New York Appeal Essentials: Perfecting the Appeal Part 1 of 3
Settling The Transcripts
By J. Douglas Barics
When testimony was taken by the lower court, a certified copy of the transcripts must be submitted as part of the appeal. Before being submitted, they must be reviewed for errors, and if any are found, corrected before they are filed with the Appellate Division. Failure to provide the Appellate Division with the transcripts will result in the appeal being dismissed. See Schwartz v Schwartz (2nd Dept. 2010) 73 AD3d 1156.
Transcripts are corrected by a process known as settling the transcripts, the process is found in CPLR 5525.
A. Settling the Transcripts by Stipulation
The most common and efficient way to settle transcripts is by mutual agreement. The parties may agree to any necessary corrections by a joint stipulation. Very often, the appellant prepares the proposed changes, and the respondent may make any additional changes to the proposed agreement. Once all typographical errors are mutually corrected by stipulation, the transcripts are deemed settled.
B. Settling the Transcripts under CPLR 5525(c)
CPLR 5525(c) provides the procedure by which transcripts can be settled without a stipulation.
1. The Appellant's Proposed Amendments to the Transcripts
Within 15 days of receiving the transcripts, the appellant shall make any proposed amendments and send them with a copy of the transcripts to the respondent. CPLR 5525(c)(1). The appellant is required to make this proposal by a notice of settlement, which specifically refers to CPLR 5525(c), and state that if the respondent fails to object within the timeframe specified in CPLR 5525(c)(1), then the provisions of CPLR 5525(c)(2) shall apply. CPLR 5525(c)(3).
2. The Respondent's Objections and Proposed Amendments to the Transcripts
The respondent then has 15 days to propose any amendments or objections to the appellant's amendments. CPLR 5525(c)(1).
3. The Failure to Object by the Respondent
If the respondent fails to propose their own amendments or object within the 15 days, the appellant's proposals shall be deemed to be correct. CPLR 5525(c)(2).
4. Settling the Transcripts by the Court
If the respondent does submit their own amendments or objections, and the appellant and respondent are unable to agree upon the corrections, the appellant may submit the transcripts, the appellant's amendments, and the respondent's objections and amendments, to the judge who presided over the trial, giving the respondent 4 days notice. CPLR 5525(c)(1).
5. Each Appellate Division May have its own rules that vary from CPLR 5525
The rules and timeframe set forth in CPLR 5525 may be superseded by the specific rules to each appellate division. CPLR 5525(e)
The submission of transcripts that are not settled can result in the appeal being dismissed. See Zaikowski v. Monzon (2nd Dept. 2000) 277 A.D.2d 459
The article New York Appeals: Perfecting the Appeal - Settling The Transcripts 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.
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