Appellate Law Overview

New York State's highest Court is the Court of Appeals, situated in Albany.  The State's intermediate appellate system is divided into four judicial departments: First Department, Second Department, Third Department, and Fourth Department. Each department controls a specific geographic segment of the State's 62 counties. While appellate practice in all five courts is governed by statute, each court has additional rules of procedure unique to itself.  While certain procedural missteps of statutory law can be fatal to an appeal, the courts' unique procedural rules are generally discretionary. Appellate practice is also governed by a full body of complex case law. The above links connect the reader with the rules and the FAQ's of each court.  A party seeking to take an appeal needs to be aware that, while the decisions of the Court of Appeals are binding on every court in the State, the decisions of one department are not binding on another.departmentAdditionally, although with very limited exception, all intermediate and final judgments and orders may be appealed automatically to the appellate division, there is no automatic right, however, to appeal to the Court of Appeals (except as permitted as by statute) meaning that a party must apply to the Court of Appeals for permission to appeal.

The absolute right to take an immediate appeal to the Appellate Division from final or (almost all) interim orders in matrimonial litigation is a priceless treasure of our judicial system. A party may challenge the outcome of an interim order or judgment made during the pendency of the action as well as final determinations.

The appellate court does not conduct a new trial and will not hear new evidence that had not been presented to the trial court. With the rarest exception, appellate courts review what transpired before the trial court and determine whether procedures and/or substantive law were applied correctly. Appellate courts generally give great deference to the trial court's findings of fact. In New York, property distribution, spousal support/alimony, child support, custody and visitation, and counsel and expert fees are always tried before a judge only. The appellate tribunal will also review for abuses of discretion.

To initiate an appeal, the “appellant” – the party appealing – must file a notice of appeal and designate an appellate record consisting of materials from the trial court which the appellant wishes to present to the appellate court. The time frame to file a notice of appeal in New York is 30 days from the date of service of the notice of entry of judgment. It is critical to note that a failure to serve within the 30-day period is absolutely fatal to the appeal -- in other words, the untimely taking of an appeal results in a forfeiture of the right to appeal -- it is jurisdictional and, pursuant to statute, even the appellate court may not extend the time to appeal.

Appellate cases generally involve three legal briefs, all of which must contain citations to cases, statutes, or other legal authorities. Briefs must also contain proper citations to the designated appellate record. First, the appellant files an opening brief. This brief must explain the factual and procedural history of the case, in a truthful and accurate  fashion, even if it is not kind to your client -- it is appellate-counsel's job to cast the best light on his client and try to make him/her as likable as possible. Counsel then explains, by a combination of fact and law, how the trial court erred and why the appellate court should reverse the ruling. The “respondent” then files an answering brief  with the appellate-court. Like the opening brief, this response should also explain the factual and procedural history, followed by argument to uphold the trial court. Finally, the appellant has an opportunity to file a reply brief. In the reply, the appellant argues against the claims made in the respondent's answering brief and is not permitted to introduce any new legal arguments. The reply must only address issues and statements made in the responsive brief.

After the briefs are filed, the Appellate Division may hear oral argument -- the time frame depends on the back log of cases awaiting argument. The appellate panel issues a written decision stating its reasoning. The timing of the written opinion varies considerably among different courts, but is generally a period of several months.

A party dissatisfied with an appellate court ruling may want to consider an appeal to the State's highest court, the Court of Appeals. Generally, with limited statutory exception, permission must be requested to appeal. One instance of an automatic right to appeal occurs when two justices dissent on the law (disagree with the majority opinion). Recent statistics from the Court Appeals show that only about 8-10% of civil cases are granted leave (permission) to appeal. A key factor that the high court looks for before granting leave to appeal that its decision will not just rectify the one case before it but rather what long range implications the issues have statewide.



Elliott Scheinberg represents clients throughout the state of New York, including Manhattan, Brooklyn, Staten Island, The Bronx, Queens, Westchester, Rockland, Orange, Dutchess, Putnam, Nassau and Suffolk Counties.

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