Taking an appeal from the Supreme Court under NYCSEF
Service of Interlocutory Documents by efiling Service in a NYSCEF case is made through NYSCEF by a participating e-filer upon other e-filers who have recorded their consent or, in a mandatory case, noted their representation for a party. An e-filing party causes the service of an interlocutory document to be made upon another party participating in e-filing by filing the document electronically. Upon receipt of an interlocutory document, the NYSCEF site will automatically transmit an electronic notification to all e-mail service addresses in the action. Except as provided otherwise in 22 NYCRR § 202.5-b(h)(2), the electronic transmission of the notification will constitute service of the document on the e-mail service addresses identified therein. However, service will not be effective if the filing party learns that the notification did not reach the address of the person to be served. Proof of service will be recorded on the NYSCEF site. The e-mail service address recorded by a party at the time of registration is the e-mail address at which the service of interlocutory documents may be made on that party through notification transmitted by the NYSCEF site. 22 NYCRR 202.5-b(f)(ii). A party may utilize other service methods permitted by the CPLR provided that, if one of such other methods is used, proof of that service must be filed electronically.22 NYCRR 202.5-b(f)(i)
Service of an order or judgment by efiling does not constitute notice of entry of a judgment or order. (22 NYCRR 202.5-b). 22 NYCRR 202.5-b(h)(2) provides that in an efiling matter where the parties have registered their consents, a party must serve notice of entry of an order or judgment on another party by serving a copy of the order or judgment and written notice of its entry by filing them with the NYSCEF site. This will cause the transmission by the site of notification of the receipt of the documents, which constitutes service by the filer. In the alternative, a party may serve a copy of the order or judgment and written notice of its entry in hard copy by any method in CPLR 2103 (b) (1) to (6). If service is made in hard copy by any method in CPLR 2103 (b) (1) to (6) and a copy of the order or judgment and notice of its entry and proof of hard copy service are then filed with the NYSCEF site, transmission by NYSCEF of notification of the receipt of those documents does not constitute additional service of the notice of entry on the parties to whom the notification is sent. (22 NYCRR 202.5-b(h)(2)).
Preparation of Notice of Appeal
Taking an appeal as of right from an order or judgment of the Supreme Court consists of serving on the adverse party a notice of appeal and filing it in the office where the judgment or order of the court of original instance is entered. The notice of appeal must designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from, and the court to which the appeal is taken. (CPLR 5515(1)). An appeal as of right must be “taken” within 30 days after service by a party upon the appellant of a copy of the order or judgment with notice of entry. (CPLR 5513(a)).
Service of Notice of Appeal and Filing
A notice of appeal must be served upon your adversary and filed in the office of the clerk of the court of original instance (where the matter was commenced) within 30 days after service of a copy of the order or judgment appealed from with notice of entry. In civil cases originating in the Supreme Court, a filing fee of $65 is payable to the county clerk (CPLR 8022[a]). The County Clerk is the clerk of Supreme and County Courts. CPLR 2103(b) provides that papers to be served upon a party in a pending action shall be served upon the party's attorney. If a party to appeal has not appeared by an attorney, service of the notice of appeal must be upon the party by any method specified in CPLR 2103(b) (1), (2), (4), (5), or (6). (CPLR 2103(c)). An attorney who has consented to efiling may be served with the notice of appeal by e-filing. (22 NYCRR 202.5–b (b)(2)(i)).
The entry of judgment normally terminates the attorney-client relationship. However, until an attorney of record is discharged in the mode prescribed by law, the attorney is authorized to act for all purposes incidental to the entry and enforcement of the judgment, and as to adverse parties, his authority continues unabated. (Hendry v. Hilton, 283 A.D. 168, 127 N.Y.S.2d 454 (2 Dept. 1953); Moustakas v. Bouloukos 112 A.D.2d 981, 492 N.Y.S.2d 793. (2 Dept. 1985)). Until that time the attorney may serve and file a notice of appeal upon an adverse party. (Hendry v. Hilton, supra).
