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 Perfecting the Appeal to the Appellate Division - Methods

Perfecting the appeal to the appellate division
 
          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] [5]); by the appendix method (CPLR 5528 [a] [5]); 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.1
           1. Reproduced Full Record Method.
          If the appellant elects to proceed on a reproduced full record on appeal, the record must be printed or otherwise reproduced as provided in 2 NYCRR 1250.6 and 1250.7.2
          2. Appendix Method.
          If the appellant elects to proceed by the appendix method, the appendix must be printed or otherwise reproduced as provided in22 NYCRR 1250.6 and 1250.7.3
          3. Agreed Statement in Lieu of Record Method- Civil practice law and rules
          The Civil Practice Law and Rules4 provide that when the questions presented by an appeal can be determined without an examination of all the pleadings and proceedings, the parties may prepare and sign a statement which can be submitted to the court in lieu of a record on appeal.
          The statement must show how the questions presented by the appeal arose and how the questions were decided in the Court from which the appeal is taken. It must set forth only so much of the facts averred and proved, or sought to be proved, as are necessary to a decision of the questions.
          The statement must include a copy of the judgment or order appealed from, the notice of appeal and a statement of the issues to be determined. It may also include portions of the transcript of the proceedings or other relevant matter.
          The statement must be presented, within 20 days after the appellant has taken his appeal, to the Court from which the appeal is taken, for approval as the record on appeal.
          The Court to which the statement is presented for approval may make corrections or additions necessary to fully present the questions raised by the appeal. The approved statement must be presented as a joint appendix.5
          Where no stenographic record of proceedings is made, the Civil Practice Law and Rules provides that a stenographic record be recreated by the parties. In such a case, within ten days after taking his appeal the appellant must prepare and serve upon the respondent a statement of the proceedings from the best available sources, including his recollection, for use instead of a transcript. The respondent may serve upon the appellant objections or proposed amendments to the statement within ten days after such service. The statement, with objections or proposed amendments, must be submitted for settlement to the judge or referee before whom the proceedings were had.6
          If the appellant elects to proceed by the agreed statement method in lieu of record method, the statement must be reproduced as a joint appendix as provided in22 NYCRR 1250.6 and 1250.7. The statement required by CPLR 553l must be appended.10
          4 Original Record Method.
          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: appeals from the Family Court; appeals under the Election Law; appeals under the Human Rights Law (Executive Law §298); proceedings transferred to the court pursuant to CPLR 7804 (g) (5) appeals where the sole issue is compensation of a judicial appointee; appeals under Correction Law §§168-d (3) and 168-n (3); appeals of criminal causes; appeals from the Appellate Term, where the matter was perfected on an original record at the Appellate Term; other causes where an original record is authorized by statute; and causes where permission to proceed upon the original record has been authorized by the court.11
 
Endnotes

1 22 NYCRR §1250.5(a) effective September 17, 2018.

2 22 NYCRR §1250.5(b) effective September 17, 2018.

3 22 NYCRR §1250.5(c) effective September 17, 2018.

4 CPLR 5527.

5 CPLR §5527; CPLR §5528(d) provides that a “joint appendix bound separately shall be used.” It must be filed with the appellant's brief.

6 CPLR 5525(d).
          In Garner v. Garner, 88 A.D.3d 708, 930 N.Y.S.2d 465 (2d Dep't 2011), the petitioner father contended on appeal that the Family Court failed to take the appropriate measures to protect his right to assigned counsel pursuant to FCA §262(a). However, the issue could not be resolved on the record on appeal provided to the Court since it did not contain a transcript for the proceedings held on July 29, 2009. It remitted the matter to the Family Court for a reconstruction hearing with respect to those proceedings conducted in the case before the Court Attorney Referee on July 29, 2009, which could not be transcribed, and the appeal was held in abeyance in the interim (citing Olson v. Olson, 8 A.D.3d 285, 777 N.Y.S.2d 695 (2d Dep't 2004)).
          In Chu Man Woo v. Qiong Yun Xi, 100 A.D.3d 883, 954 N.Y.S.2d 790 (2d Dep't 2012) the husband contended, among other things, that the Family Court erred in dismissing his family offense petition on the basis that the wife's testimony at the hearing on the petition was credible. However, the issues raised by the husband on appeal could not be resolved on the record provided to the Court since it did not contain a transcript for the proceedings held on July 27, 2011, which included portions of the wife's testimony. Accordingly, it remitted the matter to the Family Court for a reconstruction hearing with respect to those proceedings, which could not be transcribed, and the appeal was held in abeyance in the interim.
          In Nancy R. v. Anthony B., 121 A.D.3d 555, 995 N.Y.S.2d 18 (1st Dep't 2014), the Appellate Division rejected respondent's contention that the matter should be remanded for a new hearing because the transcripts from the willfulness and confirmation hearings were missing. The respondent never sought a reconstruction hearing prior to the appeal being perfected, even though he was aware that the transcripts could not be produced. The respondent suffered no prejudice, because he stipulated to the accuracy of the record, which was sufficient for the Court to determine the issue of willfulness.

10 22 NYCRR §1250.5(d) effective September 17, 2018.

