Instructions for Taking an Appeal Frequently Asked Questions
Taking an Appeal to the Appellate Division, Frequently Asked Questions [Adapted from the websites of the New York Appellate Divisions. (22 NYCRR) (Last accessed June 20, 2021)]
Q: What rules govern practice in the Appellate Division? A: The Practice Rules of the Appellate Division, ( http://www.courts.state.ny.us/ad3/Statewide%20Practice%20Rules%20Part%201250.pdf ) ([22 NYCRR] Part 1250, effective September 17, 2018); and the local Rules of Practice of each of the Appellate Divisions, (First Department ) http://www.courts.state.ny.us/courts/ad1/Practice&Procedures/rules.shtml;(Second Department) http://www.courts.state.ny.us/courts/ad2/pdf/Local_Rules.pdf ;(Third Department )http://www.nycourts.gov/ad3/RulesOfPracticePart850.pdf ; (Fourth Department) https://www.nycourts.gov/courts/ad4/Clerk/Part1000-LocalPracticeRules.pdf as well as the Electronic Filing Rules of the Appellate Division ([22 NYCRR Part 1245) , which became effective on March 1, 2018. https://www.nycourts.gov/courts/AD2/efiling/efilingrules.pdf
Q: How do I take an appeal as of right? A: Some orders and judgments are appealable as of right, others only by permission. Appeals as of right are taken by serving and filing a notice of appeal (CPLR 5515). In a civil case pending in the Supreme Court, a notice of appeal must be served and filed in the office of the clerk of the court of original instance within 30 days after service upon the appellant of a copy of the order or judgment to be appealed with written notice of its entry, or, if the appellant has served the order or judgment with notice of its entry, within 30 days of that service (CPLR 5513[a]). Q: How do I get permission to appeal? A. Permission to appeal is obtained by making a motion for leave to appeal (CPLR 5516); ([22 NYCRR] § 1250.4[c]). A motion for permission to appeal must be made within the same time limits and, if permission to appeal has already been denied by order of the court whose determination is sought to be reviewed, within 30 days after service of that order and notice of its entry (CPLR 5513[b]).
Q. How do I take an appeal from the Family Court? A. An appeal from the Family Court must be taken (1) within 30 days after service by a party or a law guardian upon the appellant of the order sought to be reviewed, (2) within 30 days after receipt by the appellant of a copy of the order in open court, or (3) within 35 days after mailing of the order to the appellant by the clerk, whichever is earliest (Family Ct Act § 1113).
Q: Where and how do I serve and file a notice of appeal? A: An appeal as of right is taken by serving a notice of appeal on the adverse party and filing it in the office where the judgment or order of the court of original instance (where the action was commenced is entered (see CPLR 5515 ). The County Clerk is the clerk of Supreme and County Courts. A notice of appeal from a Family Court or Surrogate’s Court matter should be filed with the clerk of that court. 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]).
Q: Where do I file a notice of appeal? A: 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. The filing fee is $65.00.
Q: When a notice of cross appeal is filed in the court of original instance, is it necessary to file a Request for Appellate Division Intervention? A: Yes. 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]).
Q: Where do I file a motion for leave (permission) to appeal? A: A motion for leave to appeal is filed in the Appellate Division. The motion must include a copy of the order or judgment and decision, if any, of the court below, a statement of the ground of the alleged errors and if leave was denied at the lower court, a copy of the order denying leave to appeal ([22 NYCRR] 1250.4[c]).
Q: After I file a notice of appeal, what must I do to have my matter heard and decided? A: After an appeal is taken by filing a notice of appeal, it must be “perfected.” Perfecting an appeal means preparing and filing the requisite documents to place the case on the court’s calendar.
Q: How do I perfect an appeal? A: There are several different methods by which appeals may be perfected; they are described in § 1250.5 of the Practice Rules of the Appellate Division (22 NYCRR 1250.5). The two most common are the full record method and the appendix method.
Q: How much time do I have to perfect my appeal from the Supreme Court? A: An appeal must be perfected within six months of the date of the notice of appeal or order granting leave to appeal unless that time is extended by the court (22 NYCRR 1250.9[a]).
