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Appealing a Small Claims / Commercial Claims / Summary Proceeding / Civil Court Decision

If either party to a small claim/commercial claim/summary proceeding/civil action dispute believes that a City Court decision is legally incorrect, he/she may ask to have that determination reviewed by a judge of the County Court. You should read the following in it's entirety before proceeding with an appeal.

 

However, before deciding to appeal the decision, there are certain matters which you should understand and consider before proceeding on an appeal:

Taking an appeal will probably involve additional expense including, but not limited to, a filing fee with the City Court at the time you file your Notice of Appeal. Other expenses may include the cost of preparing the transcript of the trial or hearing and, if you choose, the cost of hiring an attorney to represent you on the appeal.

You may be entitled to proceed as a poor person and have the costs of the filing fee waived or have the transcripts paid for by the county and/or for assignment of an attorney for the appeal:

  • To waive the filing fee, you will need to file the poor person application with the City Court.
  • To have the costs of the transcripts paid by the county and/or for assignment of an attorney, you will need to file a poor person application with the County Court pursuant to CPLR sec. 1101. If granted by the County Court, you will need to supply the City Court with the Order from the County Court.

A Notice of Appeal is merely a written statement to the Court indicating your intention to proceed with an appeal. The filing of the Notice of Appeal with the City Court is the first step, but is not, by any means, the appeal itself. You will have an opportunity to provide the appellate court (the County Court) with your written arguments only after the transcript of the court proceedings have been prepared and the City Court has filed the Return on Appeal (the City Court file) with the appellate court. The specific procedures for proceeding with an appeal are listed below.

There are strict time limits for filing a Notice of Appeal and "perfecting" the appeal. Depending on the method of service of the Notice of Judgement on the parties you have either thirty (30) days or thirty-five (35) days from the date of entry of the judgement to file a Notice of Appeal with the City Court.

Specifically, in a Small Claims/Commercial Claims action, the earlier of the following starts the time to file a Notice of Appeal:

  • 30 days if the Court serves the Notice of Judgement on the parties in court or if one of the parties personally serves the Notice of Judgement on the opposing party; or 2)
  • 35 days if the Court mails the Notice of Judgement to the parties or if one of the parties mails the Notice of Judgement by mail to the opposing party.

  • In other civil actions (not small claims/commercial claims), the time to file a Notice of Appeal with the City Court is generally 30 days from the date of entry of the judgement.

    Additionally, you will be bound by time limits to "perfect" your appeal with the appellate court.

    County Court has no authority to rehear your case, to retry your case, or to consider any facts other than those presented at the hearing. A Judge of the County Court is permitted only to review how the Judge in the City Court decided the matter; that is, whether the Judge in the City Court correctly applied the law and whether, by his/her decision, "substantial justice" (not complete justice or perfect justice) was done between the parties. This very limited scope of review results in a reversal or modification of only those judgments that clearly deviate from the substantive law, not those on which another court might simply have gone the other way.

    County Court cannot review any evidence that was not presented to the local court nor, except in a very rare case, will the County Court interfere with the credibility assessments made by the City Court.

    If a default judgment was taken against you because you failed to appear for the City Court hearing, that judgment cannot be appealed. You must make a motion in City Court to vacate the default. To make such a motion, an affidavit under oath must be prepared that states the reason why you failed to appear in Court on the scheduled date and clearly sets forth your defense to the claim. The accuracy of this affidavit must be sworn to before a Notary Public and then provided to the other party. An Affidavit of Service By Mail (download in ADOBE ACROBAT) must be completed and filed with the Court to attest that the motion affidavit was served on the other party. If the motion is denied, that denial can then be appealed.

    A pending appeal does not prevent the prevailing party from taking steps to enforce the judgment. You can seek a stay of the judgment pending appeal which involves filing an undertaking (paying the amount of the judgment) with the City Court pending the determination of the appeal.

