Articles: Appeals and Appellate Litigation

The Basics of Appeals in the New York Appellate Division:
Understanding Appellate Procedure

By J. Douglas Barics
Revised October 2019

1. Appellate Division Procedure - The Basics

Appeals to the Appellate Division are governed by Articles 55 and 57 of the CPLR. As of September 2018, the Statewide Rules of Appellate Procedure covers the bulk of appellate practice, and is found in 22 NYCRR 1250. In addition, each of the four departments of the appellate division have their own rules which supplement or amend rule 1250, and are found in 22 NYCRR Parts 600, 670, 850 and 1000. These rules were significantly revised when rule 1250 became effective.

An appeal is a judicial peer review of a trial court's judgment by a panel of judges who have the authority to correct errors made by the court.

The procedure for getting into the Appellate Division will depend which trial level court issued the judgment or order. Appeals from the Supreme Court and County Court are governed by CPLR 5701. For all other courts of original jurisdiction, CPLR 5702 applies, which in turn, simply states that the statute governing that court will control.

There is no appeal from an ex parte order, but they may be reviewed by an Appellate Justice under CPLR 5704.

With some limited exceptions, the primary role of an appellate court is to review lower court orders. The appellate court will review the same papers, which are contained in the record on appeal, as well as any transcripts. The appellant will submit a brief, which is the argument, which must reference the record. The appellate court will determine if the trial level judge made mistakes in deciding disputed facts, or if the law was misapplied. Since an appeal is limited to reviewing and possibly correcting errors made by the trial court, no new evidence can be presented in an appeal. This is fundamental aspect of appeals, and consistent with the role of an appellate court; reviewing errors made by the trial court. New evidence would make it impossible to determine if the trial court committed errors, since the trial court did not have the new evidence being considered. In its role as a reviewing court, all appellate courts are mandated to use the exact same information available to the lower court.

If new evidence is present, it need not be lost, but it must be presented to the court in accordance with the rules of procedure. New evidence must first be presented to the trial court by an appropriate means (i.e. a motion to renew or a post trial motion). If the court accepts the new evidence and issues a determination based on it, that new ruling may be appealed, and any appeal from that disposition will include the new evidence as part of the record.

The road to any appellate review always begins with the trial court, which must issue an appealable order. The party who is aggrieved by that order must take the appeal and establish appellate court jurisdiction. Then and only then does the appeal begin in earnest.

2. An Appeal Must be Taken from an Appealable Paper

An appeal must be taken from some sort of appealable paper made by the lower pursuant to CPLR 5512. Oral mandates are not appealable, nor is every written paper issued by the court appealable. For those that are, there are two types, those orders which are appealable as of right, and those which need leave of the court. When the order is appealable as of right, the appeal is taken by the filing of a notice of appeal. But when no appeal as of right exists, then taking the appeal requires an order granting.

The issue as to whether a paper is appealable or not can be raised in a motion to dismiss the appeal before the appeal is perfected, by a motion by the appellant to cure the defect, or as part of the respondent's opposing brief. An appeal from a non appealable paper can be dismissed, cured by the appealing party, or the court itself can cure the defects. See CPLR 5520.

Read More: The Appealable Paper

3. The Aggrieved Party

Once an appealable paper exists, only a side who has been harmed in some way has the right to take an appeal. That party must be found to be the aggrieved party as set forth in CPLR 5511 and further defined in subsequent case law, most notably the Court of Appeals case of Parochial Bus v. Board of Education 60 N.Y.2d 539 (1983), and the Second Department case of Mixon v. TBV 76 A.D.3d 144 (2010).

Being aggrieved is currently defined as having the court deny a request sought by the party, or granting a request against a party. But simply disagreeing with the process or reasons set out by the court in reaching its decision is not sufficient to make a party aggrieved, and an appeal seeking to change the court's rational alone will be dismissed for lack of aggrievement under CPLR 5511.

Much like the issue of appealable papers, the issue as to whether or not the party taking the appeal is "aggrieved" can be disputed. Unlike the cures available to appealing from the wrong paper, a successful challenge to the aggrieved status will result in the appeal being dismissed.