Where the notice of appeal is served upon a party’s attorney after the attorney is discharged, but before his discharge in the mode prescribed by law, the service of the notice of appeal upon the attorney is sufficient to fulfill the statutory requirements of service. In Siegel v Obes, (112 A.D.2d 930, 931, 492 N.Y.S.2d 447 (2 Dept., 1985)) the Appellate Division held that service upon appellant's attorney of record after the time that the appellant allegedly discharged him, but before his discharge in the mode prescribed by law, was adequate to fulfill the requirements of CPLR 2103(b).(See also Stancage v Stancage, 173 A.D.2d 1081, 570 N.Y.S.2d 418 (3d Dept.,1991)).
From the standpoint of adverse parties, counsel's authority as an attorney of record in a civil action continues unabated until the withdrawal, substitution, or discharge is formalized in a manner provided by CPLR 321. (Farage v Ehrenberg, 124 A.D.3d 159, 996 N.Y.S.2d 646, 652 (2 Dept., 2014)). Under NYSCEF the discharge of an attorney according to law does not remove his consent to be served and representation in NYSCEF. In matrimonial actions, the Court has continuing jurisdiction to enforce or modify its judgment. (Haskell by Alberts v. Haskell, 6 N.Y.2d 79, 188 N.Y.S.2d 475 (1959)). It appears that where an attorney has been discharged by his client or removal upon the entry of judgment he may be served with a notice of appeal, if he has not removed his consent from NYSCEF. The consent the attorney filed remains active in NYCSEF as a consenting party until removed from the system by the consenting attorney or court order.
Filing Notice of Appeal with informational Statement in the First Department In the First Department if an order or judgment is appealed as of right, the notice of appeal must be served and filed, in the office in which the judgment or order appealed from was entered together with an informational statement on a form approved by the court and in such number as the court may direct and a copy of the order or judgment appealed from. ([22 NYCRR] 1250.4[c]). The appellant must also serve a copy of the notice of appeal upon the opposing party (CPLR 5515[1]; (22 NYCRR 1250.3(a)).
Filing Notice of Appeal with informational Statement in the Second Department A party aggrieved by a judgment or order that is appealable as of right (CPLR 5701[a]) may appeal to the Appellate Division by filing two copies a notice of appeal, to each of which must be annexed an Informational Statement, a copy of the order or judgment appealed from, and a copy of the opinion or decision, in the office in which the judgment or order appealed from was entered. The appellant must also serve a copy of the notice of appeal upon the opposing party (CPLR 5515[1]; 22 NYCRR 1250.3[a])
Filing Notice of Appeal with informational Statement in the Third Department A party aggrieved by a judgment or order that is appealable as of right (CPLR 5701[a]) may appeal to the Appellate Division by filing a notice of appeal, an Informational Statement, a copy of the order or judgment appealed from, and a copy of the opinion or decision, in the office in which the judgment or order appealed from was entered. The appellant must also serve a copy of the notice of appeal upon the opposing party (CPLR 5515[1]; 22 NYCRR 1250.3[a]).
Filing Notice of Appeal with informational Statement in the Fourth Department A party aggrieved by a judgment or order that is appealable as of right (CPLR 5701[a]) may appeal to the Appellate Division by filing a notice of appeal, to each of an Informational Statement, a copy of the order or judgment appealed from, and a copy of the opinion or decision, in the office in which the judgment or order appealed from was entered. The appellant must also serve a copy of the notice of appeal upon the opposing party (CPLR 5515[1]; 22 NYCRR 1250.3[a]).
Appellate Division Practice
Initial Consent and filing
In any appeal designated by the Appellate Division for e-filing, counsel for the appellant or the petitioner, unless an exempt attorney, must within 14 days of the filing of a notice of appeal: (1) register or confirm registration as an authorized e-filer with NYSCEF; and (2) enter electronically in NYSCEF the information about the cause and parties, and e-file the documents, which the court requires. (22 NYCRR 1245.3(a)).
