Perfecting the Appeal – Part 2 of 3

The Record on Appeal

By J. Douglas Barics
Revised September 2019

Every appeal requires a record to be submitted in conjunction with the appellate brief. The record is a reproduction of the exact same documents and evidence used by the lower court in reaching it decision.

There are four types of records which may be used.

• Full Reproduced Record is authorized under CPLR 5526.
• The Appendix Method as set forth in CPLR 5528(a)(5)
• The Agreed Statement in Lieu of Record under CPLR 5527
• The Original Record, for cases and departments set forth in 22 NYCRR 1250.5(e).

1. Reproduced Full Record

The reproduced full record is the entire record used by the trial court. All exhibits must be included and if a review of a non final order is part of the appeal, all papers that gave rise to the interlocutory order must be included as well. The requirements for the Full Reproduced Record is found in CPLR 5526, which requires the following material to be included:

• The notice of appeal
• The judgment-roll
• The corrected transcript of the proceedings,
• Any relevant exhibits
• Any other reviewable order
• And any opinions in the case

When the cause is an interlocutory appeal, the following material is required:

• The notice of appeal
• The judgment or order appealed from
• The transcript, if any
• The papers and other exhibits upon which the judgment or order was founded
• Any opinions in the case.

The contents of the record is expanded in 22 NYCRR 1250.7(b).

a. A cover

The cover must contain the title of the cause in the the upper portion.

In the lower portion, it must contain the names, addresses, telephone numbers and email addresses of the attorneys, the county clerk's index number, the appellate division docket number

b. The statement pursuant to CPLR 5531

A CPLR 5531 statement must state the following:

• The index number of the case
• The full names of the parties
• The name of the court and county where the case was commenced
• The date the action was commenced, and the date of service
• The nature of the underlying action
• The name of the judge who issued the order or judgment being appealed, which side prevailed in the order, the date of the order, and what the order or judgment awarded
• The method of appeal (i.e. full record reproduced, appendix, or original record)

c. A table of contents

The table of contents must include and be formatted as follows:

1. The settled transcript of testimony for each witness, notating at the top of the page each witness' name, the direct, cross, redirect and re-cross.
2. Exhibits, which shall identify the nature or contents  and where it was admitted into evidence.

d. The notice of appeal

The notice of appeal or the order giving permission to appeal is required to prove that appellate jurisdiction was timely established and to show which order or judgment is being appealed.

e. The judgment or order appealed from

f. Judgment roll

The judgment roll consists of:

• The summons
• The pleadings
• Admissions
• Every order or judgment which affects the merits or the final judgment
• If a default judgment was issued, proof of compliance with CPLR 3215
• The verdict or decision following any trial
• Any tender or offer made pursuant to rules 3219, 3220 or 3221 and transcript of proceedings on file.
• If a prior appeal was was taken, the decision of the prior appeal and the papers on which the appeal was heard
• In an action to recover a chattel, the sheriff's return.

g. Corrected transcript or statement in lieu thereof

h. Exhibits

i. Any opinion or decision in the cause

j. An affirmation, certification, stipulation or order, settling the transcript pursuant to CPLR 5525

k. A stipulation or order dispensing with reproducing exhibits

l. The certification, of the record pursuant to 22 NYCRR 1250.7(g)

When the full record is being used, the parties may stipulate to dispense with some exhibits if they are not relevant or necessary to the appeal provided they are not cited in the briefs. In addition, if the exhibits are bulky or dangerous, they may be omitted provided they are ready to be delivered to the court if requested.

 

2. The Appendix Method

The appendix is a portion of the record put together by the appealing party which will allow proper review from all issues and arguments made by both sides. It is incumbent on the side taking the appeal to include any and all documents which the responding side will reasonably use.

Under 22 NYCRR 1250.7(d), the appendix must include the following:

a. The Cover

b. The Statement Pursuant to CPLR 5531

For the appendix method, a CPLR 5531 statement is also required and it must state the following:

• The index number of the case
• The full names of the parties
• The name of the court and county where the case was commenced
• The date the action was commenced, and the date of service
• The nature of the underlying action
• The name of the judge who issued the order or judgment being appealed, which side prevailed in the order, the date of the order, and what the order or judgment awarded
• The method of appeal (i.e. full record reproduced, appendix, or original record)

c. Table of Contents

d. The Notice of Appeal

e. The judgment or order being appealed

f. The decision giving rise to the judgment, and the report of a referee if any

g. The pleadings

The pleadings consist of:

• The complaint
• The answer
• The reply to any counter claims in the answer

h. Material excerpts from transcripts of testimony or from documents in connection with a motion

These excerpts must include all testimony upon which the appellant relies and upon which it may be reasonably assumed the respondent will rely. These excerpts cannot be misleading or incomplete, and must include the surrounding context.

i. Relevant exhibits

j. The certification of the record pursuant to 22 NYCRR 1250.7(g)

 

3. The Agreed Statement in Lieu of Record

Under CPLR 5527, an agreed upon statement of facts may be used instead of a record. This provision is rarely if ever used.

 

4. The Original Record

When authorized by statute, an appeal may be prosecuted by using the original record. When the original record is used, no record is reproduced. Instead, the original file is sent to the Appellate Division.

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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 "Perfecting the Appeal - The Record on Appeal" is provided as a free educational service and does not constitute legal advice.  For more information see the full disclaimer.