Elmira City Court

Civil Court

Appealing a Small Claims / Commercial Claim / Summary Proceeding (Eviction) / Civil Court Decision
(sec. 1704 and 1911 UCCA; sec. 5515 CPLR, sec. 210.38 Uniform Rules)

If either party to a small claim/commercial claim/summary proceeding/civil action dispute believes that a City Court decision is legally incorrect, he/she may ask to have that determination reviewed by a judge of the County Court. You should read the following in it's entirety before proceeding with an appeal. However, before deciding to appeal the decision, there are certain matters which you should understand and consider before proceeding on an appeal.

County Court has no authority to rehear your case, to retry your case, or to consider any facts other than those presented at the hearing. A Judge of the County Court is permitted only to review how the Judge in the City Court decided the matter; that is, whether the Judge in the City Court correctly applied the law and whether, by his/her decision, "substantial justice" (not complete justice or perfect justice) was done between the parties. This very limited scope of review results in a reversal or modification of only those judgments that clearly deviate from the substantive law, not those on which another court might simply have gone the other way.

County Court cannot review any evidence that was not presented to the local court nor, except in a very rare case, will the County Court interfere with the credibility assessments made by the City Court.

Taking an appeal will involve additional expense including, but not limited to, a filing fee of $30.00 with the City Court at the time you file your Notice of Appeal. Other expenses may include the cost of preparing the transcript of the trial or hearing and, if you choose the cost of hiring an attorney to represent you on the appeal.

You may be entitled to proceed as a poor person and have the costs of the filing fee waived or have the transcripts paid for by the county and/or for assignment of an attorney for the appeal.

To waive the fees for the above, you will need to file a poor person application with the County Court. You may obtain a poor person application by requesting a copy from the court clerk or by downloading from the court’s website located at https://www.nycourts.gov/legacyPDFs/courts/6jd/forms/SRForms/ifp_order.pdf. If poor person relief is granted by the County Court, you will need to supply the City Court with the Order from the County Court. You should file your Notice of Appeal (see #1 below) within thirty (30) days of your conviction before making application to the County Court. This will protect your right to continue with the appeal should your application for poor person status be denied.

Note: If you are represented by an attorney at the time of the decision, your attorney should, if so instructed, file the Notice of Appeal on your behalf. Be sure to advise your attorney at the time of the decision that you wish to appeal so that the Notice of Appeal may be filed within the proper time limits. 
 


If a default judgment was entered against you because you failed to appear for the City Court hearing, the judgment cannot be appealed.


You must make a motion in City Court to vacate the default. To make such a motion, an affidavit under oath must be prepared that states the reason why you failed to appear in Court on the scheduled date and clearly sets forth your defense to the claim. The accuracy of this affidavit must be sworn to before a Notary Public and then provided to the other party. An Affidavit of Service (blank copy attached) and filed with the Court to attest that the motion affidavit was served on the other party. If the motion is denied, that denial can then be appealed.

 


Notice of Appeal


A Notice of Appeal is merely a written statement to the Court indicating your intention to proceed with an appeal. The filing of the Notice of Appeal with the City Court is the first step, but is not, by any means, the appeal itself. You will have an opportunity to provide the appellate court (the County Court) with your written arguments only after the transcript of the court proceedings have been prepared and the City Court has filed the Return on Appeal (the City Court file) with the appellate court. The specific procedures for proceeding with an appeal are listed below.

There are strict time limits for filing a Notice of Appeal and "perfecting" the appeal. Depending on the method of service of the Notice of Judgment on the parties you have either thirty (30) days or thirty-five (35) days from the date of entry of the judgment to file a Notice of Appeal with the City Court. In a Small Claims/Commercial Claims action, the earlier of the following starts the time to file a Notice of Appeal: 1) Thirty (30) days if the Court serves the Notice of Judgment on the parties in court or if one of the parties personally serves the Notice of Judgment on the other party(ies) or 2) Thirty-five (35)  days if the Court mails the Notice of Judgment to the parties or if one of the parties mails the Notice of Judgment by mail to the other party(ies). In other civil actions (not small claims/commercial claims), the time to file a Notice of Appeal with the City Court is generally thirty (30) days from the date of entry of the judgment Additionally, you will be bound by time limits to "perfect" your appeal with the appellate court.


Steps For Filing An Appeal


Should you wish to proceed with an appeal of the decision of the City Court, you must follow the following procedures:

1. Within thirty (30) days from the date of the decision, file two copies (original and copy) of a written Notice of Appeal with the City Court that heard and decided the case. The Notice should contain the caption of the case, the index number associated with that case, and a statement that you (as the "appellant") intend to appeal the decision. You must also include your address and the address of the opposing party. 

2. You must arrange to have a copy of the Notice of Appeal served on the opposing party and the other party’s attorney (if applicable) before filing the Notice of Appeal with the Court.  Following service of the Notice of Appeal, you must file a notarized Affidavit of Service with the Court showing how, when and to whom the Notice of Appeal was served, along with your Notice of Appeal.

  • Note that the Notice of Appeal cannot be served by a party to the action; service must be made by a non-party who is 18 years of age or older (CPLR 2103[a]). In the event the opposing party is represented by an attorney, the Notice of Appeal must be served upon the opposing party AND the attorney for the opposing party.

3. You will need to make a written request to the City Court for a transcript to be prepared to document in written form the court proceeding(s) of your case. This is transcribed from the electronic recording and sent directly to the transcription service of your choice. Your written request must contain the date(s) of the hearings/trial and the transcription service that you wish to use to prepare the transcript. To obtain a listing of the court-certified transcriptionists, you may request a copy from the court clerk or find on the court’s website at https://www.nycourts.gov/LegacyPDFS/howdoi/vendor-list.pdf. After you have selected a transcriptionist, the Court will then send the audio directly to them.

It is your responsibility to pay for the cost of the two (2) transcripts: one (1) which will be filed with the Court and one (1) for yourself. You should be aware that the Court will not provide you with a copy of the transcript(s). You must request a cost estimate of the transcript(s) before ordering the transcript(s). (Note: this is only an estimate, and the actual cost may be less or more than the estimate). The transcription service may require an advance deposit before starting the transcript and will require payment of the balance before releasing the transcript. (Note: If you have been granted poor person status by the County Court, you must file the Order of the County Court with the City Court to avoid the cost of the transcript.)

4. After the City Court has received the original transcript(s), you will need to “settle the minutes” and will receive a letter from the City Court in this regard. 

5. Once the minutes are settled, the City Court will file a "Return" (that is, the City Court file including the transcript) with the County Court. The City Court will notify the appellant that the "Return" has been filed with the County Court.

6. At this point, the matter is now to be considered by the County Court. If you wish to
file additional documentation with the County Court, you should contact the County Court Clerk's office on the procedure for submitting additional documents. Copies of any documents that you provide to the Court should always be provided to the prosecuting attorney.

7. If, after you have started an appeal, you change your mind and wish to discontinue or withdraw the appeal, you must notify the City Court and County Court, in writing, of the discontinuance. You should also notify the prosecuting attorney that you will not be proceeding with the appeal. Of course, you will also be responsible for any costs associated with the appeal including any portion of the transcript that has already been prepared.

8. After the appeal has been decided by the County Court, a copy of that Decision will be mailed to you at the most recent address on file with the County Court.
 

Note: You may visit the Law Library located in your county for legal references on the filing of a civil appeal. Court personnel cannot provide legal advice.