Counsel for an appellant must then do an initial filing on NYSCEF in the appellate division by filing the copy of the notice of appeal with proof of efiling, a copy of the informational statement, and a copy of the order or judgment appealed from. There is a $65 filing fee.
When the court approves the filing counsel for the appellant who participates in e-filing will receive an e-mail with the appellate case number, which must be entered on the appropriate Notification of Case Number form. Within seven (7) days of receipt of the case number, counsel for who participates in e-filing must complete and serve in hard copy pursuant to CPLR 2103 the Notification of Case Number on all the other parties to the appeal and e-file proof of service of the notification. (22 NYCRR 1245.3(b)) The 'Notification of Case Number' form that was sent to the parties must be attached to the filed proof of service of the notification of case number.
Counsel for a party served with a Notification of Case Number is required to register or confirm registration as an e-filer in NYSCEF and enter the contact information requested within 20 days of service. After the 20-day period, an attorney who has not entered the information required under 22 NYCRR 1245.3 will be deemed served with any e-filed documents. (22 NYCRR 1245.3 (d))
All authorized e-filers who have entered information for a matter as required under 22 NYCRR 1245.3 will be able to e-file and be served electronically in that matter. (22 NYCRR 1245.5 (a)). Before the expiration of the 20-day period for entry of information described in 22 NYCRR 1245.3 (d), filing and service of documents by, and service upon, parties who have not entered the information must be in hard copy. (22 NYCRR 1245.5(b)). Upon expiration of the 20-day period for entry of information service and filing by and upon all parties other than exempt attorneys and exempt litigants must be by e-filing. Thereafter, an attorney who has neither entered information nor given notice as an exempt attorney pursuant to 22 NYCRR 1245.4 (a) (2) will be deemed served with any e-filed document. (22 NYCRR 1245.5(c))
A self-represented litigant is exempt from and is not required to participate in e-filing. He or she must be served in hard copy. A self-represented litigant may voluntarily participate in e-filing. A self-represented litigant may voluntarily participate in e-filing by electronically recording his or her consent at the NYSCEF site, registering as an authorized e-filer with NYSCEF, entering the case and contact information about the matter, and e-filing a copy of the notice of appeal, the judgment or order appealed from and the informational statement as required by the rules. (22 NYCRR 1245.4)
Local Rules of the Appellate Divisions deal with the entry of initial information.
In the First Department counsel for the appellant is required to e-file a copy of the notice of appeal with proof of filing; a copy of the order or judgment appealed from; and a copy of the informational statement consolidated in one PDF document. Counsel will not be able to perfect an appeal or file a motion without entering the initial information and obtaining a case number. The court will not accept hard copy filing of an appeal or motion which is mandated to be electronically filed. (See https://www.nycourts.gov/courts/ad1/E-Filing/EfilingFAQVersion2.pdf)
In the Second Department, the entry of initial information also requires the e-filing of the notice of appeal, with proof of filing, the order or judgment appealed from, and an informational statement in a single pdf document. (See:https://www.nycourts.gov/courts/ad2/efiling/Technical_Guidelines_for_Efiled_Matters.pdf)
In the Third Department, the document a single document containing a copy of the Notice of Appeal with Proof of Filing and the Informational Statement must be e-filed. (see https://www.nycourts.gov/ad3/e-file/civil%20efiling%20instructions.pdf)
In the Fourth Department, the required documents are a copy of the Notice of Appeal; a copy of the order or judgment appealed from; and proof of service of the notice of appeal. These documents must be consolidated into one PDF document and e-filed as COPY OF NOTICE OF APPEAL WITH PROOF OF FILING + SERVICE / ORDER OR JDGMT APPEALED FROM OR CERT OF CONVICTION. The Court does not require the filing of an initial informational statement under 22 NYCRR 1250.3 (a). (22 NYCRR 1000.3) Fourth Department Rule Required Documents
Summary of Steps Required by 22 NYCRR 1245.3
