When to Proceed on the Appendix Method in the Appellate Division, Second Department?

When to Proceed on the Appendix Method in the Appellate Division, Second Department?

{2 minutes to read} A common question we are often asked is: what is the Appendix method and how does it work? The simple answer would be the Appendix method is the process of perfecting an appeal by submitting an “abbreviated” or “narrowed” set of papers comprising an Appendix to your Appellate Brief.

When proceeding on the Appendix method, the original record on appeal is transferred by subpoena from the court of the original instance to the Appellate Division, Second Department (AD2). Should AD2 wish to review documents not reproduced in your Appendix, access is available in the original file as transferred to the Appellate Division, Second Department.

In addition, the Respondent(s) have an automatic right to produce their own Appendix when the Appellant proceeds with the Appendix method. However, consistent with the Appellant’s responsibilities, the Respondent(s) should not include documents outside of the record. (Note: the Appellant must reproduce the documents in the Appendix that are properly part of the record below and that are being relied upon in the appellate briefs and will likely be relied upon in all adversaries’ briefs.)

The Appellant must carefully consider reproducing the documents that adverse parties are likely to rely upon. Moreover, documents that serve as the Scope of Review, which warrant the AD2 examination should also be carefully considered for inclusion. Failure to include documents that are substantive and are properly part of the record below may result in a Motion to dismiss.

However, in our opinion and experience, AD2 will generally grant any requested relief to cure such a defect in the Appendix and not necessarily dismiss the Appeal. The Appendix is an efficient and cost-effective strategy to employ when the Record on Appeal contains voluminous material not essential to the parties’ arguments.

There are many nuances to the Appendix method, which can’t be covered in this short blog. Please contact our friendly staff with additional questions as we’re here to help you.

Eric R. Larke

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


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