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S12 | MONDAY, AUGUST 25, 2014 | Court of Appeals and Appellate Practice | NYLJ.COM

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Perfecting Civil Appeals in the New York

State Appellate Division: Which of the Three

Available Methods is Perfect for Your Case?

By: Vincent J. Wiscovitch, Esq.
Marie Bonitatibus, Esq.
Appellate Counsel Appellate Counsel

Counsel Press
Counsel Press

Although the CPLR is pretty easy to understand regarding how to “take an appeal” (see he Appendix Method
CPLR § 5515, requiring a notice of appeal to be served on the adverse party and properly hink of this approach as providing the court with excerpts from the full record. he ap-
iled), the rules on how to “perfect” an appeal are not quite so clear. In fact, the CPLR does pellant may choose the documents, or portions thereof, that they believe the court needs to
not even use the phrase “perfecting an appeal.” It is a term of art that refers to the steps an review in order to address the issues on appeal. his is not a license to cherry-pick the docu-

appellant must take in order to have an appeal addressed by the court. he various steps may ments that only support the appellant’s position, however. he appellant has a responsibility
include: (i) settling the transcript – if required,1 (ii) preparing, serving and iling the record to also provide the court with the documents, or portions thereof, that he/she in good faith
on appeal, (iii) preparing, serving and iling an appellant’s brief, (iv) placing the appeal on reasonably believes the respondent will want to rely upon, as well.
the court’s calendar and (v) arguing the appeal (optional).
In the First and Second Departments, the full record must be subpoenaed from the lower
his article will focus on the second step, involving the record on appeal. Many practitioners court so that the clerk can send up the record to the Appellate Division. In the hird and
are not aware that there are three methods available to choose from. In the course of nearly Fourth Departments, the appellant must prepare and serve one copy of the full record on
every business day, clients ask us to advise them on the best method of perfecting their ap- the respondent(s) who then must review it and stipulate to its correctness. If the parties
peal. We will introduce each of the three methods in order of the frequency in which they cannot agree, court intervention is required to settle the record. he parties then prepare
are used and provide some tips on when to use each one.
appendices to their own briefs including only those documents from the record that they

want the court to review in support of their arguments.
A few caveats are in order irst. 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 his method is used most oten when many documents, or a large volume of paper, are
CPLR § 2105 (except in the Fourth Department where they prefer a stipulation pursuant to contained in the record; for example, an appeal ater a lengthy trial. he appendix method
CPLR 5532) and a statement pursuant to CPLR 5531 (except in the First Department where is also particularly helpful when the issues on appeal are discrete. For example, where sum-
you are allowed to use the pre-argument statement that was iled along with the notice of mary judgment is granted in part and denied in part.
appeal). he 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 Depending on how large the full record is, using the appendix method can save a substan-
there is independent relevance for referring to them, e.g., the judge states in his/her order tial amount of money due to the lesser quantity of paper that gets reproduced. However, in
that “plaintif failed to argue such and such,” when, indeed, plaintif has that argument in the instances where a great deal of attorney time is required to review and parse through the

memorandum of law. Similarly, if a party’s only response or opposition is in the form of a record documents in order to deduce an appendix, the cost savings might not be so remark-
memorandum, then it should be included. he general rule of practice is if you include one able. herefore, a balance must be reached between the resources needed to prepare the
memorandum, then all memoranda should be included.
appendix and potential cost savings. he time spent excerpting iles and documents rather
than drating a brief may not be the best allocation.
Now, here are the three ways you can perfect your appeal:
Agreed Statement Method
CPLR 5527 permits the parties to prepare a statement specifying the questions presented for
he Full Record Method
the appeal, how the issues arose and how the lower court determined them. he agreement
his method provides the appellate court with everything the lower court has reviewed when must include a statement of “facts averred and proved or sought to be proved as are neces-
rendering the order/judgment at issue. When you are appealing from an order or interlocu-
sary to a decision of the questions.” he parties can include portions of the transcript of the
tory judgment, this will include the motion papers that the order/judgment is based upon proceedings and “other relevant matter” in their statement. he statement gets presented
with all of the exhibits presented to the court. If you are appealing ater a inal judgment, to the lower court, from where the appeal arose, within 20 days ater the notice of appeal
you must also include the judgment-roll, relevant exhibits from the hearing or trial if one was iled. he court will review it and determine whether any corrections or additions are
was held (or copies of those retained by the court), and any reviewable orders and opinions needed to fully present the questions for appeal. he inal agreed statement gets printed as
issued in the case. See CPLR 5526. he way in which the record is coordinated, detailed, a joint appendix.
numbered and printed is also speciied in Rule 5526.
his approach is hardly ever used. In fact, when we contacted a clerk for the Appellate Divi-
Most oten, appellants will use this method when the record is not going to be very large. For sion First Department to inquire about its frequency of usage, he advised us that, in his 20
example, if a motion to dismiss in lieu of an answer is granted, there will likely be very few years with the court, he has never received an appeal under this method. Our experience
documents involved. Appellants also use this approach when they feel the appellate court
is consistent in that we haven’t been requested to assist a client perfecting an appeal under
needs to see all of the documents presented to the lower court. For example, ater a sum- CPLR 5527. But, under the precept of full disclosure, we wanted you to be aware of its
mary judgment motion is denied or granted.
existence.

1, 2 For rules on settling a transcript, read “Appeals to the New York State Appellate Division: Settling the Transcript So, which method of perfecting your appeal will be perfect for you? If you need help decid-
Does Not Have to Be an Unsettling Experience” published at Counsel Press Appellate Practice Blog.
ing or deciphering, get in touch with Counsel Press; we will be happy to assist you.