(a) Appeals or Transferred Matters – Entry of Contact Information. In any appeal or transferred proceeding of a type designated by the Appellate Division for e-filing, counsel for the appellant or the petitioner, unless an exempt attorney, shall within 14 days of filing of a notice of appeal, or entry of an order granting leave to appeal, or entry of an order transferring a matter to the Appellate Division: (1) register or confirm registration as an authorized e-filer with NYSCEF; and (2) enter electronically in NYSCEF such information about the cause and parties, and e-file such documents, as the court shall require. (1) serve upon all parties in hard copy as provided by CPLR 2103 notification of that case or docket number, together with other pertinent information about the case and such documents as the court shall require, on a form approved by the Appellate Division; and (2) e-file proof of service of this notification (d) Entry of Information by Respondents and Other Parties. Within 20 days of service of the notification of the case or docket number as required in subdivision (b) or (c), counsel of record to each other party to the matter, unless an exempt attorney, shall: (1) register or confirm registration as an authorized e-filer with NYSCEF; and (2) enter electronically in NYSCEF such contact information and additional information as the court may require. (e) Designation of Other Persons and Electronic Filing Agents. (1) An authorized e-filer may designate another person to e-file a document on his or her behalf using the authorized e-filer’s user identification and password, but shall retain full responsibility for any such e-filed document. (2) Designation of an electronic filing agent. An authorized e-filer may designate another person or entity, including an appellate printer, to e-file documents on his or her behalf as a filing agent if that agent is also an authorized e-filer. Such filing agent shall e-file a statement of authorization, in a form approved by the Appellate Division, prior to or together with the first e-filing in that action by the agent. The principal authorized e-filer shall retain full responsibility for any document e-filed by such filing agent. Notification of Case Number and Other Information
22 NYCRR 1245.5 Electronic filing and service.
(a) All authorized e-filers who have entered information for a particular cause as set forth in sections 1245.3(a), (c) or (d) or 1245.4(d) of this Part shall thereafter e-file and be served electronically in that matter.
(b) Prior to the expiration of the 20-day period for entry of information described in section 1245.3(d) of this Part, filing and service of documents by, and service upon, parties who have not entered such information shall be in hard copy.
(c) Upon expiration of the 20-day period for entry of information described in section 1245.3(d) of this Part, service and filing by and upon all parties other than exempt attorneys and exempt litigants shall be by e-filing. Thereafter, an attorney who has neither entered information nor given notice as an exempt attorney pursuant to section 1245.4(a)(2) of this Part shall be deemed served with any e-filed document.
(d) At all times, service by and upon, and filing by, exempt attorneys and exempt litigants shall be in hard copy. E-filers shall e-file proof of any service made in hard copy.
(e) Site instructions. Technical instructions for e-filing documents shall be set forth on the NYSCEF site (www.nycourts.gov/efile).
(f) Formatting. In addition to compliance with the court’s general rules for document formatting, e-filed documents filed pursuant to this Part shall comply with the formatting requirements set forth in attachment A.
22 NYCRR 1245.11 Attachment A.
Formatting Requirements for Documents Electronically Filed
(1) General. In addition to compliance with the court’s general rules for document formatting, e-filed documents filed pursuant to this Part shall: (a) be identical in content to the hard copy; (b) comply with text searchable PDF archival format (PDF/A); (c) contain bookmarks linking the tables of contents of briefs and records to the corresponding page of the document; (d) be paginated to correspond to the hard copy; and (e) be scanned at a resolution sufficient to ensure legibility.
(2) Motions. Motion papers shall be filed together in one PDF document, which shall contain bookmarks linking to each separate motion document contained therein. (3) Multiple volumes. Each volume of a multi-volume record or appendix shall be submitted as a separate e-filed document.
(4) Corrections. Where the court directs filing of corrected documents, such corrected documents shall be filed electronically and by hard copy.
(5) PDF initial view. The initial view of a PDF shall be the bookmarks panel and page.
(6) PDF file size. E-filed documents shall each be no greater than 100MB in size. Please consult the electronic filing webpage of each Department of the Appellate Division for additional information about these formatting requirements.