Supreme Court of the State of New York
APPELLATE DIVISION
Fourth Judicial Department


FREQUENTLY ASKED QUESTIONS

TAKING AND PERFECTING AN APPEAL

I want to appeal a matter to the Appellate Division; where should I file my notice of appeal?

What are the time limitations for perfecting an appeal?

Is my filing considered timely if it is mailed on its due date but received by the Appellate Division after the due date?

By what procedure does the Court receive papers when a matter is transferred to the Appellate Division by Supreme Court?

What is the fee for filing an appeal?

Can the Clerk's Office settle a dispute I am having with opposing counsel as to what documents should be included in the stipulated record on appeal?

May the record on appeal contain transcripts where four pages of text appear on one page?

The printer inadvertently omitted a page in my brief; can I just mail that page in or file replacement briefs?

The brief I filed with the Court contains numerous misspelled words; can I just send in replacement briefs correcting the errors?

Can I use staples to bind my briefs?

When is my reply brief due?


SCHEDULING OF APPEAL AND ORAL ARGUMENT



I am unavailable to attend oral argument on certain dates during the term; what should I do?

My case has been scheduled for oral argument but I am unavailable on that day; what should I do?

I know the Court calls its calendar at 10:00 A.M., but can you estimate what time my case will actually be called so I don't have to wait too long?

May I contact the Clerk’s Office in advance of my argument date and request the names of the Justices that will hear my appeal?

I requested 15 minutes for oral argument; can I reserve five minutes of that time for rebuttal?

Even though I indicated on my brief that I was not requesting oral argument, I have changed my mind and now want time to argue my appeal. What should I do?

At oral argument, I cited to the Court a recent case that was not referred to in my brief. May I submit to the Court a copy of the case after oral argument?




TAKING AND PERFECTING AN APPEAL




I want to appeal a matter to the Appellate Division; where should I file my notice of appeal?

The notice of appeal should be filed with the clerk of the court where the action was commenced (see CPLR 5515 [1]). The County Clerk is the clerk of Supreme and County Courts. A notice of appeal from a Family Court or Surrogate’s Court matter should be filed with the clerk of that court.



What are the time limitations for perfecting an appeal?

Civil appeals that must be perfected within six months of the date service of the notice of appeal (see 22 NYCRR 1250.9[a]).

Family Court appeals in which the Court has assigned counsel must be perfected within 60 days of receipt of the transcript (see Family Ct Act § 1121 [7]).

Criminal appeals in which the Court has assigned counsel must be perfected within 120 days of receipt of the transcript (see 22 NYCRR 1021.1 [a] [3]).

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Is my filing considered timely if it is mailed on its due date but received by the Appellate Division after the due date?

No. In order to be considered timely, a filing must be physically received at the Appellate Division on or before the date it is due.



By what procedure does the Court receive papers when a matter is transferred to the Appellate Division by Supreme Court?

When a transfer order has been granted, that order together with all the underlying papers, including pleadings, must be filed with the County Clerk, which will thereafter transmit the papers to the Appellate Division. Assuming that all the necessary papers have been filed and transferred, the parties need not submit additional papers other than briefs as required by 22 NYCRR 1000.12.



What is the fee for filing an appeal?

The filing fee is $315, payable by attorney check, certified check or money order made payable to the Appellate Division, Fourth Department. There is no filing fee for criminal appeals or appeals in which the appellant has been granted permission to proceed as a poor person.



Can the Clerk's Office settle a dispute I am having with opposing counsel as to what documents should be included in the stipulated or certified record on appeal?

No. The parties themselves must work out any disagreement as to what documents should be included in the stipulated or certified record on appeal. If an agreement cannot be reached, a motion should be made to the trial court to settle the record (see 22 NYCRR 1000.7 [b]).

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May the record on appeal contain transcripts where four pages of text appear on one page?

No, unless submitted in text form to the trial court (see 22 NYCRR 1250.7 [e]).



The printer inadvertently omitted a page in my brief; can I just mail that page in or file replacement briefs?

No. Once a brief is filed with this Court, a party must make a motion to add to, or amend, the brief.



The brief I filed with the Court contains numerous misspelled words; can I just send in replacement briefs correcting the errors?

Yes. Replacement briefs merely correcting typographical errors will be accepted, provided that the corrections are de minimis and are accompanied by proof of service on opposing counsel. Substantive changes to a brief must be made on motion.

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Can I use staples to bind my briefs?

Yes.



When is my reply brief due?

A reply brief is due within 10 days of service (not receipt) of the respondent's brief. If the respondent's brief is served by mail, five days are added to the prescribed period (see CPLR 2103 [b] [2]). If the respondent's brief is served by overnight delivery, one day is added to the prescribed period (see CPLR 2103 [b] [6]).

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SCHEDULING OF APPEAL AND ORAL ARGUMENT



I am unavailable to attend oral argument on certain dates during the term; what should I do?

You should notify the Clerk in writing within 15 days of the date that the scheduling order was mailed of your unavailability for oral argument on a specific date or dates during the term (see 22 NYCRR 1000.15 [b]). If a scheduling conflict arises at a later time, but before a specific date for oral argument has been set, the Clerk should be notified in writing as soon as possible.



My case has been scheduled for oral argument but I am unavailable on that day; what should I do?

Once a specific date has been given for oral argument, any request to move that argument date must be made on motion. If an emergency arises that renders motion practice impracticable, the Court may consider a request submitted in letter form.

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I know the Court calls its calender at 10:00 A.M., but can you estimate what time my case will actually be called so I don't have to wait too long?

No. The Clerk's Office will not estimate the time that a particular case will be called for argument. An attorney scheduled to argue shall check in with the receptionist in the Clerk's Office prior to 10:00 A.M. If counsel is not present in the courtroom when his or her case is called, the matter is deemed submitted (see 22 NYCRR 1250.15 [c][4]).



May I contact the Clerk’s Office in advance of my argument date and request the names of the Justices that will hear my appeal?

No. The names of the Justices on the panel will not be released until the morning of oral argument.

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I requested 15 minutes for oral argument; can I reserve five minutes of that time for rebuttal?

No. Rebuttal is not permitted and no time may be reserved by counsel for the purpose of rebuttal (see 22 NYCRR 1000.15 [d][3]).



Even though I indicated on my brief that I was not requesting oral argument, I have changed my mind and now want time to argue my appeal. What should I do?

Send a written request to the Clerk, copying in opposing counsel.



At oral argument, I cited to the Court a recent case that was not referred to in my brief. May I submit to the Court a copy of the case after oral argument?

Yes. Post-argument submissions may be made within 5 business days of oral argument. The Court requires six copies and proof of service of one copy on the opposing party (see 22 NYCRR 1250.15 [d]; 1000.15[e]).


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May 24, 2010