Taking the Appeal:
How to Commence an Appeal in the Appellate Division under CPLR 5515
By J. Douglas Barics
Revised August 2019
1. Taking the Appeal
The act of taking the appeal is the filing of the necessary papers to start the appeal itself. The papers needed to take an appeal are deceptively simple, but a mistake or missed deadline at this stage can result in the appeal being dismissed.
2. How to Take an Appeal as of Right
When an appeal may be taken as of right under CPLR 5701(a), that section of the CPLR is silent on how to take it. The steps necessary are found in CPLR 5515. Taking the appeal consists of serving the other party with a notice of appeal and filing it in the court which issued the order being appealed. The notice of appeal must contain three provisions.
- It must designate the party taking the appeal
- It must identify the judgment or order being appealed
- It must identify the court to which the appeal is taken
These three elements are jurisdictional, and failure to meet them deprives the Appellate Division of jurisdiction.
In addition to CPLR 5515, 22 NYCRR 1250.3(a) also requires that the order or judgment be attached to the filing, as well as the informational statement. This form is used state wide and replaces the old pre-argument statement and RADI forms.
While CPLR 5515 appears to mandate service and filing in taking an appeal, CPLR 5520 allows either one to suffice in order to confer appellate jurisdiction, or to allow the late filing of the additional forms. Keep in mind that if the initial filing is not correct, it is the court's discretion whether to let the mistakes be fixed, provided the errors are not jurisdictional.
The notice of appeal and all additional papers must be served and filed within thirty days of the notice of entry. This is also jurisdictional, and failure to meet this deadline deprives the appellate court of jurisdiction.
The notice of appeal, plus additional copies are required, is filed in the court which issued the order being appealed. The filing fee is $65, except for Family Court, which has no fees for the filing of any papers.
Upon the filing of the notice of appeal, the appeal itself is deemed to be taken. The notice of appeal is sent to the appropriate Appellate Division, and the timeline to perfect the appeal begins.
3. How to Take an Appeal when the Appeal is by Permission
When an appeal may be taken by permission under CPLR 5701(c) (see also CPLR 5702), the appeal is taken by permission through obtaining order from the judge who issued the order, an appellate justice if the trial judge declined to grant permission, or directly to an appellate justice without seeking leave from the trial judge. Under CPLR 5515, the appeal is taken when the order granting leave to appeal is entered. CPLR 5516 imposes time restrictions on any motion seeking leave to appeal, it must be noticed no less than eight days and no more than fifteen days after the notice of motion is served.
Upon the taking of an appeal by permission, the timeline to perfect the appeal begins.
4. Errors in Taking the Appeal
If errors are made in taking the appeal, they will fall into two categories, jurisdictional errors and curable errors.
a. Jurisdictional Errors in Taking the Appeal
Jurisdictional errors are non curable, as these are errors in establishing jurisdiction of the appellate division. An untimely appeal is non curable, as is failure to have the notice of appeal containing all three requirements set forth in CPLR 5515(a).
b. Omissions in Taking the Appeal
Non jurisdictional errors and omissions need not be fatal to the appeal, as the Appellate Division has the authority to correct these mistakes made in taking the appeal under CPLR 5520. Corrections are discretionary, and even if the Appellate Division has the authority to cure a non jurisdictional defect, it may decide not to exercise its discretion and dismiss the appeal.
Read More: Curing omissions and errors made in taking the appeal
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 "Taking the Appeal - How to Commence an Appeal in the Appellate Division" is provided as a free educational service and does not constitute legal advice. For more information see the full disclaimer.