Perfecting the Appeal to the Appellate Division - Appellate Division Bound by Record
Perfecting the Appeal to the Appellate Division - Appellate Division Bound by Record
To “perfect” the appeal, the appellant must first obtain and settle the transcript of the proceedings below,1 if any. No transcript is necessary where a party appeals from a judgment entered upon a referee's report, or a decision of the court upon a trial without a jury, and he relies only upon exceptions to rulings on questions of law made after the case is finally submitted.2 Every appellant has a clear legal right to settlement of the record.3 An appeal will be dismissed where the transcript is not settled.4 The Appellant then prepares, serves and files the record or appendix,5 has it certified and then prepares and files a brief.6 On appeal, the Court can only review questions presented in the record and is bound by the certified record on appeal. It may not consider anything which does not appear in the record7 or new evidence presented by one party on the appeal.8 Matter contained in a brief which is not substantiated in the certified record will not be considered on appeal.9 The Appellate Court may not consider extrinsic facts presented on appeal by one party.10 The record cannot be supplemented or contradicted by extrinsic matter such as transcripts that are not properly part of the record,11statements made in briefs,12 affidavits or papers attached to a brief or submitted,13 or statements made on oral argument.14 Matter and points contained in the brief, without factual basis in the record, is not considered on appeal.15 However, the First Department has held that the court may consider filed papers which are before the court.16
3 Wahrhaftig v. Space Design Group, Inc., 28 A.D.2d 940, 281 N.Y.S.2d 500 (3d Dep't 1967).
4 In Baiko v. Baiko, 141 A.D.2d 635, 530 N.Y.S.2d 7 (2d Dep't 1988) since the appellant failed to order and settle the transcript of the proceedings and since the exception set forth in CPLR 5525 (b) was not applicable, the appeal was dismissed (see, Davidson v. Ha Il-Bo, 117 A.D.2d 776, 499 N.Y.S.2d 105 (2d Dep't 1986); Perry v. Tauro, 21 A.D.2d 804, 250 N.Y.S.2d 898 (2d Dep't 1964)).
7 Reed v. Reed, 93 A.D.2d 105, 462 N.Y.S.2d 73 (3d Dep't 1983) (court bound by certified record and may not consider subsequent order). In Pesola v. Pesola, 65 A.D.2d 787, 410 N.Y.S.2d 539 (2d Dep't 1978), the Appellate Divison held that the judgment in this case was entered on consent and was not appealable. In addition, the matters which appellant sought to raise were entirely dehors the record and may not be considered. In Gintell v. Coleman, 136 A.D.2d 515, 523 N.Y.S.2d 830 (1st Dep't 1988) where the record filed with the court consisted solely of the order appealed from, pre-argument statement and notice of appeal the appeal was dismissed without prejudice to renewal upon a proper record. In Reiss v. Reiss, 153 A.D.2d 846, 545 N.Y.S.2d 366 (2d Dep't 1989), the Appellate Division noted that certain facts alluded to by the defendant in his brief were “de hors the record and may not be considered on the appeal.” In Liebling v. Liebling, 146 A.D.2d 673, 537 N.Y.S.2d 46 (2d Dep't 1989), the Appellate Division stated: “ ... we condemn the inclusion by the husband of documents in the appendix which are not properly part of the record of appeal ..., as well as his failure to settle the transcript in accordance with the rules of this court ....”
