an appellant may elect to perfect a cause by the reproduced full record method (CPLR 5528 [a] ); by the appendix method (CPLR 5528 [a] ); by the agreed statement in lieu of record method (CPLR 5527); or, where authorized by statute or this Part or order of the court, on the original record. (22 NYCRR 1250.5 (a))
Reproduced Full Record Method.
If the appellant elects to proceed on a reproduced full record on appeal, the record shall be printed or otherwise reproduced as provided in sections 1250.6 and 1250.7 of this Part. (22 NYCRR 1250.b ())
If the appellant elects to proceed by the appendix method, the appendix shall be printed or otherwise reproduced as provided in sections 1250.6 and 1250.7 of this Part. (22 NYCRR 1250.5 (c))
Agreed Statement in Lieu of Record Method.
If the appellant elects to proceed by the agreed statement in lieu of record method, the statement shall be reproduced as a joint appendix as provided in sections 1250.6 and 1250.7 of this Part. The statement required by CPLR 553l shall be appended. (22 NYCRR 1250.5 (d))
In the First, Second and Fourth Judicial Departments, the following causes may be perfected upon the original record, including a properly settled transcript of the trial or hearing, if any: (1) appeals from the Family Court; …and (10) causes where permission to proceed upon the original record has been authorized by the court. (22 NYCRR 1250.5 (d))
In the Third Department the record must be stipulated. The Appellate Divisions have adopted electronic filing rules which may supercede these rules.
(1) A cover which shall contain the title of the cause on the upper portion, and, on the lower portion, the names, addresses, telephone numbers and email addresses of the attorneys, the county clerk's index or file number, the docket or other identifying number or numbers used in the court from which the appeal is taken, and the superior court information or indictment number;
(2) The statement required by CPLR 553l;
(3) A table of contents which shall list and briefly describe each document included in the record. The part of the table relating to the transcript of testimony shall separately list each witness and the page at which direct, cross, redirect and re-cross examinations begin. The part of the table relating to exhibits shall concisely indicate the nature or contents of each 17 exhibit and the page in the record where it is reproduced and where it is admitted into evidence;
(4) The notice of appeal or order of transfer, judgment or order appealed from, judgment roll, corrected transcript or statement in lieu thereof, exhibits, and any opinion or decision in the cause;
CPLR 5017 (b) provides that the judgment-roll shall contain the summons, pleadings, admissions, each judgment and each order involving the merits or necessarily affecting the final judgment. If the judgment was taken by default, it shall also contain the proof required by subdivision (f) of section 3215 and the result of any assessment, account or reference under subdivision (b) of section 3215. If a trial was had, it shall also contain the verdict or decision, any tender or offer made pursuant to rules 3219, 3220 or 3221, and any transcript of proceedings then on file. If any appeal was taken, it shall also contain the determination and opinion of each appellate court and the papers on which each appeal was heard. In an action to recover a chattel, it shall also contain the sheriff's return. In an action on submitted facts under rule 3222, the judgment-roll shall consist of the case, submission, affidavit, each judgment and each order necessarily affecting the final judgment. The judgment-roll of a judgment by confession under section 3218 shall consist of the affidavit and a copy of the judgment.
(5) An affirmation, certification, stipulation or order, settling the transcript pursuant to CPLR 5525;
(6) A stipulation or order dispensing with reproducing exhibits, as provided in subdivision (c).
(7) The appropriate certification, stipulation, or settlement order pursuant to subdivision (g). (See 22 NYCRR 1250.7(b)) 8. Special Rules for Family Court Appeals
Unlike appeals from Supreme Court, in appeals under the Family Court Act, a printed case on appeal or a printed brief is not required. Family Court Act § 1116. WhileFamily Court Act § 1116 dispenses with the requirement that the record on appeal be printed, it does not excuse compliance with CPLR 5525 (a) which requires the transcription of the record. CPLR 5525 (a) applies to Family Court appeals pursuant to Article 11. (Matter of Baiko v Baiko, 141 A.D.2d 635, 530 N.Y.S.2d 7 (2 Dept., 1988)).
In addition, the Practice Rules of the Appellate Division, 22 NYCRR Part 1250, specify that in the First, Second and Fourth Judicial Departments, appeals from the Family Court may be perfected upon the original record, including a properly settled transcript of the trial or hearing, if any. 22 NYCRR 1250.5 (e)(1). In addition, the Fourth Department requires the record on an e-filed Family Court appeal to include an appendix. (See 22 NYCRR 1000.17 (c)(2)). However, the Local Rules of Practice of the Appellate Division, Third Department provide that where the perfection of a cause by the original record method has been authorized by statute or order of the court, the appellant's brief must contain an appendix which must be printed or reproduced as provided in 22 NYCRR §§1250.6 and 1250.7 of the Practice Rules of the Appellate Division. 22 NYCRR 850.5. This rule appears to be inconsistent with Family Court Act § 1116.
The cover shall set forth the title of the action or proceeding. The upper right-hand section shall contain a notation stating: whether the cause is to be argued or submitted; if it is to be argued, the time actually required for the argument; and the name of the attorney who will argue. The lower right-hand section shall contain the name, address, telephone number and email address of the attorney filing the brief and shall indicate whom the attorney represents. (22 NYCRR 1250.8(a))
The appellant’s brief shall include, in the following order:
(1) a table of contents, which shall include (i) a list of point headings and (ii) the contents of the appendix, if it is not bound separately, with references to the initial page of each document included and of the direct, cross and redirect examination of each witness;
(2) a table of cases (alphabetically arranged), statutes and other authorities, indicating the pages of the brief where they are cited; (3) a concise statement, not exceeding two pages, of the questions involved, set forth separately and followed immediately by the answer, if any, of the court from which the appeal is taken;
(4) a concise statement of the nature of the case and of the facts which should be known to determine the questions involved, with appropriate citations to the reproduced record, appendix, original record or agreed statement in lieu of record; (5) the argument for the appellant, which shall be divided into points by appropriate headings distinctively printed;
(6) a statement certifying compliance with printing requirements under this Part, on a form approved by the court, as set forth in subdivision (j);
(7) in the First and Second Judicial Departments, the appellant’s brief shall include as an addendum the statement required by CPLR 5531;
(8) in the First and Second Judicial Departments, in any civil cause permitted to be heard on the original record, the appellant’s brief shall include: (i) a copy of the order or judgment appealed from and the decision, if any; (ii) a copy of the opinion and findings, if any, of a hearing officer and the determination and decision of any administrative department, board or agency; and (iii) a copy of the notice of appeal or order transferring the proceeding to this court. (22 NYCRR 1250.8(b))
The respondent’s brief shall conform to the requirements of subdivision (b), except that a counterstatement of the questions involved or a counterstatement of the nature and facts of the case shall be included only if the respondent disagrees with the statement of the appellant. (22 NYCRR 1250.8(c))
Within ten days of service of respondent's brief, the appellant may but is not required to file an original and six copies of a reply brief with proof of service upon all parties.
Any reply brief of the appellant or cross appellant shall conform to the requirements of subdivision (b), without repetition. (22 NYCRR 1250.8(d))
An appellant’s reply in a cross appeal shall include the points of argument in response to the cross appeal.
Absent leave of the court, sur-reply briefs shall not be permitted. (22 NYCRR 1250.8(e)
Similar to the extensions available to an appellant in need of additional time to perfect their appeals, the rules contain a provision by which respondents may extend their time to file their responsive briefs (see Rule 1250.9 [g]).
Oral argument is permitted and should be requested on the cover of Appellant's Brief. If oral argument time is not requested, the appeal will be submitted to the Court on all the papers filed.