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] ); 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.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
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.
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.