Q: How much time do I have to perfect my family court appeal? A: Family Court appeals in which the Court has assigned counsel must be perfected within 60 days of receipt of the transcript (see Family Ct Act § 1121 ).
Q: If I run out of time to perfect my appeal or to file a brief, how can I ask for more? A: A party who needs more time to perfect or to file a brief must obtain an enlargement of time to do so. The procedure is described in § 1250.9[b] of the Practice Rules of the Appellate Division (22 NYCRR 1250.9[b]). An initial extension up to 60 days may be obtained by stipulation of the parties or the appellant may apply by letter, on notice to all parties. An appellant may apply by letter, on notice to all parties, for a second extension up to an additional 30 days. Thereafter, any further request for an extension of time to perfect must be made by motion. The initial request must be made before the six-month perfection period expires and the second request must be made before the initial extension expires.
Q: What is the difference between the full record method and the appendix method of perfecting an appeal? A: The full record method involves the reproduction of all the materials specified in CPLR 5526 that constitute the record. It is used where the issues to be raised on the appeal require the examination and consideration of all those materials. The appendix method, on the other hand, is used where the issues to be raised on the appeal are limited and do not require examination of all the materials constituting the record; material that is not germane to the issues to be raised may be omitted from the printed appendix (CPLR 5528[a]; 22 NYCRR 1250.7[d]).
Q: In what type of matters is a party allowed to proceed on the original record? A: Rule 1250.5(e) states that matters which may be perfected on the original record. An appeal from the family court may proceed on the original record.
Q: When is an appellant required to subpoena a certified copy of the original record on appeal from the County Clerk? A: A party perfecting on the appendix method or on the original record is required to serve a subpoena upon the clerk of the court of original instance) requiring all documents constituting the record on appeal to be filed with the Clerk of the Appellate Division.
Q: Is there a required format for a full record or appendix on appeal? What should I include in a full record or appendix? A: Yes. Rule 1250.7 sets forth the form and content of records and appendices.
Q: Is there a required format for a brief? A: Yes. Rule 1250.8 sets forth the form and content requirements for an appellant’s brief, a respondent’s brief and a reply brief. Computer-generated appellant’s and respondent’s brief shall not exceed 14,000 words and reply and amicus curiae briefs cannot exceed 7,000 words.
Q. What must be in the Record on Appeal (22 NYCRR 1250.7)? A: 22 NYCRR 1250.7 (b) outlines the contents of the record on appeal. a. Memoranda of law and oral argument on motions constitute legal argument and generally are not included in the record on appeal. They may be included in the record on appeal in some circumstances, however, such as where preservation for review is at issue (see e.g., Matter of Lloyd v Town of Greece Zoning Bd. of Appeals [appeal No. 1], 292 AD2d 818). Form of the record. a. Compliance with the CPLR. Briefs, appendices and reproduced full records shall comply with the requirements of CPLR 5528 and 5529, and reproduced full records shall, in addition, comply with the requirements of CPLR 5526. b. Method of Reproduction. Briefs, records and appendices shall be reproduced by any method that produces a permanent, legible, black image on white paper or its digital equivalent. Use of recycled paper and reproduction on both sides of the paper is encouraged for hard copy filings and submissions. c. Paper Quality, Size and Binding. Paper shall be of a quality approved by the chief administrator of the courts and shall be opaque, unglazed, white in color and measure 11 inches along the bound edge by 8½ inches. Records, appendices and briefs shall be bound on the left side in a manner that shall keep all the pages securely together; however, binding by use of any metal fastener or similar hard material that protrudes or presents a bulky surface or sharp edge is prohibited. Records and appendices shall be divided into volumes not to exceed two inches in thickness. d. The cover of the record shall be white and shall contain the following information: I. title; ii. names, addresses, telephone numbers and email addresses of attorneys; iii. index number, claim number or indictment number; and iv. Appellate Division docket number, if one has been assigned (see 22 NYCRR 1250.6 [e], 1250.7 [b] ). e. Include a table of contents listing and briefly describing all papers in the complete record and listing all exhibits, indicating on which page of the record each exhibit was introduced and the page of the record where the exhibit is reproduced (see 22 NYCRR 1250.7 [b] ). f. The record shall be consecutively paginated. The subject matter of each page of the record shall be stated at the top of the page (see CPLR 5526). Incomplete or untimely filings will be rejected by the Clerk, as will any filing that does not comply with the rules, is illegible, or is otherwise unsuitable. Digital copies of records and briefs required by 22 NYCRR 1250.9 (a), (c), and (d) shall be uploaded on the Court’s website at Digital Copy Filing»
