This information, which is based on New York law, is intended to provide general information, not to give advice for individual circumstances. It is our aim to make the appellate process more understandable. It is not a substitute for an attorney’s advice or for your own careful study of the rules of the courts involved.
In the event that you believe errors were committed during court proceedings in your case, you might be entitled to an “appeal” in a higher court.
Defining an Appeal
In the event that you believe that any errors were committed by the court in the proceedings in your case, you might have the right to request that a higher court review the lower court’s determination. Not all lower court decisions are appealable. This review is called an appeal. The party requesting the appeal is referred to as the appellant. The opposing party referred to as the respondent.
The appellate review determines if the lower court committed any errors that would require further action, such as, a new trial, dismissal of the case, or a different decision. The appeal is not a new trial as no witnesses are heard in the appellate court and no new evidence or facts can be brought to the appellate court’s attention. The appeal is based on the “record” made during the proceedings that occurred in the lower court. Keep in mind that the order or judgment of the lower court remains in full force and effect while an appeal is being considered, unless it is “stayed” (suspended from operating during the appeal).
Initiating the Appeal Process
The appellate process is initiated when a party “takes” an appeal. Typically, taking an appeal means serving a notice of appeal on the opposing party, filing it, and paying the required filing fee (if applicable), or the issuance of an order granting leave to appeal.
The notice of appeal is a document that informs the other party that you wish to have an order or judgment reviewed in a particular appellate court. This notice identifies all parties involved in the case and establishes the nature of the appeal. Without this filing (or in certain cases a motion for permission to appeal and an order granting leave) an appeal cannot be pursued.
The rules of each appellate court might require the service and filing of additional papers with the notice of appeal. For some cases, you do not have an automatic right to appeal and are required to file a motion for permission to appeal instead of a notice of appeal.
In some cases, even if you take an appeal your case might still be resolved by settlement as some appellate courts have procedures to encourage this resolution. In the event that this type of procedure is available, a judicial administrative officer will determine if settlement would be possible after your notice of appeal has been filed and you would then be directed to appear at a conference to discuss that option.
Time Limits Related to an Appeal
In the event that you have decided to appeal an order or judgment, typically you are required to serve and file your notice of appeal or motion for permission to appeal within 30 days after service of a copy of such judgment or order with notice of entry. (When the receipt is by regular mail, you will have 35 days from the day the order or judgment was mailed to file your notice of appeal or motion for permission to appeal and serve a copy of the notice on the opposing party.) If you fail to comply with the 30 or 35-day service and filing requirement, your appeal will be dismissed. This time period is very strict and cannot be extended.
The Cost of an Appeal
Pursuing an appeal can be expensive. In addition to the filing fee, you might incur additional expenses, including attorney’s fees and the expenses associated with transcribing, reproducing, and filing a record of the proceedings. In the event that you believe you cannot afford to take an appeal, you might be able to obtain “poor person status”, which would waive many of the costs and fees. To apply for this status, you will need to sign a sworn statement showing your worth and sources of income and demonstrating that you are not able to pay the necessary expenses. You will also be required to show that your appeal has merit.
The Process after Filing an Appeal
Each appellate court has rules that establish deadlines for the next phase, which takes a minimum of several months. After the notice of appeal is filed, the party taking the appeal will begin to assemble the necessary materials to present an argument on appeal. This process of getting an appeal into a form so the facts of the case and the arguments for reversal can be presented to the appellate court is referred to as “perfecting the appeal”. This stage is extremely time-consuming and labor intensive. Consequently, it is commonly the most expensive part of the appeal.
In preparing for the appeal, you need to create a record of the proceedings in the lower court, which needs to be filed with the appellant’s brief within each appellate court's specified limits prescribed by the rules, along with a filing fee. A brief is a document that details the story of the case and presents the party’s arguments, which conclude that the appellate court should decide in that party’s favor. The opposing party receives a copy of your brief, and will generally file a brief in response to your brief which argues that the proceedings in the lower court were correct or that any error should not alter the outcome of the case, concluding that the appellate court should uphold the lower court’s ruling.
Once all briefs have been filed with the court, the next step in the appellate process will be either oral argument (an oral presentation before the appellate court) or submission of the case to the court without argument. Oral argument gives the parties with the chance to focus the court’s attention on the strongest elements of their cases and permits the parties to reply to questions that might not have been answered in their briefs.
The Appeal's Decision Process
Once the appellate court has reviewed the briefs and record and heard the oral argument (if applicable), it will then issue a written order and decision. The lower court determination will be either affirmed, reversed or modified. This decision will determine if there will be additional proceedings in your case after the appeal. These additional proceedings might include hearings, a complete trial, or other activities in the lower court to comply with the order of the appellate court.
Other Available Remedies after the Appeal
In the event that you are dissatisfied with the lower appellate court’s order, you might be able to seek further review in a higher appellate court. The Court of Appeals is the state of New York’s highest court. Except in rare instances, you might appeal to the Court of Appeals only when the permission of either the first appellate court that heard your case or the Court of Appeals is granted. This permission is granted in only a small portion cases.
While taking an appeal is a complex, time consuming, and expensive process, it can be an effective process for correcting errors. Your attorney is in the best position to advise you about the details of your appeal and how to proceed with it. The rules of the Court of Appeals, New York’s highest court, and each of the Appellate Divisions are available online or in the respective clerk’s offices. For more information, please visit http://www.nycourts.gov/courts.
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