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    • Standards of Appellate Review in Matrimonial Actions
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    • Standard of Review of Custody Determinations - Effect of Changed Circumstances During Pendency of Appeal
    • Standards of Review : Fugative disentitlement doctrine in custody and child support appealsw Page
    • Mandatory Electronic filing (e-filing): First Department
    • Electronic filing (e-filing): First Department Digital submission in Non-Efiled Matters - June 1, 2020
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    • Mandatory Electronic filing (e-filing): Fourth Department
    • Electronic filing (e-filing): Fourth Department Motion FAQS
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  • I. Appeals as of Right
  • II. Motions for Leave to Appeal
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    • Equitable Distribution Decisions Chart
    • Exclusive Occupancy of Marital Home
    • Grounds for Divorce
    • Maintenance Awards until 2016
    • Maintenance Awards after January 22, 2016
    • Modification of Maintenance and Child Support Orders and Judgments
    • Orders of Protection
    • Special Relief - Insurance
    • Spousal Support Awards
    • Table of Effective dates of Revisions to Domestic Relations Law §§ 236, 237, and 240
    • Timetable For Service of Motion Papers
    • Uniform Child Custody Jurisdiction & Enforcement Act
  • Additional Articles and Information about New York Divorce & Family Law
    • Adoption Information
    • Antenuptial and Post Nuptial Agreements
    • Child Abuse & Prevention
    • Child Custody & Parental Alienation Information
    • Child Support
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    • Degrees & Licenses
    • Domestic Violence
    • Emergency Court Applications
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    • Frequently Asked Questions
    • Grandparent and Non-Parent Visitation
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    • Valuation Aids
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    • International Child Abduction
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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
 
         
 
Endnotes

1 CPLR 5525.

2 CPLR 5525(b).

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)).        

5 See CPLR 5526.

6 See CPLR 5529, 5530.

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 ....”

8 Bouchardeau v. Bouchardeau, 63 A.D.2d 975, 405 N.Y.S.2d 769 (2d Dep't 1978).

9 Pesola v. Pesola, 65 A.D.2d 787, 410 N.Y.S.2d 539 (2d Dep't 1978).

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][1]) 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.

