This information explains how to appeal if you have lost your civil case in the Civil Court of New York City, a district court, a city court or a justice court in Putnam, Dutchess, Orange, Nassau, Suffolk, Rockland, and Westchester counties, including housing court and small claims court. This information does not cover appeals from summary eviction cases heard in a justice or city court outside the City of New York. Those appeals go to the county court. 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.
Appeals to Term Civil Cases
Defining an Appeal
In the event that you believe that the trial court made an error in your case, you may appeal the court’s judgment or order to a higher court called “the Appellate Term.” The party requesting the appeal is known as “the appellant” and the opposing party is known as “the respondent.” An appeal is not a new trial. No witnesses will be heard by, as well as no new evidence or facts will be presented to, the Appellate Term. The appeal is based on the “record” that was made during the trial court, which is comprised of all the proceedings and documents that were filed.
The Appellate Term will decide whether the trial court made any error that requires additional action. The Appellate Term can order that a new trial be held, that the case be dismissed, or that the terms of the order or judgment be modified.
Motions for a Stay
Bear in mind that the order or judgment that you are seeking to reverse or modify remains in effect while your appeal is being considered unless you obtain a “stay” from the trial court or the Appellate Term. A stay is simply a direction that the terms of the order or judgment should not go into effect until after the appeal is decided. To get a stay, you must show the court why the appeal will be successful. In some cases, such as when an appellant is ordered to pay money to the other party by the trial court, the Appellate Term will order that the appellant post money with the Appellate Term to make sure that if the appellant loses, the respondent will be able to collect the money he or she is owed.
Due to the large number of landlord/tenant eviction appeals heard by the Appellate Terms, the Appellate Terms in both Departments have developed a method for granting stays of lower court judgments and orders on very short notice. A motion may be brought by an order to
show cause by which the moving party may obtain an immediate but temporary stay of the lower court’s order or judgment pending determination by the Appellate Term of a motion for stay pending the hearing and determination of the appeal.
A party seeking an immediate stay is required to prepare motion papers (i.e. an affidavit or affirmation, a copy of the notice of appeal, a copy of lower court’s order, and a receipt for the fee paid in filing the notice of appeal) for a stay pending appeal and bring them to the clerk’s office. After reviewing the papers, the clerk will stamp, on a sheet of paper, a blank brief form of order for a stay pending determination of the motion. The blank order is then immediately submitted to a justice of the Appellate Term who will fill in the return date for the motion, and may sign the order granting an immediate interim stay. Since the court will set a short return date, the appellant is generally required to serve a copy of all papers on the respondent by the end of the same business day. The appellant then returns to the clerk and submits an affidavit of personal service.
Determining the Appellate Term that Will Hear Your Case
The Appellate Term for the First Judicial Department handles appeals from civil cases in the Bronx and Manhattan. The Appellate Term for the Second Department has 2 parts: the Appellate Term for the 2nd, 11th, and 13th Judicial Districts hears appeals from Queens, Brooklyn, and Staten Island civil trial courts and the Appellate Term for the 9th and 10th Judicial Districts hears civil appeals from trial courts in Nassau, Dutchess, Putnam, Orange, Rockland, Westchester, and Suffolk counties. Each Appellate Term has different rules of practice, so it is important to check with the particular court you are appealing to.
Initiating the Appeal Process
While all judgments can be appealed, not all orders can be, and you should consult with a lawyer or the clerk of the trial court or Appellate Term to determine whether the order you want to appeal can be appealed. To start the appeal process, the appellant is required to file a piece of paper called a “notice of appeal” in the trial court, pay any required filing fees, and send it to the opposing party. The notice of appeal is a document that notifies the other party that you wish to have an order or judgment reviewed by the Appellate Term. This notice identifies
all of the parties involved in the case and sets forth the nature of the appeal. An appeal cannot be pursued without this filing, which must be served on the opposing party.
Time Limits for Pursuing an Appeal
The timing for when you need to file the notice of appeal depends on how you were served with the judgment or order. In the event that you were served in person, you must file the notice of appeal within 30 days after you were served. In the event that you were served by regular mail, you have 35 days from the date the order or judgment was mailed to you (not from the date you received it). In the event that your case will be heard by the Appellate Term, Second Department, and you were served by overnight delivery, you will have 31 days from the date it was sent. With the exception of when the case is a commercial case or was in small claims court, you have 30 days from the day you were actually served (however you got it) to file the notice of appeal.
In the event that you do not file the notice of appeal on time, your appeal will be dismissed.
But if you were represented by an attorney, and the attorney dies, is disabled, or is suspended from the practice of law before the time to file the notice of appeal runs out, you can file the notice
of appeal within 60 days from the date of the death, disability or suspension.
The Cost of an Appeal
Pursuing an appeal can be expensive. In addition to the filing fee, there can be additional expenses, including attorney’s fees and the costs of transcribing, reproducing, and filing a record of the trial court proceedings. If you think you cannot afford these costs, you might be able to obtain poor person status. When this is granted, many of the costs and fees will be waived or paid by the government. To apply for poor person status, you are required to sign a sworn statement that has complete information about your assets and income to show that you are unable to pay the necessary expenses and sufficient information to show the appeal has merit.
