New York has a unique appellate system that can be difficult to navigate. This article is intended to shed light on various features of appellate practice in New York, with an emphasis on appeals before the Appellate Division.
I. Structure of New York’s Appellate System
Appeals in the first instance are generally brought before the Appellate Division of the Supreme Court of New York. The Appellate Division is a single statewide court comprised of four departments. The First Department has jurisdiction over appeals from the Bronx and New York County; the Second Department hears appeals from, among other counties, Kings and Queens; the Third Department has jurisdiction over twenty-two counties, including Albany; and the Fourth Department hears appeals from twenty-two counties located in the Central and Western regions of New York.
Within the First and Second Departments, there are Appellate Terms through which up to five justices hear appeals and issue written determinations. For both of these Departments, their respective Appellate Terms consider appeals from the Civil and Criminal Courts of New York City.
Importantly, a decision reached by one department is not necessarily binding on the others. The trial courts, however, are bound by precedent set by the appellate department that exercises jurisdiction over them. To illustrate, the Supreme Court of New York County must follow precedent set by the First Department but need not follow Second Department precedent. Moreover, the Second Department, would not be bound by the decisions of another department, though decisions from other departments are considered persuasive authority. Precedent set by the New York Court of Appeals, the state’s highest appellate court, is binding on all departments.
II. Procedural Considerations
The first step to appeal an adverse determination is to file a notice of appeal with the clerk of the court which rendered the decision. CPLR 5515. This must be done within 30 days after the appealed from order or judgment is served upon the appellant. CPLR 5513. Since filing a notice of appeal does not bind a litigant to complete the appeal, it is often a good practice for parties to file a notice of appeal to preserve their rights even if the appeal may not perfected. The notice of appeal should be accompanied by an Informational Statement. 22 NYCRR 1250.3. In the Second Department, a notice of appeal must be accompanied by a Request for Appellate Division Intervention. 22 NYCRR 670.3.
The next step is perfection. An appeal is generally perfected at the time the appropriate appellate division receives the Record on Appeal, an original Appellant’s Brief, and five copies thereof as well as all exhibits, and proof of service on the other parties to the lawsuit. A filing fee of $315 is required to perfect a civil appeal. In the event that a party fails to perfect an appeal within six months from the date of the notice of appeal, such appeal is deemed abandoned and dismissed. 22 NYCRR 1250.10(c) mitigates this by permitting the “abandoning party” to file a motion seeking vacatur of the dismissal. However, if good cause exists for seeking an extension of time to perfect an appeal, it is better practice to file a motion seeking a time extension before the initial deadline.
The procedures for perfecting an appeal may vary from department to department. While the entire Appellate Division adheres to a specific set of rules codified in Part 1250 of the New York State Rules of Court, litigants must also adhere to the specific rules of the department hearing the appeal. Variations among departments frequently involve the form and content of the Record on Appeal, though the generally applicable requirements are set forth in CPLR 5526. Given the difficulty associated with perfecting an appeal, litigants may turn to an appellate printing service for help compiling the required documents.
III. Scope of Appellate Review
Appeals can be separated into two broad categories: final and interlocutory. Interlocutory appeals refer to appeals brought before final disposition of the lawsuit. Common examples of interlocutory appeals are appeals from the denial of a motion to dismiss or a motion for summary judgment. New York law is permissive with respect to interlocutory appeals, allowing a party to appeal as of right an interlocutory order that “involves some part of the merits” or “affects a substantial right.” CPLR 5701.
The scope of an appeal of a final judgment or order is governed by CPLR 5501. For those who wonder why lawyers love to exclaim “objection”, CPLR 5501(a)(4) provides the answer. Under this provision, “any remark made by the judge to which the appellant objected” is automatically brought up for review. As such, lawyers object at trial for the important reason of preserving the right to appeal the judge’s supposed error.
CPLR 5501(a)(1) is also significant because it expands the scope of final appeals to encompass “any non-final judgment or order which necessarily affects the final judgment.” To illustrate, the Fourth Department held recently that CPLR 5501(a)(1) applies to an order denying a criminal defendant’s application for leave to file a late demand for a jury trial. Bruan v. Cesareo, 2019 NY Slip Op 1962 (4th Dept. 2019). The dissenting justice in Braun construed CPLR 5501(a)(1) to encompass only orders that are appealable as of right. The majority, however, held that the statute does not contain such a limitation.
Despite the broad construction of CPLR 5501, the scope of an appeal is typically limited in practice. The Appellate Division confines its review to the narrow legal and factual issues that necessarily affected the outcome. See CPLR 5501(c). As such, appellants may not rely on new legal theories or proofs that were not submitted at the trial court level. Since appellate courts consider only the evidence contained within the Record on Appeal, it is critical for litigants to present all relevant evidence and legal theories at the trial court level. The failure to do so can sometimes be cured at the trial court level by filing a motion to renew pursuant to CPLR 2221, requesting that the trial court reconsider its prior decision based on a change of law or new evidence and “reasonable justification for the failure to present such facts on the prior motion”. Even if the motion is denied, it may allow the Appellate Division to consider the additional evidence as part of an expanded record.
IV. Interim Remedies
An appeal does not guarantee a speedy determination of one’s rights. In fact, the process can be lengthy given the elaborate procedural requirements that litigants must adhere to. In cases where delay would cause prejudice, interim remedies may be available. Preliminary injunctions, for example, may be granted to prevent “an act in violation of the plaintiff’s rights respecting the subject of the action.” CPLR 6301.
Stays, in contrast, prohibit the enforcement of the judgment rather than precluding specific acts. The general rule is that orders or judgments from the trial court remain fully enforceable during the appeal. CPLR 5519 grants discretion to trial courts and the Appellate Division to stay enforcement of an order upon a motion. A party seeking a stay pursuant to CPLR 5519(c) must demonstrate: 1) a likelihood of success on the merits; 2) irreparable harm in the absence of injunctive relief; and 3) a balancing of the equities in their favor.
V. Conclusion
The Appellate Division is a unique feature of New York’s court structure. While New York is a permissive state with respect to what judicial decisions can be appealed, litigants must proceed with caution as they seek to comply with State’s complex procedural requirements. An appeal is most likely to be successful where an adequate record was created before the trial court, but the trial court failed to correctly apply the law or to anticipate how the Appellate Division would extend the law to a novel factual situation.
About Author
Garrett Cusack graduated from the University of Maryland School of Law in 2019, where he served as an Editor of the Journal of Business & Technology Law. Read more.
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