Read More: The Aggrieved Party

4. Obtaining Appellate Court Jurisdiction: Taking the Appeal

The right to appeal must be preserved by the filing of a notice of appeal pursuant to CPLR 5515, or by the filing of a motion seeking leave to appeal under CPLR 5516. This is one of the few deadlines that cannot be extended except for limited and extreme circumstances. The deadline to the filing of the notice of appeal or motion for leave is short, normally thirty days from the service of the notice of entry.

The timely filing of a notice of appeal is what gives the appellate court jurisdiction, and missing a deadline for taking the appeal deprives the appellate court jurisdiction to hear an appeal.

For all practical purposes it is impossible to cure a jurisdictional defect in taking the appeal.

Read More: Taking the Appeal

5. Only the party who has taken an appeal may be granted relief

Taking an appeal gives the appellate court jurisdiction to grant relief to the appealing party only. The appellate court cannot grant relief to a non appealing party, unless it is part of the relief being granted to the appealing party. See Hecht v. City of New York 60 N.Y.2d 57 (1983)

6. Perfecting the Appeal

Taking the appeal is simply the starting point. Completing the appeal is known as perfecting the appeal, which simply means the brief, record and any transcripts are prepared in accordance with the CPLR and the appropriate part of 22 NYCRR, and then submitted to the Appellate Division in a timely fashion. In the past, each of the four departments had specific rules governing appeals. In September 2018, the Statewide Rules for the Appellate Divisions became effective, making appellate practice far more consistent across New York State. Each department maintained their own local rules, but these were much shorter than the pre Statewide Rules. Each Department now uses 22 NYCRR 1250 for the majority of the procedural rules. When Part 1250 became effective, each Department significantly reduced the size of their local rules, but each Department still maintains a much shorter version of their own rules, The First Department uses 22 NYCRR Part 600. The Second Department uses 22 NYCRR Part 670. The Third Department uses 22 NYCRR Part 850, and the Fourth Department uses 22 NYCRR Part 1000.

The record consists of the evidence used by the trial court, as well as the transcripts of the court proceedings. Trial transcripts must be corrected for any errors pursuant to CPLR 5525 by a means known as settling the transcripts. Failure to do so can result in the appeal being dismissed.

The brief is the written argument that sets forth various procedural requirements, the issues presented, a summary of the facts, and the specific arguments as to why the lower court should be reversed. The specific format of the brief is specified in Rule 1250, with each department having their own additional rules found in 22 NYCRR 600, 670, 850 or 1000.

Once the appeal is perfected, the non appealing party, called the respondent, may submit their own brief. The appellant has the right to submit a reply brief if they so choose.

7. Oral Argument

Oral argument is the final phase of an appeal before the appeal is decided. At oral argument, each side may present a concise statement of their position. During this argument, the Appellate Justices may ask various questions. In reality, the questions often become the entire oral argument, with Justices asking questions to each side to help clarify any issues or questions they may have.

8. Motion Practice in the Appellate Division

Motion practice in the Appellate Division is fairly common. Common motions are motions seeking permission to appeal under CPLR 5515, obtaining enlargements of time to perfect an appeal, combining related appeals, and to correct or amend records, staying the enforcement of orders under CPLR 5519, or curing defects made in taking the appeal under CPLR 5520.

Motion practice in governed by 22 NYCRR 1250.4, which applies to all four Departments. Each of the Four Departments may vary from Rule 1250 within their local rules.

9. The Appellate Decision

The Appellate Division will decide the appeal by a written decision and order pursuant to CPLR 5522 and CPLR 5712. The decision will fall into the following categories.

The Court may affirm the lower court's judgment, and it remains as is with no changes.
It may reverse the entire judgment, resulting in the aggrieved party now winning the case.
It may modify the judgment, by keeping most of the terms but making adjustments to it.
It may remit the matter back to the lower court for further proceedings in accordance with specific instructions set forth in the decision.
The Court may dismiss the appeal. A dismissal is often based on procedural errors in the appeal, meaning the Appellate Division did not consider the merits of the case.

About J. Douglas Barics
J. Douglas Barics is an appeals attorney located in Commack NY who regularly represents individuals in appeals.

For Additional Information
If you have any questions about this article, please contact J. Douglas Barics

Disclaimer: The article "The Basics of Appeals in New York's Appellate Division" is provided as a free educational service and does not constitute legal advice. For more information see the full disclaimer.

The Basics of Appeals in the New York Appellate Division: Understanding Appellate Procedure