Perfecting Appeals in the Appellate Term First 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. As you may have guessed, part 1 will discuss perfecting in the Appellate Term, First Department and part 2 will discuss perfecting in the Appellate Term, Second Department.
The Appellate Term, First Department hears and decides appeals from the Criminal and Civil Courts of the City of New York for New York and Bronx Counties, including appeals from the Housing Part and the Small Claims Part.
Notice of Appeal
Your Notice of Appeal or Motion for Leave to 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 of 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. There is a $30.00 filing fee. It is the responsibility of the Clerk to transmit the Notice of Appeal to the Appellate Term.
The original transcript must be filed in the Appellate Term along with the reproduced Record on Appeal. As the Appellant, you will be 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.
Upon perfecting the Appeal, the Appellant must include a Stipulation Settling the Transcript at the end of the Record. If the parties cannot agree on corrections or amendments to the transcript, the transcript must be settled by the Circuit Court judge. Unlike in the Appellate Division, no Affirmation of Compliance is permitted.
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.
Time to Perfect Appeal
Per 22 NYCRR § 640.6(a)(1), the Appellant must procure a Clerk’s Return, from the original court, and perfect the appeal in the Appellate Term First, Department, within 30 days after filing the Notice of Appeal. (Yikes!) While any appeal not perfected within 30 days from the filing of the Notice of Appeal is subject to dismissal by motion of the opposing party, the Appellate Term, First Department does not have a rule authorizing the Court to dismiss appeals sua sponte. The Appellate Term clerks will accept appeals past the 30-day mark due to delays in ordering and settling the transcript.
A Clerk’s Return is obtained by presenting the Appeals Clerk of the Civil Court with five sets of the reproduced record, proof of service and the original transcript of proceedings, if any. Once the Appeals Clerk has checked the record on appeal for compliance, the Clerk will issue a Clerk’s Return, and the appeal can be perfected with the Appellate Term, First Department.
A reproduced Record on Appeal is not required for criminal appeals. Rather, the original transcripts of proceeding must be presented to the Appeals Bureau in advance of the filing deadline. The Appeals Clerk will then handle the settling of the transcript, and send the full record to the Appellate Term, First Department, along with the Clerk’s Return. Please note, however, that the Appellate Term will not accept criminal appellant’s briefs until it has received the full record and transcripts from the lower court. The Appellant must serve one copy of the transcript and one copy of the Appellant’s brief to the District Attorney’s office.
Service and Filing Requirements
For appeals from Civil Court, the Appellant must file the Clerk’s Return and five copies of both the record and brief. For appeals from Small Claims Court, the Appellant must file the Clerk’s Return and five copies of the brief.
Appeals from Criminal Court require that five copies of the brief be filed, along with the original record (certified by the Clerk of the Criminal Court) and the transcript of the proceedings (certified by the trial judge).
Records and briefs are deemed filed only as of the time that they are actually received by the Appellate Term, First Department’s Clerk’s office, and must be accompanied by proof of service of one copy of the documents on all parties to the appeal.
Contents of Record and Briefs
The record must be paginated consecutively. It must contain page headings, a table of contents and a cover page. If appealing a final judgment, the record must also contain the following: 1) a statement pursuant to CPLR 5531; 2) the Notice of Appeal; 3) decision, or verdict appealed from; 4) the judgment; 5) pleadings; 6) the transcript; 7) exhibits; 8) any other reviewable order or opinion in the case; 9) any post-trial motions; 10) stipulation dispensing with exhibits; 11) stipulation settling the transcript; 12) statement of no opinion; and 13) Certification pursuant to CPLR 2105.
If appealing an interlocutory order, the record must include: 1) a statement pursuant to CPLR 5531; 2) the Notice of Appeal; 3) order appealed from; 4) pleadings; 5) the notice of motion or order to show cause with supporting affidavits and exhibits; 6) affidavits in opposition with exhibits; 7) reply affirmations with exhibits; 8) statement of no opinion; and 9) Certification pursuant to CPLR 2105.
Briefs must have a cover and be typed in 14pt font with footnotes no less than 12pt. 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) Table of Contents; 2) Questions Presented; 3) Nature of the Case; 4) Argument; and 5) Conclusion.
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
All brief covers must indicate whether the appeal is to be argued or submitted without argument, and must include the name of the attorney designated to argue or submit the appeal. No more than 15 minutes is permitted per side.
Much like the Appellate Division, First Department, the Appellate Term, First Department operates on a calendar system, whereby Appellants must perfect their appeals by a particular date in order to be placed on an upcoming term calendar. The 2020 calendar can be accessed by clicking HERE. Oral argument for any particular term is held on two designated days during that calendar month.
PLEASE NOTE: The Appellate Term, First Department DOES NOT notify parties of their oral argument dates. Rather, argument dates are published in the New York Law Journal two weeks prior to the first day of the term. AppealTech’s dedicate Appellate Counsel team is always happy to contact the Appellate Term, First Department to inquire about your oral argument date.
While perfecting an Appeal in the Appellate Term, First Department can seem confusing, AppealTech is here to assist you with all appellate printing needs and any procedural hurdles you may face. Trust AppealTech to handle the preparation of the record and formatting of the brief, so that you and your team can focus on writing a winning brief, and thoroughly preparing for oral argument.
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- U.S. Court of Appeal for the Tenth Circuit has posted proposed rule changes; Public comment ends 10/25/19
- Perfecting Appeals in the Appellate Term, Second Department
- The New York Appellate Division, Fourth Department announces expansion of e-filing categories starting October 1, 2019