10 Ray v. Ray, 34 A.D.2d 517, 308 N.Y.S.2d 407 (1st Dep't 1970).
11 In Cicardi v. Cicardi, 263 A.D.2d 686, 693 N.Y.S.2d 696 (3d Dep't 1999), on remand of appeal of denial of father's application to modify child support, the father moved to settle appellate record, and the mother moved to strike portions of record. The Family Court granted mother's motion, and father appealed. The Appellate Division affirmed, holding that trial court properly precluded three hearing transcripts from record on appeal. The Court stated that, pursuant to CPLR 5526, “[t]he record on appeal from a final judgment shall consist of the notice of appeal, the judgment-roll, the corrected transcript of the proceedings or a statement pursuant to [CPLR 5525(d)] if a trial or hearing was held, any relevant exhibits, or copies of them, in the court of original instance, any other reviewable order, and any opinions in the case.” Accordingly, any incidental order which does “not have any impact on the final judgment” is not subject to review (citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 5501:4, at 18). The lower Court correctly precluded certain hearing transcripts from inclusion in the record on appeal. The proceeding conducted on February 6, 1997 involved the referral of the case to a Hearing Examiner and the issuance of a temporary support order by Family Court, to remain in effect until petitioner's derivative Social Security payments began, which evidently were to benefit petitioner's children. This order was clearly intended to be a temporary measure to provide support for the children pending the Hearing Examiner's inquiry, and was not relevant to the issues on appeal. All three transcripts were properly excluded from the record on appeal because they do not necessarily affect (see, CPLR 5501[a]) or involve the merits (see, CPLR 5017[b]) of petitioner's pending appeal.
12 Bronner v. Walrath, 208 A.D. 758, 202 N.Y.S. 577 (4th Dep't 1924)..
13 Archer v. Archer, 147 A.D. 929, 132 N.Y.S. 150 (2d Dep't 1911).
14 Mullins v. Franz, 162 A.D. 316, 147 N.Y.S. 418 (2d Dep't 1914).
15 In Block v. Nelson, 71 A.D.2d 509, 511, 423 N.Y.S.2d 34 (1st Dep't 1979) the Appellate Division stated: “It is well established that review by this court is limited by the record on appeal and the court is bound by the certified record on appeal. Matter contained in the briefs, not properly presented by the record, is not to be considered by this court (Mulligan v. Lackey, 33 A.D.2d 991, 992, 307 N.Y.S.2d 371 (4th Dep't 1970)). With these rules in view, the appendix at the end of plaintiff's brief will be disregarded on this appeal. Likewise, those points in plaintiff's brief with no factual basis in the record will be rejected.” In Raso v. Raso, 129 A.D.2d 692, 514 N.Y.S.2d 516 (2d Dep't 1987), the Appellate Division affirmed a judgment which dismissed the husband's complaint for divorce. It stated: “the plaintiff's arguments addressed to the alleged comments of the trial court at a bench conference are dependent upon facts outside of the record and therefore cannot be considered an appeal.” In Merl v. Merl, 128 A.D.2d 685, 513 N.Y.S.2d 184 (2d Dep't 1987), the court stated: “Lastly we take this opportunity to remind counsel for the appellant that the function of an appellate brief is to assist, not mislead the court ... in their brief, the counsel for the appellant have improperly injected matters that are de hors the record, mischaracterized events and fabricated facts and issues. We admonish counsel that such attempts to mislead the court are in direct derogation of their professional obligation and will not be tolerated.” In Flynn v. Flynn, 128 A.D.2d 583, 512 N.Y.S.2d 847 (2d Dep't 1987) on a motion by the husband for leave to reargue or to appeal to Court of Appeals, the court held that a temporary order in a matrimonial action is superseded by the final judgment and denied the motion. It noted that some exhibits attached to the moving papers were not properly before the court because they were not part of the prior appeal.
16 In Block v. Nelson, 71 A.D.2d 509, 423 N.Y.S.2d 34 (1st Dep't 1979) the First Department held that it may consider filed papers which are made part of the record on appeal since all filed papers are properly before the Court at all times and are properly part of the record. Parkmed Co. v. Pro-Life Counselling, Inc., 88 A.D.2d 534, 450 N.Y.S.2d 23 (1st Dep't 1982). (As to motion to strike record on appeal it is noted that everything contained therein is part of filed papers—Since all filed papers are properly before court at all times, they are properly includable in record.). See also Capasso v. Capasso, 129 A.D.2d 267, 517 N.Y.S.2d 952 (1st Dep't 1987), where the Appellate Division deemed the wife's submission of a post-trial indictment of the husband as part of the record because he did not object to it and relied on it in a motion to strike the wife's supplemental reply brief.