The Process for after a Notice of Appeal is Filed
The Transcript and Record
After you have filed your notice of appeal, the next step is to order the transcripts of the trial court proceedings, if there was a court reporter in the trial court. If not, the clerk of the trial court is responsible for preparing the “minutes,” defined as “a statement sufficiently descriptive of the testimony to make possible appellate review.” This is typically not necessary since most courts have court reporters. The transcript is then supplied to the trial court clerk for inclusion in the Clerk’s Return. The clerk of the trial court has the responsibility of sending the Clerk’s Return to the Appellate Term. It includes the order or judgment appealed from, the opinion of the trial court (if any), the pleadings and other relevant papers, the transcripts (if any), and the exhibits (if any).
The Appellate Term, First Department requires the appellant to prepare a record (except in the event that the appeal is from small claims court) that is included in with the Clerk’s Return. The exact contents that comprise the record is listed in the rules of the Appellate Term, First
Department. The Appellate Term, Second Department does not require a record but uses the
papers sent to it by the trial court.
Appellant’s and Respondent’s Briefs
The appellant is required to file with the Appellate Term, and serve upon the respondent, a brief, which is a document that tells the story of the case and also presents the arguments as to why the Appellate Term should decide in appellant’s favor. The brief should also tell the Appellate Term what you desire it to do, such as reverse the judgment or modify the order. Since researching and writing the appellate brief can take a lot of time, it is often the most costly part of an appeal if you are hiring a lawyer to do it.
Once the appellant files a brief with the courtand serves it on the respondent, the respondent then has the opportunity to file a brief arguing that the appellant is wrong and the trial court’s order or judgment should be affirmed. The appellant can then file a reply to what respondent said. There are strict time limits for the filing and service of appellant’s brief. In the First Department, appellant’s brief is required to be filed and served on the respondent within 60 days after the trial court files the Clerk’s Return. The Appellant is required to file a Notice of Argument with the brief, noticing the appeal for a particular “term” of the court; there are 10 terms each spanning a month. The appeal will be placed on the term whose first day is at least 53 days after the date the appeal is filed.
The respondent’s brief is required to be filed no later than 31 days before the first day of the term and appellant’s reply brief is required to be filed no later than 24 days before the first day of the term. In the Second Department, the appellant’s brief is required to be filed and served within 90 days after the Clerk’s Return has been delivered to the Appellate Term. The respondent’s brief is required to be served and filed within 21 days after service of appellant’s brief. The appellant then has 7 days to file a reply to what respondent said. These time limits can be extended at the discretion of the Appellate Term. Each Appellate Term has specific rules for how long the briefs can be, how many copies must be filed and how many served, and what information must be included in a brief.
Oral argument is an opportunity to stand before a panel of 2 or 3 Appellate Term judges and attempt to focus their attention on the strongest elements of the appeal. The parties can respond to questions from the judges, clear up any confusion that may be in the minds of a judge or alleviate a judge’s concern. In the First Department, when either the appellant or the respondent requests, the Appellate Term will schedule the appeal for oral argument. In the Second Department, when a party’s brief fails to request oral argument, the appeal may be deemed submitted without oral argument by the defaulting party.
The Appeal Decision Process
Based on a review of the briefs and record as well as what was discussed during the oral argument, the Appellate Term will issue a written “order and decision.” The order and decision will state whether the trial court committed any errors requiring correction and, if so, how the errors will be corrected. The Appellate Term can order additional proceedings before the trial court, or direct the trial court to modify the judgment or order from which the appeal was taken. In the event that there are no errors that need to be corrected, the Appellate Term will simply affirm the judgment or order.
Other Remedies Available after the Appeal
In the event that the appellant or the respondent is dissatisfied with the Appellate Term’s decision and order, that party may be able to ask a higher court called the Appellate Division to review what the Appellate Term carried out. The party seeking relief in the Appellate Division may first make a motion to the Appellate Term or move directly in the Appellate Division.
Any motion must be made within 30 days of service of the Appellate Term order on the party asking for leave to appeal to the Appellate Division. If the Appellate Term denies the motion, the party seeking further appeal may then make a motion directly to the Appellate Division for leave to appeal to that court. The motion must be made within 30 days of the date of the Appellate Term decision that denied the motion.
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An appeal can be an effective way for correcting trial court errors. Taking an appeal can also be a complex, time-consuming, and expensive process. This information is just a general outline of the processes involved and does not cover all the rules in each Appellate Term. If at all possible, you should consult with an attorney. You will also be able to get help from the Appellate Term Clerk’s
Appellate Term, First Department
60 Centre Street
New York, New York 10007
Appellate Term, Second Department
141 Livingston Street, 15th Floor
Brooklyn, New York 11201
Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.
We are available to meet in Manhattan and Syracuse, New York. If you would like to meet outside of these areas, please contact us and we can arrange for a meeting place to discuss your matter.
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