An appellant may elect to perfect his or her appeal by providing the appellate court with a full record on appeal, the contents of which are prescribed in CPLR 5526, or by using the "appendix method," pursuant to CPLR 5528(a)(5) and the Rules of the Court of Appeals and the Appellate Division.1 The "appendix system was adopted in New York after extensive study indicated the need to reduce the cost of printing records on appeal."2 It can result in considerable savings in printing costs. For example, when a defendant's appeal in a personal injury case presents only questions of law as to the sufficiency of defenses such as res judicata, statute of limitations or jurisdiction, the often voluminous factual and expert evidence as to damages can be omitted.
On an appeal from a final judgment, the record consists of the notice of appeal, the judgment-roll, which contains the summons, pleadings and each judgment or order involving the merits or necessarily affecting the final judgment (see CPLR 5017(b)), the corrected transcript of the proceedings if a trial or hearing was held, any relevant exhibits, any reviewable non-final judgment or order (see CPLR §5501(a)), and any opinions in the case.
The record on appeal from a non-final judgment or order consists of the notice of appeal, the judgment or order appealed from, the corrected transcript, if any, the papers and other exhibits upon which the judgment or order was based, and any opinions in the case.3 The CPLR provisions governing records on appeal have been supplemented by court rules which must be consulted.4
Preparing the Record
When the appeal is from an order or judgment in an action or special proceeding in which no stenographic transcript was made of the proceedings in the court below, as for example, an appeal from an order relating to the sufficiency of the pleadings or deciding a motion for summary judgment, the appellant has sole control (subject to the court rules5) of the time required to prepare the record or appendix and perfect the appeal. The appellant is not subject to delays occasioned by inaction on the part of the respondent, since all the appellant has to do is gather and compile copies of the filed papers which can then be certified under CPLR 2105 as constituting the record.
Preparation of the record or appendix is not always as easy where there is a stenographic transcript, since the entire transcript must be included as part of the record on appeal,6 unless the parties stipulate that only a portion of the transcript need be transcribed.7 The correctness of that transcript must be agreed upon by the parties within the time limits set forth in CPLR 5525(c) and the rules of the Appellate Division.
Two sources of potential trouble for the appellant are a respondent's counsel who is either too busy with new matters to review the transcript of a former trial or for some other reason is in no hurry to see the appeal perfected and noticed for argument, and the presence of multiple parties, each of whom must consent to the correctness of the transcript. In such cases, CPLR 5525(c), "Settlement of transcript," comes to the aid of the appellant.
CPLR 5525(c) provides that within 15 days after receiving the transcript from the court reporter, the appellant shall make any proposed amendments and serve them upon the respondent together with a copy of the transcript. Respondent then has 15 days to make any proposed amendments or objections to appellant's proposed amendments and serve them upon the appellant.
If the appellant has timely served respondent with proposed amendments, and no amendments or objections are timely proposed by the respondent, the transcript, certified as correct by the court reporter, together with appellant's proposed amendments, shall be deemed correct without the necessity of a stipulation by the parties certifying to its correctness or the settlement of the transcript by the judge or referee. The appellant must affix to the transcript an affirmation certifying compliance with the time limitation, service of the notice of settlement required by CPLR 5525(c)(3) and respondent's failure to propose amendments or objections within the time prescribed.
What if the respondent timely serves objections to appellant's proposed amendments or proposes still other amendments that appellant does not agree with? In such case, at any time on at least four days' notice to the adverse party, the transcript and the proposed amendments and objections thereto may be submitted for settlement to the judge or referee before whom the proceedings were had.8
It behooves the parties to try to resolve their differences because the statutory approach has built-in limitations. The judge or referee may not be available on the return date and adjournments often occur. In the Second Department, the settlement procedure may require a day-long journey to the distant reaches of Suffolk, Dutchess or Orange County. Rarely will the outcome of the appeal turn on a stenographer's error in recording a witness' answer and, when that may be the case, the error is usually one that is acknowledged by both sides. For the most part, typographical and other errors in the transcript are of little or no consequence and may be safely disregarded. Generally, they are not something the parties should do battle over.
Shorter but Sufficient
When the transcript is in order, what next? If the entire transcript is to be included in the record on appeal, there is no problem. Call one of the many experienced appellate printers and instruct it to proceed with preparation of the record. Frequently, however, the points to be raised on appeal do not require consideration of the entire transcript. For example, if the appeal challenges only the amount of damages, either as excessive or inadequate, there is no need to print all the evidence dealing with defendant's liability. Similarly, where a defendant's only point is that the verdict in favor of plaintiff on the issue of liability is against the weight of the evidence, or contrary to the evidence so that a motion for a directed verdict or judgment n.o.v. should have been granted, there is no need to reproduce extensive testimony as to plaintiff's injuries and damages.