Q: Can the parties to an appeal stipulate to omit matter from or add matter to the material that constitutes the record on appeal from an order or judgment? A: The content of the record on appeal is fixed by CPLR 5526 and the parties cannot stipulate to add to or subtract from the material specified by the statute. The parties may stipulate to omit the reproduction of exhibits in a printed record or appendix but the originals of those exhibits, unless of a bulky or dangerous nature, must be filed with the clerk at the time the appellant's brief is filed (22 NYCRR 1250.7[c]). Only the material specified in CPLR 5526 may be included in a printed record or appendix; the parties may not add to a record or appendix any matter that was not before the court of original instance and considered by it in making the order or judgment appealed from. In very limited circumstances a motion may lie to expand the record to take cognizance of documentary evidence, the existence and accuracy of which is not or cannot be disputed, or to take judicial notice of matters of public record (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667).
Q. What must be in the Appendix in Civil Appeals – CPLR 5528 (a) (5); 22 NYCRR 1250.5 (c), 1250.7 (d)? A: 1. A party proceeding by the appendix method must file one digital copy of the complete record, plus an original and five copies of the brief and appendix, and must serve one hard copy of the brief and appendix upon each other party to the appeal (22 NYCRR 1250.9 [a] ). 2. 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 including, where applicable, at least the notice of appeal or order of transfer; the judgment, decree or order appealed from; the decision and opinion of the court or agency, and report of a referee, if any; the pleadings, and in a criminal case, the indictment or superior court information; the material excerpts from transcripts of testimony or from documents in connection with a motion. Such excerpts shall include all the testimony or averments upon which the appellant relies and upon which it may be reasonably assumed the respondent will rely. Such excerpts shall not be misleading or unintelligible by reason of incompleteness or lack of surrounding context; copies of relevant exhibits, including photographs, to the extent practicable; if pertinent, a statement identifying bulky, oversized or dangerous exhibits relevant to the appeal, as well as identifying the party in custody and control of each exhibit; and the appropriate certification, stipulation or settlement order pursuant to subdivision (g) (22 NYCRR 1250.7 [d]).
Q. What must be in Briefs (22 NYCRR 1250.8)? A: 1. The brief should be bound on the left side (see 22 NYCRR 1250.6 [c]). 2. The typeface of computer-generated briefs shall comply with the printing specifications in 22 NYCRR 1250.8 (f) (1). 3. Citation to New York decisions shall be to the Official Reports. If no official citation is available for a decision, the citation used should be to the most available source. 4. Computer-generated briefs shall not exceed 14,000 words for appellants’ and respondents’ briefs, and shall not exceed more than 7,000 words for reply and amicus curiae briefs (see 22 NYCRR 1250.8 [f] ). 5. Pursuant to 22 NYCRR 1250.8 (a), the cover of a brief shall include the following information: a. in the lower right-hand section, the name, address and telephone number of the person submitting the brief; b. the title of the action; c. the Appellate Division docket number, if one has been assigned; and d. in the upper right-hand corner, the name of the person requesting oral argument or submitting the brief and the time requested. 6. Pursuant to 22 NYCRR 1250.8, a brief shall include, in the following order: a. a table of contents; b. a table of cases; c. a concise statement of questions involved, followed by answers given by lower court; d. a concise statement of the nature of the matter and the facts necessary and relevant to the questions involved, with supporting page references; e. argument of the issues, divided into points by appropriate headings, distinctively printed; and f. a statement certifying compliance with the printing requirements of 22 NYCRR Part 1250, on a form approved by the Court. 7. Material may be appended to a brief only if it is contained in the record or it consists of case law, statutes, ordinances, rules, regulations, or other similar matter cited therein that were not published or that are not otherwise readily available.
