Appendix Method. If the appellant elects to proceed by the appendix method, the appendix shall be printed or otherwise reproduced as provided in 22 NYCRR 1250.6 and 1250.7 . (22 NYCRR 1250.5 (c))
Appellant's brief and appendix.
The brief of the appellant must contain in the following order: an appendix, which may be bound separately, containing only such parts of the record on appeal as are necessary to consider the questions involved, including those parts the appellant reasonably assumes will be relied upon by the respondent (CPLR 5528(a)(5)) However, the appellate division in each department may by rule applicable in the department authorize an appellant at his election to proceed upon a record on appeal printed or reproduced in like manner as an appendix, and in the event of such election an appendix shall not be required. (CPLR 5528(a)(5))
A joint appendix bound separately may be used. It must be filed with the appellant's brief. (CPLR 5528 (d))
Contents of the Appendix.
(1) The appendix must include those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent including, where applicable, at least the following:
(i) notice of appeal or order of transfer;
(ii) judgment, decree or order appealed from;
(iii) decision and opinion of the court or agency, and report of a referee, if any;
(iv) pleadings, and in a criminal case, the indictment or superior court information;
(v) material excerpts from transcripts of testimony or from documents in connection with a motion. The excerpts shall include all the testimony or averments upon which the appellant relies and upon which it may be reasonably assumed the respondent will rely. The excerpts shall not be misleading or unintelligible by reason of incompleteness or lack of surrounding context;
(vi) copies of relevant exhibits, including photographs, to the extent practicable;
(vii) if pertinent, a statement identifying bulky, oversized or dangerous exhibits relevant to the appeal, as well as identifying the party in custody and control of each exhibit; and
(viii) the appropriate certification, stipulation or settlement order pursuant to 22 NYCRR 1250.7 (g). (22 NYCRR 1250.7 [d](1)).
The appendix shall have a cover complying with subdivision (b)(1) of this section and shall include the statement required by CPLR 5531 and a table of contents. (22 NYCRR 1250.7 [d](2)).
The court may require such other contents in an appendix in a criminal cause as it deems appropriate. (22 NYCRR 1250.7 [d](3)).
If a settled transcript of the stenographic minutes, or an approved statement in lieu of such transcript, is not included in the submissions, the appellant must cause a digital copy of the transcript or statement to be filed together with the brief. (22 NYCRR 1250.7 [d](4)).
A party proceeding by the appendix method must file one digital copy of the complete record, plus an original and five copies of the brief and appendix, and must serve one hard copy of the brief and appendix upon each other party to the appeal (22 NYCRR 1250.9 [a] ). Condensed Format of Transcripts Prohibited. No record or appendix may include a transcript of testimony given at a trial, hearing or deposition that is reproduced in condensed format such that two or more pages of transcript in standard format appear on one page, unless the transcript was submitted in that format to the court from which the appeal is taken. (22 NYCRR 1250.7 (e))
Settlement of Transcript or Statement.
Regardless of the method used to prosecute any civil cause, if the record includes a transcript of the stenographic minutes of the proceedings or a statement in lieu of such transcript, such transcript or statement shall first be either stipulated as correct by the parties or their attorneys or settled pursuant to CPLR 5525. (22 NYCRR 1250.7 (f))
Certification of Record or Appendix.
A reproduced full record or an appendix shall be certified either by: (1) a certificate of the appellant's attorney pursuant to CPLR 2105; (2) a certificate of the proper clerk; or (3) a stipulation in lieu of certification pursuant to CPLR 5532 or, if the parties are unable to stipulate, an order settling the record. The reproduced copy containing the signed certification or stipulation shall be marked “Original.” A party may move to waive certification pursuant to this rule for good cause shown, and shall include with the motion a copy of the proposed record or appendix. (22 NYCRR 1250.7 (g))
Memoranda of law and oral argument on motions constitute legal argument and generally are not included in the record on appeal. They may be included in the record on appeal in some circumstances, however, such as where preservation for review is at issue (see e.g., Matter of Lloyd v Town of Greece Zoning Bd. of Appeals [appeal No. 1], 292 AD2d 818).