Home Civil and Criminal Appeals Frequently Asked Questions
Civil and Criminal Appeals
Q: Where do I file the notice of appeal when taking an appeal as of right to the Court of Appeals?
A: In general, the notice of appeal must be filed with the clerk of the court of original instance (CPLR 5515), not with the Court of Appeals. In Workers’ Compensation and Unemployment Insurance matters, the notice of appeal to the Court of Appeals is filed in the Appellate Division, Third Department.
Q: If I am moving for leave to appeal in a civil or criminal case, do I have to file and serve a notice of appeal?
A: No, unless you wish to simultaneously appeal as of right and seek leave to appeal in a civil case. If it is done, the Rule 500.9 preliminary appeal statement should mention the pendency of the motion for leave, and the motion for leave should mention the pendency of the appeal.
Q: How do I determine when an appeal is “taken” to satisfy the requirement for filing a Rule 500.9 preliminary appeal statement within “10 days from the time the appeal is taken”?
A: In civil cases, an appeal is taken “by serving on the adverse party a notice of appeal and filing it in the office where the judgment or order of the court of original instance is entered except that where an order granting permission to appeal is made, the appeal is taken when such order is entered” (CPLR 5515). Orders of the Court of Appeals granting leave to appeal in civil cases are entered on the date they are issued. In criminal cases, “the issuance of the certificate granting leave to appeal shall constitute the taking of the appeal” (CPL 460.10[b]).
Q: At what stage of the appeal process do I pay the filing fee required in civil appeals pursuant to CPLR 8022?
A: CPLR 8022 provides that the fee shall be paid “upon the filing of a record on a civil appeal.” Thus, the fee is paid when the appellant files record material pursuant to Rule 500.11 or 500.12 (see Rule 500.3[a]).
Q: Does the Court assign docket numbers to appeals?
A: The Court assigns a number to each appeal (e.g., APL-2013-00001).
Q: What documents must be included in an appendix filed pursuant to section 500.14(b) of the Rules of the Court of Appeals?
A: The appendix must contain all record material deemed necessary for the Court’s consideration of the questions presented on the appeal. Some of the specific materials to be included in an appendix are listed in section 500.14(b) of the Rules of the Court of Appeals.
Q: Do I have to file a preliminary appeal statement in criminal cases?
A: Yes. Pursuant to Rule 500.9(a), a preliminary appeal statement must be filed in all civil and non-capital criminal appeals.
Q: How do I request an extension of time to file record material or briefs?
A: Please refer to section 500.15 of the Rules of the Court of Appeals.
Q: Do the parties to an appeal have a right to respond to amicus curiae briefs filed in connection with the appeal?
A: Briefs in response to an amicus curiae brief on a normal course appeal are not required, but may be served and filed by a party whose position is adverse to that of the amicus brief (see Rule 500.12[f]). Letters replying to amicus submissions on an alternative procedure appeal (Rule 500.11) also are not required, but may be served and filed by a party whose position is adverse to that of the amicus submission.
Q: Does the selection of my appeal for consideration pursuant to Rule 500.11 indicate that the Court intends to affirm the order or judgment appealed from?
A: No. Selection of an appeal for consideration pursuant to Rule 500.11 does not suggest the Court’s view of the merits of the appeal. Some of the reasons an appeal is selected for alternative procedure review under Rule 500.11 are listed in Rule 500.11(b).
Q: If the Court dismisses my civil appeal as of right after a Rule 500.10 jurisdictional inquiry, am I precluded from asking the Court for permission to appeal from the same order or judgment?
A: No. If a timely civil appeal is dismissed, the appellant may move for permission to appeal. The time for the appellant to make such a motion runs from the service by a party of the original order of dismissal with written notice of its entry (see CPLR 5514[a]); Matter of Park East Corp v Whalen, 38 NY2d 559, 560).
Q: How do I obtain copies of briefs and records filed with the Court of Appeals?
A: The Court retains for public use one copy of briefs and records on appeal for two years after the Court decides the appeal. The documents are available for loan after the appeal has been argued or, if submitted, decided. You may call or write the clerk’s office to request these documents, which may be picked up in person at the clerk’s office or sent to you by mail at your expense. If you request delivery by mail, you must give the clerk’s office your account number with a mail carrier that provides a tracking service. If your request concerns a case decided more than two years ago, you may contact the New York State Library at (518) 474-5355 (Reference Desk) or (518) 474-8955 (Archives). The briefs and records on appeals for appeals pending or filed after January 1, 2013 also are available for viewing on or downloading from the Court of Appeals Public Access and Search System (Court-PASS) on the Court's internet website.
Q: How do I obtain videotapes of oral arguments?
A: Videotapes of oral arguments are available shortly after an appeal is argued.
Videotapes from 1989 to the present can be purchased from the Government
Law Center at Albany Law School, phone (518) 445-3287.