Q: What material may be included as an addendum to a brief? A: Unless authorized by the court, briefs may not contain maps, photographs, or other addenda (22 NYCRR 1250.8[k]). To this rule there are two exceptions. First, briefs that have an addendum for the convenience of the court containing the text of cited but difficult to obtain cases, statutes, rules, and regulations, etc., will be accepted for filing (22 NYCRR 1250.8[k]). Second, if an appeal or proceeding is prosecuted on the original papers, the appellant's or petitioner's brief must include either an addendum containing a copy of the notice of appeal, the order or judgment appealed from, and the opinion or decision of the court, if any, or a copy of the order transferring the proceeding to this court (22 NYCRR 1250.8[b]).
Q. May Exhibits be omitted from the record? A: 1.Parties may stipulate that particular exhibits are not relevant or necessary to the determination of the appeal or are being withheld because they are of a bulky or dangerous nature, and will be delivered to the Court on notice (see 22 NYCRR 1250.7 [c]). 2. Exhibits should be printed in the record, to the extent practicable (see 22 NYCRR 1250.7 [b] ).
Q. May the record on appeal contain transcripts where four pages of text appear on one page? A: No, unless submitted in text form to the trial court (see 22 NYCRR 1250.7 [e]).
Q: How many copies of records or appendices and briefs must be served and filed where the full record or appendix method is used? A: Where the full record method or the appendix method is used to perfect an appeal, the appellant must serve one copy of the record or appendix and the brief on each adversary and file six hard copies and one digital with the court (22 NYCRR 1250.9[a]).
Q: How many copies of records or appendices and briefs must be served and filed where the original record method is used? A: Where the original papers method is used, six copies of the brief and one digital copy must be filed with the court (22 NYCRR 1250.9[a]). The same principle applies to answering and reply briefs (22 NYCRR 1250.9[c][d]). Pro se parties shall be exempt from the requirement of the filling of a digital copy of any brief or other document(22 NYCRR 1250.9[e]).
Q: When a self-represented appellant has not had the record certified, will the court accept the record and the appellant's brief for filing? A: The record means the volume(s) containing copies of necessary papers, as certified by appellant’s attorney or the proper clerk, stipulated to by the parties or settled by the court from which the appeal is taken (see 22 NYCRR 1250.7 [g]), along with the original certification, stipulation to the record, or order settling the record or a certified copy thereof (see 22 NYCRR 1250.7 [b] ). The Practice Rules of the Appellate Division require that a record or an appendix be certified as a true copy of the original on file in the office of the clerk of the court of original instance either by: the certificate of an attorney pursuant to CPLR 2105, a certificate of the clerk of the court of original instance, or the stipulation of the parties to the appeal pursuant to CPLR 5532 in lieu of certification (22 NYCRR 1250.7[g]). However, a self-represented (pro se) litigant who cannot obtain the certificate of an attorney or a stipulation from the other parties to the appeal, and who cannot afford to obtain the certification of the record or appendix from the office of the clerk of the court of original instance, may make a motion to dispense with compliance with the certification requirement. That motion must be supported by a copy of the proposed record or appendix and must establish that the litigant cannot comply the Appellate Division rule (22 NYCRR 1250.7[g]). The appeal cannot be perfected until the motion is decided.
Q: What is the schedule for filing a respondent's answering brief and an appellant's reply brief? A: A respondent must serve and file an answering brief within 30 days after service of the appellant's brief and an appellant may serve and file a reply brief within 10 days after service of the respondent's answering brief (22 NYCRR 1250.9[c],[d]). These periods are subject to extension based on the method of service (see, e.g., CPLR 2103[b], ). Moreover, if the last day of such a period is a Saturday, Sunday, or a public holiday, service and filing may be made on the next succeeding business day (General Construction Law § 25-a; 22 NYCRR 1250.1[c]).