CPLR 5528(a)(5) was enacted to take care of these and similar situations. It allows the appellant to include in the appendix "only such parts of the record on appeal as are necessary to consider the questions involved, including those parts the appellant reasonably assumes will be relied upon by the respondent." While the respondent's brief may include an appendix containing such additional parts of the record as are necessary to consider the questions involved on the appeal,9 this does not relieve the appellant of the primary burden of presenting the court with a proper appendix.10
When omitting from the appendix portions of a witness' trial testimony, be careful that the excerpts chosen to be included are not "misleading or unintelligble by reason of incompleteness or lack of surrounding context."11 "An appellate court should not be subjected to the task of untangling and mastering the facts from an inadequate and incoherent appendix… Otherwise, the appendix system, designed to be a convenience both to the court and the parties, becomes an incumbrance, multiplying the time necessary for the proper consideration and disposition of the appeal."12 The appellate courts have made clear that "abuse of the system is an imposition on the court and cannot be tolerated."13
The penalty for submitting an inadequate or insufficient appendix is not an automatic affirmance of the order or judgment as the Appellate Division, First Department, had held, before it was reversed by the Court of Appeals in E.P. Reynolds v. Nager Electric.14 In that case, appellant submitted a 13-page appendix, extracted from a trial transcript of more than 950 pages, that was patently insufficient to permit determination of the questions involved, especially the claim that the verdict was against the weight of the evidence. Such a meager record also made it impossible for the court to review the questions of law presented because the facts upon which the legal conclusions depended were not presented. Accordingly, the Appellate Division affirmed solely upon the ground that the appendix submitted by the appellant was insufficient to permit determination of the questions sought to be raised. The court did not consider any legal or factual issues.
While the Court of Appeals agreed with the Appellate Division that it is not required to determine an appeal with the aid of an appendix it considers inadequate, the Court of Appeals held that summary affirmance was not the way to deal with the situation. Rather, it stated that "[s]hould the natural caution of the advocate and the threat of cost sanctions fail to provide an adequate appendix, the court may direct the appellant to submit a further appendix or it may dismiss the appeal unless appellant files a further appendix within a specified period of time."15
The Court of Appeals believed "[h]arsher penalties might defeat the purpose of CPLR 5528 by encouraging the careful advocate to submit an unreasonably lengthy appendix in order to avoid the extreme consequence of a mistaken belief that only a lesser portion of the record needed to be printed."16 "In the final analysis, an unnecessarily extended appendix proves as burdensome as one which is too short."17
Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.
1. Rule 500.14(b),(c) and (d) (Court of Appeals); Rule 600.10(c) (First Department); Rule 670.10.2(c) (Second Department); 800.8(b) (Third Department); Rule 1000.4(d) (Fourth Department).
2. E.P. Reynolds v. Nager Electric, 17 N.Y.2d 51, 55, 268 N.Y.S.2d 15, 17 (1966).
3. CPLR 5526.
4. Rule 500.14(a) (Court of Appeals); Rule 600.10(b) (First Department); Rule 670.10.2 (Second Department); 800.5 (Third Department); Rule 1000.4(a) (Fourth Department).
5. See, Rule 600.11(a)(3) (First Department—nine months from the filing of the notice of appeal; Rule 670.8(e)(1) (Second Department—six months from filing notice of appeal); 800.9 (Third Department—nine months from the filing of the notice of appeal;); Rule 1000.12(b) (Fourth Department—nine months from the filing of the notice of appeal).
6. CPLR 5526.
7. CPLR 5525(b).
8. CPLR 5525(c).
9. CPLR 5528(b).
10. "The appellant under the appendix system has the duty of presenting the issues on appeal in a concise and clear manner." LoGerfo v. LoGerfo, 30 A.D.2d 156, 157-158, 290 N.Y.S.2d 1005, 1007 (2d Dept. 1968).
11. Rule 670.10.2(c)(1)(v) (Second Department).
12. LoGerfo v. LoGerfo, 30 A.D.2d 156, 157-158, 290 N.Y.S.2d 1005, 1007 (2d Dept. 1968).
13. E.P. Reynolds v. Nager Electric, 17 N.Y.2d 51, 55, 268 N.Y.S.2d 15, 17 (1966).
14. 17 N.Y.2d 51, 268 N.Y.S.2d 15 (1966).
15. Id., 17 N.Y.2d at 56, 268 N.Y.S.2d at 17-18.