Supreme Court of the State of New York Appellate Division Third Department and Appellate Division Fourth Department: Key Differences in Record and Brief Preparation (Part I)

Robert C. Brucato, Esq. There are thousands of courts across the United States and each one of them has their own set of rules and internal operating procedures. Although the appellate process is generally the same, it is important to be aware of the specific rules and procedures of the court you are appearing within. The focus of this article is on the New York State's Appellate Division Third and Fourth Departments and specifically on the key differences in the preparation of records and briefs in these two courts.

While reading the article, should you have any questions regarding the appellate rules at these [or other] courts, please do not hesitate to reach out to Robert Brucato directly. Mr. Brucato has been working in the appellate field for over 21 years, primarily in the Appellate Division Third and Fourth Departments and the United States Court of Appeals for the Second Circuit.

Stipulation v. Certification
The most significant difference occurs in the process of finalizing the contents of a record on appeal. The Appellate Division Fourth Department requires that all parties stipulate to the completeness of the record on appeal and sign a written stipulation pursuant to CPLR § 5532. If the adversary on an appeal refuses to stipulate to the contents, then the only alternative is for the appellant to make a motion to the lower court judge to settle the record on appeal. When the order is received from the lower court judge that order then will need to be certified by the county clerk’s office from which the appeal derived. When the appeal is perfected at the Fourth Department, the original signed stipulation, or the certified copy of the order settling the record, must be included in the original record. Either way, it is not possible to file the record on appeal without agreement from your adversary, or a decision as to the contents from the lower court judge.

In the Appellate Division Third Department, the process can be less complicated since the Court will allow the appellant to certify the record, pursuant to CPLR § 2105. The appellant can simply certify that he has compared the originals to what is on file at the county clerk’s office and the record on appeal is complete. The original certification must be included in the original record on appeal.

If, however, there is a transcript where testimony has been taken, then the appellant will need to settle the transcript with the adversary and proof of that settlement will need to be included in the record on appeal. In that case, it may be preferential to simply have the adversary stipulate to the full record on appeal. Additionally, all original proceedings would require a stipulation to the contents of the record.

The convenience at the Appellate Division Third Department is that, if there is no transcript where there was testimony taken, the appellant can file the appeal without having to consult his adversary as to the contents of the record on appeal.

Transfer Proceedings
Another major difference between the Third Department and Fourth Department is when an appellant has a transfer proceeding that needs to be perfected. In the Appellate Division Fourth Department, the original papers are transferred directly from the lower court. The Fourth Department then issues an order setting a date by which the appellant must file 10 copies of his/her brief and proof of service of one copy on the adversary.

At the Third Department, the appellant must prepare a printed record on review. The record on review is similar to a record on appeal with the main difference being that instead of a notice of appeal, there is an order of transfer. There is no filing fee for a record on review at the Third Department. The appellant needs to file 10 copies of the record on review along with 10 copies of the appellant’s brief, and serve one copy of the record and two copies of the brief on the adversary.

Consolidating Appeals
The process of consolidating appeals, which arise out of the same action, also differs in the Third and Fourth Departments. The Appellate Division Fourth Department requires a motion to be made to consolidate multiple appeals when there is more than one order or judgment. The Court has been known to take a very strict interpretation of the rules requiring consolidation by motion. Additionally, if there are multiple appellants appealing from a single order or judgment, the Fourth Department requires a Stipulation of Consolidation to be signed by the parties. This stipulation is then either filed at the Court, or included in the record on appeal. The consolidation requirements can be a stumbling block for an appellant if they are approaching their deadline and did not take care to follow the letter of the rules with enough time for the Court to grant a motion to consolidate.

The process is simpler at the Appellate Division Third Department in that if appeals arise out of the same action, they are automatically consolidated without the necessity of a motion, or stipulation. This saves the attorney both time and cost.

Read Part II...
In Part II of this article, we cover how the deadlines for perfecting an appeal are determined in the Appellate Division Third and Fourth Departments; the differences in the motion process for extensions of time, as well as pre-argument statements and condensed transcripts, and finally going over the differences in the preparation of a brief. Please proceed to Part II.

Tagged: Appellate Practice, Appellate Services, New York State Appellate Division Third Department, New York State Appellate Division Fourth Department, Appellate Procedure