    Should you wish to proceed with an appeal of the decision of the City Court, you must follow the following procedures:

    1. Within thirty (30) days from the date of the decision, file (by mail or in person) an original written Notice of Appeal (download in ADOBE ACROBAT) with the City Court that heard and decided the case. The Notice should contain the caption of the case, the docket number associated with that case, and a statement that you (as the "appellant") intend to appeal the decision of the Court. You must also include your address and the address of the opposing party.

    You must arrange to have a copy of the Notice of Appeal (download in ADOBE ACROBAT) delivered on the opposing party and the other party's attorney before filing the Notice of Appeal with the Court. You must then file the Notice of Appeal (original and copy) and an Affidavit of Service (download in ADOBE ACROBAT) with the City Court. Note that the Notice of Appeal cannot be served by a party to the action; service must be made by a non-party who is 18 years of age or older (CPLR 2103[a]). In the event the opposing party is represented by an attorney, the Notice of Appeal must be served upon the opposing party AND the attorney for the opposing party.

    You must also file a copy of the Notice of Appeal with the County Clerk.

    There is also a filing fee payable to the City Court where your case was heard. Payment must be made by Certified Check or Money Order payable to the City Court or Cash and is not refundable.

    2. If there was a Court Reporter at the trial:

    If a Court Reporter was present in the Courtroom for the trial, you must contact that reporter and request a transcript of the trial. You must advise the Court Reporter that there is an appeal pending in the City Court and the reporter is then required to file an original transcript with the City Court. If you wish to obtain a copy of the transcript for your records, you must make those arrangements directly with the reporter.

    The cost of the preparation of a transcript (both the court's original and any copy for your record) is solely your responsibility (unless you have been granted poor person status by the County Court pursuant to CPLR sec. 1101) so you must request a cost estimate of the transcript before ordering the transcript (Note: this is only an estimate and the actual cost may be less or more than the estimate). The reporter may require an advance deposit before starting the transcript and will require payment of the balance before releasing the transcript.

    If there was no court reporter at the trial, the trial will have been taped on audio cassette. If this is the case, then you will need to make a written request to the City Court for the transcript to be prepared. Your written request must contain the date(s) of the trial and the transcription service that you wish to use to prepare the transcript. Click here to obtain a list of available transcription services. The Court Clerk will send the audio tape to the transcription service that you have selected.

    It is your responsibility to pay for the cost of the two transcripts (unless you have been granted poor person status by the County Court pursuant to CPLR sec. 1101): one which will be filed with the Court and one for yourself . (Note: If you do not wish to have a transcript provided to you, you must notify the transcription service that only one copy should be prepared and sent to the Court. You should be aware that the Court will not provide you with a copy of the transcript).

    You must request a cost estimate of the transcript before ordering the transcript (Note: this is only an estimate and the actual cost may be less or more than the estimate). The reporter may require an advance deposit before starting the transcript and will require payment of the balance before releasing the transcript.

    3. After the City Court has received the original transcript of the trial, the City Court will file a Return on Appeal (that is, the City Court file including the transcript) with the County Clerk. The County Clerk will notify the County Court that the Return on Appeal has been filed. The City Court will notify the appellant and the opposing party when the "Return" has been filed with the County Clerk.

    4. At this point, the matter is now to be considered by the County Court. If you wish to file additional documentation or written arguments in support of the appeal with the County Court, you should contact the County Court Clerk's office on the procedure for submitting additional documents. Any documents which you provide to the Court should always be provided to the opposing party.

    5. If, after you have started an appeal, you change your mind and wish to discontinue or withdraw the appeal, you must notify the City Court and County Court, in writing, of the discontinuance. You should also notify the opposing party that you will not be proceeding with the appeal. Of course, you will also be responsible for any costs associated with the appeal including any portion of the transcript which has already been prepared.

    6. After the appeal has been decided by the County Court, a copy of that decision will be mailed to you at the most recent address on file with the County Court.

    Note: You may visit the Supreme Court Library located in your county for legal references on the filing of a civil appeal. Court personnel cannot provide legal advice