Q: Are there special requirements for perfecting cross appeals and concurrent appeals? A: A cross appeal is an appeal taken by a party whose interests are adverse to a party who previously appealed from the same order or judgment (22 NYCRR 1250.1[a]). Concurrent appeals are those appeals that are separately taken from the same order or judgment by parties whose interests are not adverse to one another but rather to those of another party (22 NYCRR 1250.1[a]). The rules require that the appealing parties consult and file a joint record or joint appendix which shall include copies of all notices of appeal and share the costs equally (22 NYCRR 1250.9[f]).
Q: Who files what at what time on cross appeals and concurrent appeals? A: The joint record or joint appendix and the respective briefs of concurrent appellants must be served and filed together (22 NYCRR 1250.9[f]). The rules prescribe a special schedule for the filing of briefs in a case involving cross appeals (22 NYCRR 1250.9[f]). A briefing schedule for cases involving cross appeals and a separate respondent or respondents is not set forth in the rules; parties to such cases are advised to try to reach an agreement and then the Clerk of the Court or a Deputy Clerk of the Court to establish a briefing schedule designed to accommodate the circumstances of that case.
Q: How many copies of the records or appendices and briefs must be served and filed? A: An appellant must serve one hard copy of the record or appendix and brief on each adversary and file an original, five hard copies and one digital copy, with proof of service, with the Court. The same applies to answering and reply briefs.
Q: Today is my last day to file a brief or other paper with the court. If I mail it to you today, will that suffice? A: No. Section 1250.1[c] of the Practice Rules of the Appellate Division (22 NYCRR 1250.1[c]) provides that all records on appeal, briefs, appendices, motions, affirmations, and other submissions not filed electronically will be deemed filed only as of the time they are actually received and stamped by the clerk and that they must be accompanied by proof of service upon all necessary parties pursuant to CPLR 2103.
Q: What will happen if I do not perfect an appeal within six months (and any obtained extension)? A: A civil matter not perfected with six months of the date of the notice of appeal will be deemed dismissed.
Q: What may I do to reinstate a dismissed appeal? A: When an appeal has been deemed dismissed for failure to perfect, the appellant must file a motion to vacate the dismissal within one year of the date of the dismissal.
Q: I want to orally argue my appeal. How do I notify the court of my intention to do so? A: A request for argument is made by placing a notation on the upper right hand corner of the cover of the party's main brief stating whether the cause is to be argued and, if so, the time actually required for argument and the name of the attorney who will argue (22 NYCRR 1250.8[a]).
Q: If I request oral argument and then change my mind, do I have to notify the court? A: A party who originally elected to argue may elect to submit the case without argument. If a party who has asked for argument does not answer at the call of the calendar, the cause will be marked submitted by that party (see 22 NYCRR 1250.15[c]).
Q: I was notified that my case will receive "submission calendar" treatment. What does that mean and does it indicate that the court takes a negative view of the appeal? A: The court may, in its discretion, deny argument of any cause (22 NYCRR 1250.15[c]). It does so in relatively noncomplex cases and places them on a calendar of submitted matters. This does not indicate that the court deems the appeal to be without merit, but rather only that the court has concluded that it does not need oral argument to assist in deciding the matter.
Q: How do I withdraw a pending appeal? An appellant may withdraw an unperfected appeal or proceeding by sending a letter to the court, with a copy to all other parties, requesting that an order be issued to that effect. This method of withdrawal is also available where an appeal or proceeding has been perfected but no responsive papers have been filed (22 NYCRR 1250.2[b]). If the appeal or proceeding has been perfected and responded to, an appellant must either make a formal motion on notice for leave to withdraw it, or must submit a stipulation signed by all parties consenting to the withdrawal (22 NYCRR 1250.2[b]; 670.2[a]). An appellant wishing to withdraw a perfected appeal should include in their submission to the court a statement as to when the event warranting withdrawal occurred and an explanation for any delay in informing the court thereof.
Q: Must I notify the court if an event occurs that would affect the continued viability of my appeal or proceeding? A: If an appeal or an underlying action or proceeding is wholly or partially settled, or if any issues are wholly or partially rendered academic, or if any appeal or proceeding should not be calendared because of bankruptcy or death of a party, inability of counsel to appear, or for some other reason, the parties or their counsel must immediately notify the court and follow up that notification with an application for appropriate relief(22 NYCRR 1250.2[c]). Any attorney or party who, without good cause, fails to give such notice may be subject to the imposition of sanctions.
