Lisa Colosi Florio, Esq., is Co-Chair of WCBA Appellate Practice Committee and currently manages the appeals team at Abrams Fensterman, LLP, after a long career in public service as Counsel to the Chief Judge of the State of New York, Law Clerk to a NY Court of Appeals Judge and many trial court jurists, and Assistant District Attorney in the Appeals Bureau of the Westchester DA’s Office.

For Westchester litigators and appellate practitioners, recent decisions from the Appellate Division, Second Department involving the record on appeal command attention. In each case, the Court either dismissed a civil appeal¹ or barred issues from review² due to defects in the record that rendered it incomplete, improper or insufficient to permit informed review. “Your appeal was dismissed” is not the news anyone wants to deliver to a client. Because these orders are arriving at a fast clip—and often sua sponte—a date night with the statute governing records on appeal, Rule 5526 of New York Civil Practice Law and Rules (“CPLR”), and cases citing it, will be time well spent.

What belongs in the record on appeal?

Rule 5526 of the CPLR (“CPLR 5526”) teaches that the record on appeal from a final judgment must include “the notice of appeal, the judgment-roll,³ the corrected transcript of the proceedings…, any relevant exhibits…any other reviewable order and any opinions in the case.” When the appeal is from an interlocutory judgment or order, the record “shall consist of the notice of appeal, the judgment or order appealed from, the transcript, if any, the papers and other exhibits upon which the judgment or order was founded and any opinions in the case.”⁴ The point is that the appellate court must have all the documents that the trial court reviewed in issuing the judgment or order on appeal—nothing more and nothing less.

This sounds straightforward. So, what is going wrong?

Documents required by CPLR 5526 to be included in the record on appeal must be included within the record filed on the Appellate Division NYSCEF docket. It is not safe to simply refer in your appellate brief to the docket number of documents e-filed on the trial court’s NYSCEF docket without physically including them in the appellate record. On the other hand, a record on appeal cannot include documents outside those considered below—the Court will bar consideration of new materials and any discussion of them as dehors the record.⁵ A motion to strike extra material from the record and brief may be advisable if the material significantly infects the appellant’s argument but, for minor infractions, a request in a footnote that the Court disregard the improper material and any references may be sufficient. When compiling a record on appeal from an order deciding a motion on notice, a good place to start is with the court’s recitation in its order of “the papers used on the motion,” which recitation is mandated by Rule 2219 of the CPLR. If a court mistakenly omits a document from that recitation, a motion to resettle the order to add the missing document to the list is advisable.⁶

Avoid NYSCEF citation pitfalls.

Rule 2214(c)of the CPLR provides that, in an e-filed action, a party filing motion papers “need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system.” That practical rule makes it unnecessary to refile the original e-filed motion papers when moving to renew or reargue, where both motions are e-filed on the same NYSCEF docket. But this statute can lead to fatal mistakes in preparing the record on appeal.

When taking an appeal from an order granting reargument or deciding a motion to renew, the record on appeal must contain the original motion papers plus the submissions on reargument/renewal. Simply citing the Supreme Court NYSCEF docket numbers for the original e-filed motion papers that resulted in the order being reargued or renewed, without including those documents in the record on appeal, renders the record incomplete and may result in dismissal of your appeal.⁷

A related defect in the record occurs when a document that was e-filed on the trial court NYSCEF system is mentioned in motion papers below without referencing its NYSCEF document number. Where an attorney affirmation stated that an affidavit of service was e-filed, but omitted “’the docket numbers on the e-filing system’ corresponding to the previously e-filed affidavit of service,” the Second Department affirmed an order denying the motion to enter a default judgment, ⁸ and refused to consider the affidavit of service, which was “improperly included in the record on appeal, since it was not submitted to the Supreme Court in support of the motion.”⁹

Strategies for challenging an incomplete record.

If the appellant’s record is incomplete, a respondent may move to dismiss the appeal on that ground or argue the defect as an opening point in their brief.

