Should You Perfect Your Appeal Using the “Appendix Method”?

Should You Perfect Your Appeal Using the “Appendix Method”?

Should You Perfect Your Appeal Using the "Appendix Method”? by Eric Larke

{2:17 minutes to read} When perfecting an appeal in New York’s Appellate Division, attorneys typically have a couple of different options. They can perfect based on the full reproduced record, comprised of all the documents before the lower court specific to the order on appeal – whether they are relevant to the points made in the appellant’s brief or not. Another choice is to perfect based on what  is known as the “Appendix Method.” The appendix is a document reproduced and filed in lieu of a complete reproduced record. One might define an appendix as an abbreviated record. It contains those documents most likely to be relied upon by all parties to the appeal, but not every single document before the court relative to the order being appealed.

It seems to us that the appendix method isn’t utilized as often as it should be. Most firms still perfect their appeals on a full reproduced record, which is not always necessary.

The appendix method provides the appellant the opportunity to reproduce only the documents that properly serve as the scope of appellate review. Depending on the circumstances, this can be the better option. Some of the reasons to consider the appendix method:

  • If the overall size of the reproduced record is quite voluminous — there really is no point in reproducing documents that are superfluous to the court’s review.
  • If there is a cost consideration — the larger and more voluminous the amount of material, the greater the expense of reproduction and treatment.
  • If you are concerned about the record being complete — remember that you do need to certify the record pursuant to CPLR 2105 in the Appellate Division or by stipulation pursuant to CPLR 5532. Typically, if you proceed on the appendix method, a party cannot attack your appeal’s completeness because the appendix does not purport to be a complete record. Moreover, the rules of the court automatically provide the Respondent the opportunity to file a Respondent’s Appendix.

One downside to proceeding on the appendix method is the necessity to prepare and file a subpoena such that the full record is transferred from the lower court to the appellate court. Keep in mind that no matter which method you use, the appeal is always heard on a full record.

Eric R. Larke

3 Barker Avenue, 2nd Floor
White Plains, NY 10601
Phone: (914) 948-2240

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