Although the CPLR is pretty easy to understand regarding how to “take an appeal” (see CPLR § 5515, requiring a notice of appeal to be served on the adverse party and properly filed), the rules on how to “perfect” an appeal are not quite so clear. In fact, the CPLR does not even use the phrase “perfecting an appeal.” It is a term of art that refers to the steps an appellant must take in order to have an appeal addressed by the court. The various steps may include: (i) settling the transcript – if required,1 (ii) preparing, serving and filing the record on appeal, (iii) preparing, serving and filing an appellant’s brief, (iv) placing the appeal on the court’s calendar, and (v) arguing the appeal (optional).
This article will focus on the second step, involving the record on appeal. Many practitioners are not aware that there are three methods available to choose from. In the course of nearly every business day, clients ask us to advise them on the best method of perfecting their appeal. We will introduce each of the three methods in order of the frequency in which they are used and provide some tips on when to use each one.
A few caveats are in order first. With any appeal, no matter which method you use, you must include the notice of appeal, the order or judgment being appealed, a statement pursuant to CPLR § 2105 (except in the Fourth Department where they prefer a stipulation pursuant to CPLR 5532) and a statement pursuant to CPLR 5531 (except in the First Department where you are allowed to use the pre-argument statement that was filed along with the notice of appeal). The rules on whether transcripts must be included in the record are addressed in a separate article.2 Finally, memoranda of law are not to be included in the record unless there is independent relevance for referring to them, e.g., the judge states in his/her order that “plaintiff failed to argue such and such,” when, indeed, plaintiff has that argument in the memorandum of law. Similarly, if a party’s only response or opposition is in the form of a memorandum, then it should be included. The general rule of practice is if you include one memorandum, then all memoranda should be included.
Now, here are the three ways you can perfect your appeal:
The Full Record Method
This method provides the appellate court with everything the lower court has reviewed. When you are appealing from an order or interlocutory judgment, this will include the motion papers that the order/judgment is based upon with all of the exhibits presented to the court. If you are appealing after a final judgment, you must also include the judgment-roll, relevant exhibits from the hearing or trial if one was held (or copies of those retained by the court), and any reviewable orders and opinions issued in the case. See CPLR 5526. The way in which the record is coordinated, detailed, numbered and printed is also specified in Rule 5526.
Most often, appellants will use this method when the record is not going to be very large. For example, if a motion to dismiss in lieu of an answer is granted, there will likely be very few documents involved. Appellants also use this approach when they feel the appellate court needs to see all of the documents presented to the lower court. For example, after a summary judgment motion is denied or granted.
The Appendix Method
Think of this approach as providing the court with excerpts from the full record. The appellant may choose the documents, or portions thereof, that they believe the court needs to review in order to address the issues on appeal. This is not a license to cherry-pick the documents that only support the appellant’s position, however. The appellant has a responsibility to also provide the court with the documents, or portions thereof, that he/she in good faith reasonably believes the respondent will want to rely upon, as well.
In the First and Second Departments, the full record must be subpoenaed from the lower court so that the clerk can send up the record to the Appellate Division. In the Third and Fourth Departments, the appellant must prepare and serve one copy of the full record on the respondent(s) who then must review it and stipulate to its correctness. If the parties cannot agree, court intervention is required to settle the record. The parties then prepare appendices to their own briefs including only those documents from the record that they want the court to review in support of their arguments.
This method is used most often when many documents, or a large volume of paper, are contained in the record; for example, an appeal after a lengthy trial. The appendix method is also particularly helpful when the issues on appeal are discrete. For example, where summary judgment is granted in part and denied in part.
Depending on how large the full record is, using the appendix method can save a substantial amount of money due to the lesser quantity of paper that gets reproduced. However, in instances where a great deal of attorney time is required to review and parse through the record documents in order to deduce an appendix, the cost savings might not be so remarkable. Therefore, a balance must be reached between the resources needed to prepare the appendix and potential cost savings. The time spent excerpting files and documents rather than drafting a brief may not be the best allocation.
Agreed Statement Method
CPLR 5527 permits the parties to prepare a statement specifying the questions presented for the appeal, how the issues arose and how the lower court determined them. The agreement must include a statement of “facts averred and proved or sought to be proved as are necessary to a decision of the questions.” The parties can include portions of the transcript of the proceedings and “other relevant matter” in their statement. The statement gets presented to the lower court, from where the appeal arose, within 20 days after the notice of appeal was filed. The court will review it and determine whether any corrections or additions are needed to fully present the questions for appeal. The final agreed statement gets printed as a joint appendix.
This approach is hardly ever used. In fact, when we contacted a clerk for the Appellate Division First Department to inquire about its frequency of usage, he advised us that, in his 20 years with the court, he has never received an appeal under this method. Our experience is consistent in that we haven’t been requested to assist a client perfecting an appeal under CPLR 5527. But, under the precept of full disclosure, we wanted you to be aware of its existence.
So, which method of perfecting your appeal will be perfect for you? If you need help deciding or deciphering, get in touch with Counsel Press; we will be happy to assist you.
This article was published on August 25, 2014 in The New York Law Journal "Court of Appeals and Appellate Practice" Special Report. To access the publication, click here; see pp. 12-13 for this article.
1,2For rules on settling a transcript, read a recently published article titled Appeals to the New York State Appellate Division: Settling the Transcript Does Not Have to Be an Unsettling Experience.
Tagged: Appellate Practice, Appellate Procedure, New York State Appellate Division First Department, New York State Appellate Division Second Department, New York State Appellate Division Third Department, New York State Appellate Division Fourth Department