New York Appeal Essentials: Perfecting the Appeal Part 2 of 3
The Record on Appeal
By J. Douglas Barics
The record is the engine that drives the appeal. Every argument, every fact, every claim of error, must be supported by the record. A poorly prepared record can destroy even the best appeal; an insufficient record can result in an appeal being dismissed, a record that contains material not considered by the trial court can have the extraneous material struck, and a record that does not conform to the statutory requirements can be rejected.
The authority for a format of the record is found in both the CPLR and each Appellate Divisions specific rules of procedure.
Definition of the Record on Appeal
The record on appeal is a bound volume of the evidence and material used by the trial court in reaching its determination. In addition, it also contains the papers which give rise to appellate jurisdiction.
If the appeal is taken from an order which decided a motion, the record would normally include the motion, supporting papers and all exhibits, the opposition papers and exhibits, and the reply with all exhibits.
For a judgment following a trial, the record would include of the testimony, all trial exhibits and all other evidence considered by the court.
All records must also include a cover, a table of contents, a statement pursuant to CPLR 5531 or allowable alternative, the notice of appeal or order granting permission to appeal, the order or judgment being appealed, the decision, if separate from the judgment or order, and certification. Each Appellate Division's specific rules will vary slightly, and it will also depend on the type of record being used.
Under no circumstances may the record include any material which was not considered by the trial court.
The party taking the appeal is responsible for preparing and submitting the Record on Appeal. Failure to file a record, or filing of an inadequate record will result in the appeal being dismissed.
There are four ways to prepare a record. There is the full record reproduced, the appendix method, the original record, and the statement in lieu of record. Each method is governed by the CPLR and the individual rules of procedure for each appellate division.
Full Record Reproduced: CPLR 5528[a], CPLR 5526
The full record reproduced is a complete copy of everything the lower court used in reaching its decision. CPLR 5528[a] provides the authority for the full record. The format is governed by CPLR 5526 and each individual department's specific rules. For the First Department, it is 22 NYCRR 600, and the Second Department uses 22 NYCRR 670.
The full record must contain the following: the notice of appeal, the order or judgment being appealed, the judgment roll (see CPLR 5017), all exhibits, and all interlocutory orders subject to review from a final judgment under CPLR 5501. The First Department requires that all items listed in 22 NYCRR 600.10[b] be included, and the Second Department's requirements are contained in 22 NYCRR 670.10.2[b].
The full record reproduced is commonly used in appeals from motions, or in complex litigation involving multiple issues that require the entire record being reviewed.
Appendix Method: CPLR 5528[a].
The appendix method uses only a portion of the full record. The material that makes up the appendix is decided by the appellant, but it must be enough for the appellate division to properly review the arguments on both sides. An appendix that omits material that the respondent would likely need can result in penalties ranging anywhere from costs to the appeal being dismissed. The principle behind the appendix method is to allow the appellant to cull out useless material that is not relevant to the appeal. Its not a means to create a skewed record, and an appendix that contains only a portion of the record that is favorable to the appellant will not suffice.
Each department has its own rules governing the appendix method. For example, in the Second Department, the original file must be subpoenaed and send to the Appellate Division. In the Third Department, a single copy of the full record is created and sent to the Appellate Division.
Statement in Lieu of Record: CPLR 5527
This method is rarely if ever used. It allows both parties to stipulate on facts and use that stipulation as the record.
The final method is not available in most appeals, nor is it authorized under the CPLR. Instead, the authority for the original record is found within each department's individual rules. For the First Department, it is authorized by different subdivisions 22 NYCRR 600. For example, 22 NYCRR 600.6 governs appeals from the Family Court, and specifically authorizes the use of the original record. For the Second Department, 22 NYCRR 670.9[d] provides a list as to which appeals may use the original record.
For appeals using the original record, a bound record is not necessary. As its name implies, the original record is sent to the Appellate Division.
The article "New York Appeal Essentials: The Record on Appeal" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at email@example.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com
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J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.