Perfecting Appeals in the Appellate Term, Second Department
While many litigators in New York have a working knowledge and general understanding of the rules of the Appellate Division, First and Second Departments, perfecting appeals in the Appellate Term, First and Second Departments can be intimidating. In this two-part article, we will discuss the basic rules and procedures for perfecting appeals in the Appellate Term, First and Second Departments. This second part of the series discusses perfecting in the Appellate Term, Second Department. If you are interested in perfecting in the Appellate Term, First Department, see part 1 of this article.
The Appellate Term, Second Department hears and decides appeals from the Criminal, County, Civil, Town and Village Courts in the Second and Eleventh Judicial Districts (encompassing Kings, Richmond and Queens counties) as well as the Ninth and Tenth Judicial Districts (encompassing Dutchess, Orange, Putnam, Rockland, Westchester, Nassau and Suffolk counties).
Notice of Appeal
Your Notice of Appeal must be filed within 30 days after the service of the Order or Judgment being appealed, with Notice of Entry. Any Notice of Cross-Appeal must be filed by the later of either the balance of the 30 days after the service of Order or Judgment with Notice of Entry, or within 10 days of the first Notice of Appeal.
Your Notice of Appeal should be filed in the court of original instance. You will need to file the original plus one copy of the Notice of Appeal, along with the Order or Judgment that you are appealing and the Notice of Entry, with proof of service. You will also be required to serve one copy on your opposition. It is the responsibility of the Clerk to transmit the Notice of Appeal to the Appellate Term.
Filing fees vary depending on the court in which you are filing your Notice of Appeal. There is a $65.00 fee in County Courts for civil matters, a $30.00 fee in District Court and City Court, and a $5.00 fee if filing a Notice of Appeal in Town or Village Courts.
As the Appellant, you will responsible for serving a Request for a Transcript of the Proceeding to the court reporter.
For civil appeals, the Appellant must make any proposed amendments to the transcript and then serve the proposed amendments, a Notice of Transmittal of Transcript and a copy of the transcript on the Respondent within 15 days of receipt of same. Within 15 days of service, the Respondent must then make any proposed amendments or rejections of the Appellant’s corrections and serve them on the Appellant. It is the responsibility of the Appellant to correct the original transcript and file same with the Clerk of Civil or County Court. The Clerk shall then organize and send the entire case file, along with the settled transcript to the Appellate Term, Second Department.
For criminal appeals, the Appellant must file the original transcript with the Appeal Clerk of the Criminal Court, who then transfers the transcript to be settled by the trial judge, prior to filing the transcript with the Appellate Term. The Appellant must also serve a copy of the transcript to the District Attorney’s office with the Appellant’s brief. The District Attorney must return a copy of the transcript to the Appellant upon the argument or submission of the appeal, unless instructed otherwise.
Time to Perfect Appeal
Civil Appeals must be perfected within 90 days of the Appellate Term, Second Department’s receipt of the original papers with the Clerk’s Return from the Court of original instance. Parties will be notified of the due date by the Clerk’s Office by mail. Criminal appeals must be perfected within 90 days of the filing of the Notice of Appeal. Appeals not perfected within the time limitations are subject to dismissal by the Court sua sponte.
Once the Notice of Appeal is received by the lower court, the Appeals Clerk will assemble the original papers, including the settled transcript. The Clerk will then issue a Clerk’s Return and send the entire file to the Appellate Term, Second Department.
Record on Appeal
The Clerk’s Return and the original papers from the lower court constitute the Record on Appeal. Unless otherwise ordered by the Appellate Term, parties may, but need not, print copies of the Record on Appeal. The parties may also choose to attach relevant portions of the Record as exhibits to their briefs.
Service and Filing Requirements
Note: The Appellate Term, Second Department must receive the entire file from the court of original instance before it will accept the Appellant’s brief for filing. Briefs are deemed filed in the Appellate Term, Second Department only as of the time they are actually received by the Clerk and must be accompanied by a proof of service upon all necessary parties. Service by mail is permitted, but must be postmarked on or before the deadline. If service is made by regular mail, five days will be added to the deadline to file a Response/Reply. If service is made by overnight mail, one day will be added to the deadlines.
For civil appeals, the Appellant must file an original plus five copies of the Appellant’s Brief with proof of service. For criminal appeals, a proof of service of one copy of the transcript of proceedings must be filed together with an original and five copies of the Appellant’s Brief, with proof of service.
An original plus five copies of the Respondent’s Brief must be filed within 21 days after service of the Appellant’s Brief. An original plus five copies of the Reply Brief must be filed within 7 days after service of the Respondent’s Brief.
Specifications for Briefs
Briefs must have a stiff cover and be bound on the left-hand side. Brief covers must indicate whether the appeal will be argued or submitted without argument, and must include the name of the attorney who will argue and the amount of time requested for oral argument. No more than 15 minutes of argument will be permitted for each side. The brief cover must also contain the original index number, the appellate caption and court, the title of the document, and the names, addresses and telephone numbers of the attorneys for each party. The Appellate Term Calendar number must be listed on the upper left-hand corner of the cover.
Briefs must be typed in a font no smaller than 11 point. Lines must be double-spaced, and margins must be at least one inch. Appellant and Respondent Briefs are limited to 50 pages, and Reply Briefs are limited to 20 pages. Briefs must contain an original signature by the attorney.
Briefs must include: 1) Statement Pursuant to CPLR 5531; 2) Table of Contents; 3) Questions Presented; 4) Nature of the Case; 5) Argument; and 6) Conclusion. A Respondent’s Brief may omit the Questions Presented section, unless the Respondent disagrees with the statements made by the Appellant. In that case, the Respondent may include a Counterstatement of Questions Presented and Nature of Case.
For criminal appeals, the Appellant’s brief shall begin with: 1) either the entire Judgment or Order Appealed From, or its material provisions including the date; 2) the sentence imposed; and 3) a statement whether an Order issued pursuant to CPLR 460.50 is outstanding, and if so, the date of such Order, the name of the judge who issued the Order and whether the Appellant is free on bail or on his own recognizance.
While there is no filing fee in the Appellate Term, First Department at the time of perfection, the Clerk’s Return is $300.00.
Calendar Dates and Argument
An appeal is placed on the Appellate Term, Second Department’s calendar after the Appellant files its opening brief. The date for Oral Argument is published in the New York Law Journal no less than twelve days prior to the date of the term. Attorneys for all parties will also receive a postcard with the argument date no less than five days prior to the date of the term.
The Appellate Term, First and Second Departments each have unique and nuanced rules and regulations, which can be confusing and intimidating for attorneys who are not familiar with practice in these courts. Fortunately, AppealTech’s Appellate Counsel team is available and happy to help you navigate your way through all both Appellate Term courts.
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