11 22 NYCRR §1250.5(e) effective September 17, 2018.
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  • Recent Decisions & Articles
    • Recent Decisions, Legislation and Court Rules
    • New York Law Journal Articles by Joel R. Brandes
    • Articles Published in NYSBA Family Law Review and Journal
    • Bits and Bytes™ Issues - New York Divorce and Family Law Newsletter
    • Table of Contents of this website
    • Joel R. Brandes Letters to the Editor
    • Recent International Child Abduction Cases
    • Books by Joel R. Brandes
    • Adoption Information Articles
    • Child Abuse & Prevention Articles
    • Common Law Marriage Articles
    • Child Visitation Supervisors
    • Domestic Violence Articles
    • Engagement gifts Articles
    • Family Court Proceedings Articles
    • Grandparent and Non-Parent Visitation Articles
    • Professional Conduct Articles
    • Income Tax and Capital Gains Tax Articles
    • Spousal Support Articles
  • Divorce Information
    • Antenuptial, Prenuptial, Nuptial and Post Nuptial Agreements
    • Child Custody, Visitation (Parental Access) & Parental Alienation
    • Child Support
    • Counsel Fee Awards
    • Degrees & Licenses
    • Emergency Court Applications
    • Enforcement of Judgments & Orders
    • Equitable Distribution of Marital Property
    • Equitable Distribution Law for Trial Counsel
    • Equitable Distribution Decisions Chart to January 1, 2023
    • Exclusive Occupancy of Marital Home
    • Frequently Asked Questions About Marriage, Divorce, Separation and Custody
    • Grounds for Divorce
    • Legal Fees, Liens & Sanctions
    • Litigation & Procedure
    • Maintenance Awards until 2016
    • Maintenance Awards on or after January 22, 2016
    • Maintenance, Special Relief & Spousal Support
    • Maintenance and Child Support New York Court System Tools
    • Marital Property, Separate Property and Property Distribution
    • Motion Practice
    • Modification of Maintenance and Child Support Orders and Judgments
    • Orders of Protection
    • Qualified Domestic Relations Orders
    • Retirement Benefits
    • Right to Counsel in Matrimonial Action
    • Role of the Attorney for the Child
    • Special Relief (life, health, accident, medical and dental insurance)
    • Social Security Benefits for Divorced Spouses
    • Table of Effective dates of Revisions to Domestic Relations Law §§ 236, 237, and 240
    • Trial and Trial Testimony
    • Trial and Trial Testimony 2023 Update
    • Trial of a Divorce and Custody Action Website
    • Trial Evidence for Divorce and Family Law
    • Uniform Child Custody Jurisdiction & Enforcement Act Overview
    • Valuation Aids
  • Appellate Practice
    • Important Practice Updates from the Appellate Divisions
    • Instructions for taking an Appeal to the Appellate Division
    • Taking an Appeal from Supreme Court under NYCSEF
    • Who is served with the notice of appeal?
    • Registration and Consent to Efiling by Respondents
    • 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
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    • Appellate Division Fourth Department Q & A
    • Universal E-filing in the Fourth Department
    • Standards of Appellate Review in Matrimonial Actions
    • Standards of Appellate Review of Custody Determinations
    • Standards of Appellate Review of Custody Determinations - 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
    • Electronic filing (e-filing): First Department New and Amended Local Rules
    • Electronic filing (e-filing): First Department Formatting Specifications
    • Electronic filing (e-filing): First Department Frequently Asked Questions
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    • Mandatory Electronic filing (e-filing): Second Department
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    • Motions for Leave to Appeal to the Court of Appeals
    • Guidelines for Preparing a Motion for Leave to Appeal to the Court of Appeal
    • Rule 500.11 Review Alternate Procedure for Selected Appeals to the Court of Appeals
    • Appealability and Reviewability in the Court of Appeals
    • What is a Final Determination appealable to Court of Appeals?
    • The "Necessarily Affects" Requirement of the Court of Appeals
    • Filing of record material and briefs in normal course appeals to the Court of Appeals
    • Contents of Records, Appendices and Exhibits in Normal Course Appeals to the Court of Appeals
    • Content and form of Briefs in Normal Course Appeals to the Court of Appeals
    • Frequently Asked Questions for Civil and Criminal Appeals to the Court of Appeals
    • Civil Motions in the Court of Appeals Frequently Asked Questions
    • Court-Pass - Court of Appeals Digital Filing Frequently Asked Questions
    • Court of Appeals Portal for uploading companion digital submissions
    • Court of Appeals Court Pass Public Access and Search
  • Trial of a Divorce and Custody Action
  • ​New York Court System Links for Lawyers
  • New York Court Rules
  • Electronic Filing in Supreme Court Rules and FAQ's
  • Removal of NYCSEF Consent 22 NYCRR 202.16-c
  • Sending Documents to the Court Using EDDS
  • Family Court Official Forms
  • New York Courts Case Search Page for E-filed Case Files
  • New York Court System Site Map
  • New York Court Websites and Decisions
  • International Child Abduction Laws and Information
  • Hague International Child Abduction Convention cases from 2011 to date.
  • Table of Reported and Unreported Hague Convention Cases from 1988 until 2010
  • Who we are
  • Joel R. Brandes Curriculum vitae
  • Make an Appointment for a Consultation
  • Subscribe to Bits and Bytes™
  • Terms of Use Privacy Policy
  • Consultation Fee Payment
  • Untitled
  • New Page