The motion option carries the risk that the Court may allow the appellant to correct the defect by granting the motion unless the appellant files a supplemental record by a date certain.¹⁰ By contrast, a respondent may successfully obtain dismissal of an appeal when the insufficiency of the appellate record is raised in the brief.¹¹ The importance of paying close attention to the content of an appellate record cannot be understated. That vigilance must begin at the litigation’s inception.

Endnotes

1 See, e.g., McWhinney v. Rockland Cider Works, LLC, 2024 N.Y. Slip Op. 06035 (2d Dep’t 12/4/24) (record omitted “affirmations submitted by plaintiffs in lieu of offering live testimony at a hearing”); Fitzpatrick v. Affairs & Banquets Floral Servs., Inc., 227 A.D.3d 954 (2d Dep’t 2024) (record lacked pleadings or summary judgment motion submissions); Klein v. Richs Towing, 213 A.D.3d 920 (2d Dep’t 2023) (record devoid of pleadings or any “exhibits submitted in support of, or in opposition to, the defendants’ motion or the plaintiff’s cross-motion”); Progressive Specialty Ins. Co. v. Jang, 211 A.D.3d 736, 737 (2d Dep’t 2022) (record failed to “include the transcript of framed-issue hearing or the majority of the papers submitted” on petition to stay arbitration).

2 See e.g. Ritchey v. Ritchey, 218 A.D.3d 617 (2d Dep’t 2023) (appeal from portion of order denying motion to modify child support dismissed because record failed to include any motion papers or exhibits).

3 The term “judgment-roll” includes, “among other things, the summons, the pleadings, admissions, each judgment and each order involving the merits or necessarily affecting the final judgment.” Babayev v. Kreitzman, 168 A.D.3d 665, 656 (2d Dep’t 2019), quoting CPLR 5017(b).

4 CPLR 5526.

5 See, e.g., See Oluwo v. Mills, 228 A.D.3d 879 (2d Dep’t 2024) (Court has “not considered any material in the record on appeal that was not before the Supreme Court in determining the defendant’s motion”); Brightside Home Improvements, Inc. v. Northeast Home Improvement Servs., 209 A.D.3d 446, 451 (2d Dep’t 2022) (no review of inquest issues because defendants relied upon matters dehors the record and failed to include full inquest transcript).

6 See Simon v. Mehryari, 16 A.D.3d 664, 666 (2d Dep’t 2005) (motion to resettle appropriate “not for substantive changes, but to correct errors or omissions in form, for clarification or to make the order conform more accurately to the decision”).

7 See Eleven Stars, LLC v. Central Baptist Church, 206 A.D.3d 884 (2d Dep’t 2022), rearg denied __ A.D.3d __ (October 28, 2022).

8 Eastern Funding, LLC v. San Jose 63 Corp., 72 A.D.3d 818, 819 (2d Dep’t 2019), quoting CPLR 2214(c).

9 Id., citing CPLR 5526. See also Wydra v. Brach, 227 A.D.3d 277 (2d Dep’t 2024) (deposition testimony not identified by docket number below not considered on appeal); Terranova v. Baselice, 222 A.D.3d 901, 903 (2d Dep’t 2023) (motion papers failed to reference docket numbers corresponding to previously-filed motion papers or complaint).

10 See e.g. Revell v. Brookdale Hosp. Med. Ctr., 130 A.D.2d 475 (2d Dep’t 1987).

11McWhinney v. Rockland Cider Works, LLC, 2024 N.Y. Slip Op. 06035, 221 N.Y.S.3d 232, 233 (2d Dep’t [12/4/24]) (Court accepted argument in respondent’s brief that appeal should be dismissed because record failed to include affirmations submitted by plaintiffs in lieu of live hearing testimony, concluding that the omission inhibited the Court’s “ability to render an informed decision on the merits of the appeal.”)