Supplementing the Record on Appeal Versus Enlarging the Scope of the Record in the New York Appellate Division, Second Department
As in all departments of the New York Appellate Division, in order to file a supplemental record in the Second Department, the filer must first obtain a stipulation of the parties or an order of the court. However, there is frequently much confusion about what may be included in a supplemental record on appeal.
On June 12, 2019, the Second Department announced that it had added a provision to its local rules, Section 670.7, and made clear that the discretion of the parties to stipulate to a supplemental record on appeal is limited. Such stipulations may only be utilized to include material which would have been a proper part of the record on appeal under statute and local rule, but which was initially inadvertently left out. Accordingly, only the court may order a supplemental record which enlarges the scope of the record on appeal. Historically, such orders to enlarge the scope of the record are quite rare.
Under the new Section 670.7, the stipulation to supplement the record must clearly contain language that:
- The agreed contents are properly part of the Record on Appeal as that term is defined in CPLR 5526 and Section 1250.7(b) of the Practice Rules of the Appellate Division (22 NYCRR § 1250.7[b]), and
- Such materials were inadvertently omitted from the Record on Appeal previously filed with the court.
The new Section 670.7 has no corresponding section in the published local rules of the First, Third, or Fourth Departments. Nevertheless, supplemental records on appeal were never meant to help parties improperly expand the scope of the record, so its terms are just a codification of existing practice. Thus, AppealTech does not recommend attempting to expand the scope of the record on appeal by stipulating to a supplemental record on appeal in any of the four departments.
If you have any questions about the new Section 670.7 or any of the Appellate Division rules, please contact AppealTech at (212) 213-3222 or [email protected]
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