New York Appeal Essentials
Taking the Appeal: How to Commence an Appeal in the Appellate Division
By J. Douglas Barics
The act of taking the appeal is the filing of the necessary papers to start the appeal itself. The papers needed to take an appeal are deceptively simple, but a mistake or missed deadline at this stage can result in the appeal being dismissed.
Appeals as of Right
When an appeal may be taken as of right under CPLR 5701(a) (see also CPLR 5702), CPLR 5515 provides that an appeal is taken by serving the other party with a notice of appeal, a copy of the order or judgment being appealed, the additional supporting papers are required by each Appellate Division under 22 NYCRR 600, 670, 800, or 1000, and then filing a copy of the notice of appeal with proof of service within thirty days of the notice of entry.
The notice of appeal, plus additional copies are required, is filed in the court which issued the order being appealed. The filing fee is $65, except for Family Court, which has no fees for the filing of any papers.
Upon the filing of the notice of appeal, the appeal itself is deemed to be taken. The notice of appeal is sent to the appropriate Appellate Division, and the timeline to perfect the appeal begins.
Appeals by Permission
When an appeal may be taken by permission under CPLR 5701(c) (see also CPLR 5702), the appeal is taken by permission through obtaining order from the judge who issued the order, an appellate justice if the trial judge declined to grant permission, or directly to an appellate justice without seeking leave from the trial judge. Under CPLR 5515, the appeal is taken when the order granting leave to appeal is entered. CPLR 5516 imposes time restrictions on any motion seeking leave to appeal, it must be noticed no less than eight days and no more than fifteen days after the notice of motion is served.
Upon the taking of an appeal by permission, the timeline to perfect the appeal begins.
Errors in Taking the Appeal
If errors are made in taking the appeal, they will be fatal to the appeal if they are deemed to be jurisdictional in nature. If they are not, the Appellate Division has the authority to correct errors or omissions in taking the appeal under CPLR 5520. Corrections are discretionary, and even if the Appellate Division has the authority to cure a non jurisdictional defect, it may decide not to exercise its discretion and dismiss the appeal.
The article New York Appeals: Taking the Appeal - How to Commence an Appeal in the Appellate Division 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 firstname.lastname@example.org 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.