Perfecting the Appeal to the Appellate Division - Order and Settle the Transcript
Perfecting the Appeal to the Appellate Division - Order and settle the transcript
The transcript, if any, must be ordered from the court reporter within the time for taking an appeal. It is ordered by serving the court reporter with a request for the transcript and depositing with him or her a sum requested or amount sufficient to pay the fee.17 The parties may stipulate that only a portion of the record be transcribed.18 Within 15 days after the receipt of the transcript from the court reporter or any other source, it must be settled.19 If the attorney for the appellant has not complied with the applicable time limitations, the transcript may be settled by stipulation between the respective attorneys.20 No transcript is necessary where the appeal is from a judgment entered on a referee's report or a decision of the court made after a non-jury trial if the appellant relies only upon exceptions to rulings on questions of law made after the case is finally submitted.21 The transcript is settled by the appellant serving a copy of the transcript together with his proposed amendments to the transcript, if any, upon the respondent. Within 15 days after service the respondent must make any proposed objections or amendments to the proposed amendments of the appellant and serve them upon the appellant. If the appellant and respondent can thereafter agree on the amendments to the transcript, the appellant corrects the transcript in accordance with the parties' agreement, and the parties certify the correctness of the transcript in accordance with their agreement.22 If the parties cannot agree on the amendments, either party, at any time after, on four days' notice, may submit the transcript and proposed amendments and objections for settlement to the judge or referee before whom the proceedings were brought. The transcript is then corrected by the appellant in accordance with the direction of the Court and certified correct by the parties or judge or referee.23 Where the appellant serves his brief upon the respondent, he must also serve a conformed copy of the transcript or deposit it in the office of the clerk of the court of original instance who is required to make it available to respondent.24 Serving the entire printed record is sufficient. If no amendments or objections are proposed by the respondent within 15 days after settlement of the transcript upon him, the transcript, certified as correct by the court reporter, together with the appellant's proposed amendments, is deemed correct, without the necessity of a stipulation by the parties' certifying to its correctness or the settlement of the transcript to the judge or referee. The Civil Practice Law and Rules requires that appellant must thereafter affix to the transcript an affirmation certifying to his compliance with the time limitations and the respondent's failure to propose amendments or objections within the time prescribed.25 The Civil Practice Law and Rules provides that the notice of settlement which the appellant serves must contain a specific reference to CPLR §5519(c) and state that if the respondent fails to propose amendments or objections within the time limited by paragraph one of CPLR §5525(c), the provisions of paragraph two of CPLR §5525(c) apply.26
Methods of Perfecting Appeal
The Civil Practice Law and Rules provides that an appeal may be prosecuted upon a full record, an appendix or a statement authorized by CPLR §5527.27
19 CPLR 5525(c). CPLR §5525(e) provides that the Appellate Division in each department may make rules containing different time requirements for serving and settling the transcript than those contained in CPLR §5525(c) and (d).
27 CPLR §§5526, 5527, 5528, 5530. This is in addition to the provisions of the Family Court Act §1116 which permit an appeal to be perfected on the original record. See 22 NYCRR §1250.5(e) effective September 17, 2018.