Appeals may be taken to the Appellate Division “as of right” or by permission to Appeal. By either mechanism, the deadlines are tight and near absolute. In order to Appeal, there must be an Order or Judgment, properly filed and entered in which plaintiff and defendant have participated. If the defendant defaulted, appeal is not the proper avenue to take and will not be accepted. The vehicle to cure a default would be motion to the trial court.
Decisions, rulings, reports or verdicts alone cannot be appealed, so the Order or Judgment must be rendered, filed and entered in those cases before appeal is available. On occasion, a person will have to press to get the Order or Judgment when only a Decision or ruling has been rendered in to order to appeal.
Permission to appeal is done by filing a motion for that permission. This is frequently used when there is a determination on a motion decided during the pendency of the case that needs immediate challenge. Very often, this happens in matters of temporary custody orders and like orders that will greatly impact, wrongly, the final Judgment in the case.
When an Appeal is sought, this does not stay (put on hold) the judgment that is being appealed. To stay that Judgment, a motion must be brought indicating why a stay of the trial court order is needed and that need is why stay is being sought.
The Process, in minimal detail:
- Notice of Appeal and all other required documents (pre-trial statement, copy of Order(s) appealed from) must be prepared, served and properly filed within 30 days of service of Notice of Entry of the Judgment/Order being appealed;
- For Family Court and Surrogate’s Court, there is no filing fee, though there is a fee for other Notices of Appeal;
- Both sides have the power to Appeal, so a Cross-Appeal has to be filed within that same 30 day period;
- After filing and acceptance of the Notice of Appeal, the party appealing must put together the Record on Appeal and the Appellant’s Brief. If this is not done within 60 days, the other side has the right to bring a motion for the Appeal to be dismissed, though the motion can be fought successfully if there is adequate reason for the delay;
- The Appellant’s Brief is limited to 70 double spaced, typewritten pages in a very specific format, and also requires a Table of Contents and Table of Authorities. Filing fees are involved, as are costs for printing and binding not just the Brief, but the Record;
- The Record can be put together in varies forms, depending on the nature of the Appeal, the Court from which the Appeal generates and the preference of the Appellant/Appellant’s counsel. In addition, both sides must approve the Record, called “settling the record.” If that is not possibly, there are additional processes that must be followed;
- The Appendix Method of putting together the Record is not covered here, nor is the detail of putting the Record itself together;
- The Appellant’s Brief and Record, after due service upon all relevant and required parties, is filed with the proper Appellate Division, with the designated number of copies (original and 9 copies, but for Family Court appeals which require an original and 6 copies), together with the Affidavits of Service upon everyone that was duly served and the proper filing fee;
- When these documents have been filed and accepted by the Appellate Court, the appeal has been “perfected.” The Court then generates a scheduling letter advising, in part, when the Respondent’s Brief is due, which is generally 45 days later;
- The Respondent (responding party) must serve the Respondent’s Brief is limited in length
- The Appellant may then Reply, within 10 days, to the Respondent’s Brief
- Oral argument is the final stage of Appeals
I you have an appeal, or wish to discuss the possibility of brining an appeal, please Contact Diana, or call her at 315-565-2760.