A Comprehensive Guide to Joint Records and Appellate Consolidation at the New York State Appellate Divisions
There are three situations in which a joint record/appendix, or appellate consolidation occurs in the four New York Appellate Divisions: (1) joint record/appendix of cross-appeals and concurrent appeals from the same judgment; (2) joint record/appendix of appeals from separate judgments and orders from the same action, and (3) consolidation of appeals from separate judgements or orders from different actions presenting similar issues.
The Appellate Divisions employ different procedures for the above. Often, mutual agreement between the parties as to what a joint record or appendix will consist of will suffice, even when the court has no express rule. Whereas, when different actions are involved some departments permit or require motion practice. Let’s examine the differences so you can know what to expect before you perfect.
Consolidation of Cross Appeals and Concurrent Appeals of the Same Judgment or Order
With respect to cross appeals and concurrent appeals from the same judgment or order, the First and Second Departments require that parties consult together and file a joint record or appendix, including the notice of appeal and cross-appeal. Moreover, both parties must share in the cost (22 NYCRR 600.11[d]; 670.8[c]). This is a timely and equitable approach to joint filings.
The Third Department’s rule differs. When a cross appeal of the same judgment or order is filed by the plaintiff then the plaintiff is deemed first to file (22 NYCRR 800.9[e]). This rule suggests that the appeal and cross appeal shall be perfected together, but imposes on the plaintiff the burden of paying for the cost of record or appendix preparation. This rule actually resulted in an appeal, which held that cross-appellants were not obliged to contribute to the cost of preparing a record in that court and that such costs were recoverable as disbursements awarded to the prevailing party on the appeal. Derr v Fleming (108 AD3d 854 [3d Dept. 2013]).
The Fourth Department does not require that cross-appeals be consolidated but rather permits consolidation upon motion or upon stipulation (22 NYCRR 1000.4[b]) to the court. The parties likewise stipulate to which party will be assembling the record and bearing the initial costs. By not requiring consolidation it’s possible in the Fourth Department that the issues arising from a same judgment or order can conceivably be heard by a second judicial panel if no motion or stipulation is submitted.
Appeals of Separate Orders or Judgements (same action)
The First and Third Departments have no express rule regarding appeals of separate orders or judgments from the same action, thus defaulting joint record procedure to the clerk’s own “house rules”. Often, similar to the Second Department, party stipulation suffices.
The Second Department has a favorable approach for consolidation of appeals of separate orders or judgments from the same action. The court expressly permits for party agreement, without court permission, if each appeal was timely perfected (22 NYCRR 670.7[c]). This takes routine consolidation out of the courts and hands it over to party agreement, plus it ensures that the appeals will be heard by one justice panel.
The Fourth Department is the most stringent, as the court only permits for a joint record or appellate consolidation upon motion showing justification (22 NYCRR 1000.4[b]); 1000.13[n]). This results in additional motion practice that balances the burden of a heavier calendar with the benefit of ensuring that the orders being appealed from truly present similar issues.
Appeals of Separate Orders or Judgments (different actions)
Again, the First and Third Departments have no express rule regarding appeals of separate orders or judgments from different actions. Additionally, the Fourth Department is also silent on the issue. In this scenario we advise reaching out to an experienced appellate partner, such as AppealTech who has established relationships with appellate clerks, to contact the court regarding consolidation options, if any.
With respect to consolidation of separate judgments or orders from different actions (concerning similar issues), the Second Department does not permit for consolidation but nonetheless provides that such appeals may be heard together upon written request of a party (22 NYCRR 670.7[c]).
Overall, the Second Department is quite thorough regarding joint records and appellate consolidation. There it’s possible that all forms of joint record filings or consolidation can be achieved through either party agreement or request to the court. Motion practice has been reduced, its rules are express and streamlined, and one judicial panel will hear the related appeals.
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