Current through Register Vol. 46, No. 39, September 25, 2024
At appellant's option, an appeal may
be prosecuted upon a record or statement authorized by CPLR 5526, 5527 or
5528.
(a) The appendix
system.
(1) If the appeal is
prosecuted by the appendix system pursuant to CPLR 5528(a)(5), appellant shall
subpoena, from the clerk of the court from which the appeal is taken, the
papers constituting the record on appeal as set forth in CPLR 5526 and cause
them to be filed with the clerk of this court within 30 days after settlement
of the transcript of proceedings or statement in lieu of a transcript. At the
time the subpoena is served, the appellant shall deliver to the clerk two
copies of the statement required by CPLR 5531.
(2) The clerk from whom the
papers are subpoenaed shall prefix one copy of the statement required by CPLR
5531 to the papers and firmly fasten such papers across the top, exclusive of
the transcript or statement in lieu thereof, if any, and transmit them to the
clerk of this court, together with the additional copy of the statement
required by CPLR 5531 and a certificate listing the papers constituting the
record on appeal and stating whether all such papers are included in the papers
transmitted.
(3) If
a transcript of proceedings or statement in lieu of a stenographic transcript
as settled is not included in the papers so subpoenaed, appellant shall file
the ribbon copy of the transcript or the statement at the time of filing the
appellant's brief. Where feasible, the parties shall stipulate, pursuant to
CPLR 5525, subdivision (b), that only a portion of the transcript of
proceedings need be filed.
(4) Where a full or partial transcript
of proceedings is made part of the record on appeal, appellant shall serve
upon, or make available to, respondent a conformed copy thereof in the manner
and at the time prescribed by subdivision (e) of this section.
(b) Agreed
statement in lieu of record.
(1) If the appeal is prosecuted
pursuant to CPLR 5527, appellant shall reproduce the statement in lieu of a
record on appeal as a joint appendix by printing or such other method of
reproduction authorized by CPLR 5529. There shall be prefixed to these papers
the statement required by CPLR 5531.
(2) Appellant shall file the original
and 9 copies of the statement, with proof of service of two copies, within 30
days after approval of the statement by the court from which the appeal is
taken, as required by CPLR 5527.
(c) Optional full record. If appellant
elects to proceed on a completely reproduced record on appeal as authorized by
the provisions of paragraph 5, subdivision (a), of CPLR 5528, the record shall
be printed or otherwise reproduced as provided in section
600.10 of this Part, and in such
case an appendix shall not be required. A copy of the record, duly certified,
as provided in section
600.10(b)(1)(viii)
of this Part, and 9 copies of such certified reproduced record, with proof of
service of two copies, shall be filed within 30 days after settlement of the
transcript of proceedings. Where feasible, the parties shall stipulate,
pursuant to CPLR 5525, subdivision (b), that only a portion of the proceedings
need be filed.
(d)
When record does not involve settlement or approval. If the appeal is
prosecuted upon a record which does not involve a transcript or statement
requiring settlement or approval by the court from which the appeal is taken,
the record on appeal must be filed or caused to be filed within 30 days after
filing of the notice of appeal.
(e) Settlement of transcript.
(1) Within 15 days after
receiving the transcript from the court reporter or any other source, the
appellant shall make any proposed amendments and serve them and a copy of the
transcript upon the respondent. Appellant may serve on respondent, together
with the copy of the transcript and the proposed amendments, a notice of
settlement containing a specific reference to this subdivision, and stating
that if respondent fails to propose amendments or objections within 15 days,
the provisions of paragraph (2) of this subdivision shall apply. Within 15 days
after such service, the respondent shall make any proposed amendments or
objections to the proposed amendments of the appellant and serve them upon the
appellant. At any time thereafter and on at least four days' notice to the
adverse party, the transcript and the proposed amendments and objections
thereto shall be submitted for settlement to the judge or referee before whom
the proceedings were had if the parties cannot agree on the amendments to the
transcript. The original of the transcript shall be corrected by the appellant
in accordance with the agreement of the parties or the direction of the court,
and its correctness shall be certified to thereon by the parties or the judge
or referee before whom the proceedings were had. When he serves his brief upon
the respondent, the appellant shall also serve a conformed copy of the
transcript or deposit it in the office of the clerk of the court of original
instance, who shall make it available to respondent.
(2) If the appellant has
timely proposed amendments and served them and the transcript and the notice
provided by paragraph (1) of this subdivision, and no amendments or objections
are proposed by the respondent within the time limited by this rule, the
transcript, certified as correct by the court reporter, together with
appellant's proposed amendments, shall be deemed correct without the necessity
of a stipulation by the parties certifying to its correctness or the settlement
of the transcript by the judge or referee. The appellant shall affix to such
transcript an affirmation, certifying to his compliance with the time
limitation and the respondent's failure to propose amendments or objections
within the time prescribed.
(f) Transcript--number to be prepared
by court reporter. Pursuant to CPLR 5525(a), in all appeals taken from
judgments or orders entered in this department, the appellant may request that
only the ribbon copy of the typewritten transcript by prepared by the reporter.
If such request be made, only the ribbon copy shall be required to be prepared
by the reporter and furnished to the appellant. If the appeal is by the
appendix method, such ribbon copy shall be included in the record on appeal for
use by the parties and the court.