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  • Home
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  • Appeals to the Appellate Divison
    • Instructions for taking an Appeal to the Appellate Division
    • Who is served with the notice of appeal?
    • Registration and Consent to Efiling by Respondents Within 20 days of being served the notification of docket number
    • Preserving the Right to Appeal
    • Appellate Division is Single Statewide Court
    • Appeals to the Appellate Division as of Right from the Supreme Court
    • Permissible Appellant—“Aggrieved party” and Mootness doctrine
    • Permissible Appellant - Appealable Judgment or Order
    • Permissible Appellant - Appeal from Order denying motion with leave to renew or without prejudice
    • Appeals : Appellate Review of Non-final Orders in Matrimonial Actions
    • Appeals : Fundamental and Harmless Error
    • Appeals : Matrimonial Presumptions and the Burden of Proof
    • Appeals : Stare Decisis, Precedent and Dicta
    • Appeals : Understanding the Support Magistrate Objection Process
    • Appeals to the Appellate Division from Family Court
    • Perfecting the Appeal to the Appellate Division - Methods
    • Perfecting the Appeal to the Appellate Division - Appellate Division Bound by Record
    • Perfecting the Appeal to the Appellate Division - Order and Settle the Transcript
    • Method of Settlement of the Transcript
    • Appeals to Appellate Division from Supreme Court by permission
    • Form of Record and Briefs - Parties, Docket Number, Method of Reproduction
    • ​Form of Briefs and Appendices - CPLR
    • What must be in the Reproduced Full Record
    • What is the Judgment-roll?
    • What must be in the Appendix.
    • What must be in Briefs
    • Time, number and manner of filing of records, appendices and briefs
    • Cross appeals - Briefing Schedule, Joint Record, Content of Briefs, Time for Service
    • Extension of time to perfect appeal
    • Concurrent appeals, Appeals from a single order or judgment. Consolidation of Appeals.
    • First Department Requirement of note of issue
    • Stay of Enforcement of Order or Judgment Pending Appeal
    • Practice in the Appellate Division: What Laws Govern
    • Practice Rules of the Appellate Divison: Joint & Local Rules
    • Practice in the Appellate Division First Department New and Amended Local Rules June 25, 2021
    • Practice in the Appellate Division, First Department, Frequently asked questions
    • Practice in the Appellate Divison: Motions in the First Department
    • Practice in the Appellate Divison: Motions in the Second Department
    • Practice in the Appellate Division: Motions in the Third Department
    • Practice In The Appellate Division:Motions in the Fourth Department
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    • Instructions to Perfect an Appeal in the Third Department
    • Instructions to perfect an appeal in the Fourth Department
    • Appellate Division Fourth Department Q & A
    • Universal E-filing in the Fourth Department
    • Standards of Appellate Review in Matrimonial Actions
    • Standard of Review— Appellate review of Custody Determinations
    • Standard of Review of Custody Determinations - Effect of Changed Circumstances During Pendency of Appeal
    • Standards of Review : Fugative disentitlement doctrine in custody and child support appealsw Page
    • Mandatory Electronic filing (e-filing): First Department
    • Electronic filing (e-filing): First Department Digital submission in Non-Efiled Matters - June 1, 2020
    • Electronic filing (e-filing): First Department New and Amended Local Rules Updated June 25, 2021
    • Electronic filing (e-filing): First Department Formatting Specifications
    • Electronic filing (e-filing): First Department Frequently Asked Questions
    • Electronic filing (e-filing): Second Department Technical Guidelines
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    • Electronic filing (e-filing): Second Department - Motions -22 NYCRR 670.4 (d)
    • Electronic filing (e-filing): Third Department - Digital Copies - 22 NYCRR 850.4 (a)
    • Electronic filing (e-filing): Third Department Motion FAQs
    • Mandatory Electronic filing (e-filing): Fourth Department
    • Electronic filing (e-filing): Fourth Department Motion FAQS
    • Electronic filing Authorization in matrimonial actions
    • E-filing Rules and Forms of the Appellate Division
    • Joel R. Brandes Reported Appeals
  • Court of Appeals Rules of Practice
  • How to take an Appeal to the Court of Appeals
  • I. Appeals as of Right
  • II. Motions for Leave to Appeal
  • III. Guidelines for Preparing a Motion for Leave to AppeaNew Page
  • IV. Rule 500.11 Review Aternate Procedure for Selected Appeals
  • V. Appealability and Reviewability
  • VI. What is a Final Determination
  • VII. The "Necessarily Affects" Requirement
  • Filing of record material and briefs in normal course appeals and required copies
  • Contents of Records, appendices and exhibits in normal course appeals
  • Content and form of Briefs in normal course appeals
  • Civil and Criminal Appeals Frequently Asked Questions
  • Civil Motions Frequently Asked Questions
  • Court-Pass - Digital Filing Frequently Asked Questions
  • Court of Appeals Portal for uploading companion digital submissions
  • Court of Appeals Court Pass Public Access and Search
  • New York Divorce Law
    • Agreements Before & During Marriage
    • Custody & Visitation
    • Child Support Awards
    • Counsel Fee Awards
    • Enforcement of Judgments & Orders
    • Equitable Distribution
    • Equitable Distribution Law for Trial Counsel
    • Equitable Distribution Decisions Chart
    • Exclusive Occupancy of Marital Home
    • Grounds for Divorce
    • Maintenance Awards until 2016
    • Maintenance Awards after January 22, 2016
    • Modification of Maintenance and Child Support Orders and Judgments
    • Orders of Protection
    • Special Relief - Insurance
    • Spousal Support Awards
    • Table of Effective dates of Revisions to Domestic Relations Law §§ 236, 237, and 240
    • Timetable For Service of Motion Papers
    • Uniform Child Custody Jurisdiction & Enforcement Act
  • Additional Articles and Information about New York Divorce & Family Law
    • Adoption Information
    • Antenuptial and Post Nuptial Agreements
    • Child Abuse & Prevention
    • Child Custody & Parental Alienation Information
    • Child Support
    • Common Law Marriage
    • Child Visitation Supervisors
    • Degrees & Licenses
    • Domestic Violence
    • Emergency Court Applications
    • Engagement gifts
    • Evidence Law
    • Family Court Proceedings
    • Federal Law Divorce Resources (Pension and Social Security)
    • Frequently Asked Questions
    • Grandparent and Non-Parent Visitation
    • Grounds for Divorce
    • Legal Fees, Liens & Sanctions
    • Litigation & Procedure
    • Maintenance and Child Support New York Court System Tools
    • Maintenance, Special Relief & Spousal Support
    • Marital Property and Property Distribution
    • New York Motion Practice
    • Professional Conduct
    • Retirement Benefits
    • Questions about Income Tax
    • Right to Counsel in Matrimonial Action
    • Role of the Attorney for the Child
    • Valuation Aids
  • ​New York Court System Links for Lawyers
  • New York Court Rules
  • New York Court Websites and Decisions
  • Electronic Filing in Supreme Court Rules and FAQ's
  • Using EDDS Electronic Delivery to Courts
  • New York Courts Case Search Page for E-filed Case Files
  • New York Court System Site Map
  • Family Court Official Forms
  • International Child Abduction Remedies
    • International Child Abduction
    • Hague International Child Abduction Convention cases from 2011 to date.
    • Hague international Child Abduction Table of Reported and Unreported Cases from 1988 until 2010
  • Site Map of The Law Firm of Joel R. Brandes PC website
  • Make an Appointment for a Consultation
    • Consultation Fee Payment
  • Joel R. Brandes Curriculum vitae
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  • Terms of Use and Privacy Policy