Q: Where are costs taxed? A: Costs on a civil appeal determined by the Appellate Division are $250 (CPLR 8203[a]). A party who prevails on an appeal is generally awarded costs. A party to whom an award of costs is made is also entitled to tax their disbursements (see CPLR 8301[a]). Costs and disbursements are taxed in the office of the Clerk of the Court of original instance, not in the Appellate Division.
Q: How can I maintain the status quo during an appeal? A: Where compliance with the terms of a judgment or order during the pendency of an appeal threatens to change the status quo and render that appeal academic, the appellant may seek a stay of enforcement pursuant to CPLR 5519. Where ongoing acts not commanded or forbidden by the judgment or order would similarly tend to render the appeal academic, the appellant may move for an injunction pursuant to CPLR 5518. In either case, if the threat of change is imminent, the appellant may bring on a motion for a stay or injunction by an order to show cause containing a temporary restraining order (TRO) that would maintain the status quo during the pendency of the motion (CPLR 5518). A party seeking a temporary restraining order must give reasonable notice of the date and time when the order to show cause will be presented and the relief being requested accompanied by a digital copy of the papers the party seeking relief intends to present to the court for filling (22 NYCRR 1250.4[b]; 670.4[a]). Absent exigent circumstances, the custom is to give such notice by telephone at least 24 hours in advance. An order to show cause containing a temporary restraining order must be personally presented for signature by an attorney or by the party if they are self-represented (proceeding pro se).
Q: How do I make a motion? A: If a party needs to seek interim relief from the court during the course of an appeal or proceeding, they must make a motion, which may be brought on by a notice of motion or order to show cause. How to make a motion in this court is explained in § 1250.4 of the Practice Rules of the Appellate Division and local rules of the Appellate Divisions (22 NYCRR 1250.4).
Q: Are motions submitted or argued? A: All motions are submitted.
Q: Must I appear on the return date? A: No calendar of motions is called and no appearance is permitted or required (22 NYCRR 1250.4[a]).
Q Is there a fee to make a motion or cross motion? A: CPLR 8022[b] provides that the fee for filing a motion or cross motion regarding a civil appeal or special proceeding is $45. However, no fee is payable for a motion or cross motion which seeks poor person relief pursuant to CPLR 1101[a].
Q: What court fees can I expect to pay in connection with an appeal in the Appellate Division? A: CPLR 8022 sets the fees in connection with civil appeals and proceedings before appellate courts. A fee of $65 is payable to a county clerk for filing a notice of appeal in their office. The fee to perfect a civil appeal or to file the papers commencing a special proceeding in the Appellate Division is $315. The fee to file a motion or cross motion with respect to a civil appeal or special proceeding is $45. All these fees are payable in advance of the filing of the papers in question. Q: I cannot afford to pay the fees, costs, and expenses necessary to prosecute or respond to a civil appeal or special proceeding, or to make a motion with respect thereto, in the Appellate Division. Can I be exempted from such payments? A: An individual can be exempted from payment of the fees, costs, and expenses in connection with a civil appeal and special proceeding in the Appellate Division by successfully making a motion to the court for poor person relief pursuant CPLR 1101 and 22 NYCRR 1250.4[d]. There is no fee to make such a motion (CPLR 8022[b]). CPLR 1102 provides that if the motion is granted, the privileges of a poor person include an exemption from the payment of fees and costs, the right to the use of a free copy of the transcript of the minutes of any trial or hearing that led to the order or judgment appealed from, the right to perfect the appeal or proceeding using the original record method (see, 22 NYCRR 1250.5[e]), and, in some cases, the assignment of counsel. However, if as a result of the appeal or special proceeding the person awarded poor person relief obtains an award of money by judgment or by settlement, the court may direct that all or a portion of the fees, costs, and expenses be paid out of the recovery (see CPLR 1102[d]).