CPLR 5526: What Belongs in the Record on Appeal

An appeal in New York is decided on paper. The Appellate Division does not take testimony, receive new exhibits, or hear from witnesses. It reads the record that the appellant assembles and files. If a document is not in that record, the court will not consider it. CPLR 5526 tells you which documents belong there.

This page explains the statute, the court rules that build on it, and the practical steps for putting together a record that the clerk will accept and the justices can use. It also covers the mistakes that lead to appeals being dismissed before anyone reads the brief.

The text of CPLR 5526

CPLR 5526 is titled "Content and form of record on appeal." It divides records into two categories depending on what is being appealed.

For an appeal from an interlocutory judgment or any order, the record must consist of the notice of appeal, the judgment or order appealed from, the transcript (if there is one), the papers and other exhibits upon which the judgment or order was founded, and any opinions in the case.

For an appeal from a final judgment, the record must consist of the notice of appeal, the judgment-roll, the corrected transcript of the proceedings or a statement under CPLR 5525 if a trial or hearing was held, any relevant exhibits (or copies of them) in the court of original instance, any other reviewable order, and any opinions in the case.

The statute closes by requiring that the record be printed or reproduced in the manner provided by the rules of the court to which the appeal is taken. In practice that means 22 NYCRR Part 1250, the statewide Practice Rules of the Appellate Division, together with any local rules of the department hearing the appeal.

Records on appeal from an order

Most appeals in New York civil practice are taken from orders, not final judgments. A motion to dismiss is granted or denied. Summary judgment is awarded. A preliminary injunction issues. Each of these produces an order, and the record for an appeal from that order is defined by the first sentence of CPLR 5526.

The phrase that matters is "the papers and other exhibits upon which the judgment or order was founded." This means every paper the motion court had in front of it when it ruled. For a typical motion, that includes:

• The notice of motion or order to show cause
• Every affidavit and affirmation submitted in support, with all exhibits attached to them
• Every affidavit and affirmation submitted in opposition, with exhibits
• Reply papers, if the court accepted them
• Memoranda of law, if the department's rules call for them (the Second Department generally excludes them; check the local rule)
• The transcript of oral argument, if argument was held and transcribed and the court relied on it
• The decision, if separate from the order
• The order itself, with the clerk's entry stamp
• The notice of appeal, with proof of filing

The record for an order appeal does not include the entire court file. Pleadings filed years earlier, discovery motions unrelated to the ruling, and papers from other motions do not belong unless the motion court actually considered them. Including them adds cost and invites the respondent to argue that you have padded the record.

Records on appeal from a final judgment

A final judgment ends the action. The record on appeal from one is broader because CPLR 5501(a)(1) allows the appellant to obtain review of any non-final judgment or order that necessarily affects the final judgment. CPLR 5526 accounts for this with the reference to "any other reviewable order."

The judgment-roll

The judgment-roll is defined in CPLR 5017(b). The clerk assembles it when judgment is entered, and it contains the summons, the pleadings, any admissions, the verdict or decision, the judgment, and each order involving the merits or necessarily affecting the final judgment, together with the papers on which those orders were made. In a case that went to trial, the judgment-roll is the skeleton of the record.

The corrected transcript

If a trial or hearing was held, the record must include the transcript, and CPLR 5526 specifies the corrected transcript. The correction process is set out in CPLR 5525(c) and is discussed below. An uncorrected transcript filed without going through settlement is a defect the respondent can raise.

Exhibits

The statute calls for "any relevant exhibits." Every exhibit received in evidence at trial does not automatically go in. The appellant must decide which exhibits bear on the issues raised on appeal and reproduce those. Exhibits that were marked but not received should be included only if the ruling excluding them is being challenged. Physical exhibits that cannot be reproduced on paper (a damaged machine part, a large map) are handled by describing them and, where the department permits, arranging for the original to be transmitted to the appellate court.

Other reviewable orders

If the trial court denied your motion for summary judgment two years before trial and the case then went to verdict, the summary judgment denial is not reviewable on appeal from the final judgment in most circumstances, because the trial superseded it. But an order denying a motion to dismiss for lack of jurisdiction, or an order striking an affirmative defense, may necessarily affect the judgment and be reviewable. Those orders, and the papers on which they were decided, belong in the record.

Transcripts under CPLR 5525

CPLR 5526 refers to CPLR 5525 for the transcript, and the two sections must be read together.

Ordering the transcript

The appellant is responsible for ordering and paying for the transcript. Court reporters in New York often take weeks or months to produce a trial transcript, and the six-month period to perfect the appeal under 22 NYCRR 1250.9(a) runs from the date the notice of appeal is filed, not from the date the transcript arrives. Order the transcript the same week you file the notice of appeal. If the reporter cannot deliver in time, you will need to move for an extension under 22 NYCRR 1250.9(b) and show the reporter's delay.

Settlement of the transcript

CPLR 5525(c)(1) sets out the settlement procedure. Within 15 days after receiving the transcript, the appellant must make any proposed amendments and serve them, along with a copy of the transcript, on the respondent. The respondent then has 15 days to serve objections or additional proposed amendments. If the parties agree, they stipulate to the corrected transcript. If they do not, either party may ask the trial judge to settle the transcript under CPLR 5525(c)(2), and the judge's determination controls.

Here is how the timeline runs in practice. Suppose judgment is entered on March 3 and the notice of appeal is filed on March 20. The transcript is ordered March 21 and delivered on May 15. Proposed amendments must be served by May 30. The respondent's objections are due by June 14. If the parties stipulate on June 20, the corrected transcript is ready for the record. The six-month perfection deadline falls on September 20. That leaves three months to assemble the record and write the brief, which is adequate if the transcript arrived on schedule and tight if it did not.

Statement in lieu of transcript

CPLR 5525(d) permits the parties to prepare and sign a statement showing how the questions arose and were decided, in place of a full record, when the appeal can be determined without examining all the pleadings and proceedings. CPLR 5527 requires that the statement be settled and approved by the trial judge. This method is rarely used because it requires cooperation from a respondent who has just won, but it can save substantial cost in a case that turns on a single legal question.

How Part 1250 builds on CPLR 5526

CPLR 5526 sets the minimum content. The Appellate Division rules at 22 NYCRR 1250.7 dictate form, sequence, and additional required items. Under 1250.7(a), the record may be filed as a reproduced full record, an appendix with the original record, or an agreed statement in lieu. The choice between the first two methods is discussed in detail on our page comparing the appendix method and the full record.

For a reproduced full record, 1250.7(b) requires the following items in this order:

1. A cover page with the caption and the required identifying information
2. A table of contents listing each document and each witness, with page references
3. The statement required by CPLR 5531
4. The notice of appeal (or order granting leave to appeal)
5. The judgment or order appealed from
6. The decision or opinion, if any
7. The judgment-roll, where the appeal is from a final judgment
8. The transcript and other papers, in chronological order
9. Exhibits, with the trial exhibit number or letter preserved
10. Any other order or decision necessary for review

Under 1250.7(g), the record must be certified. Three methods are available: a certificate of the clerk of the court of original instance, a stipulation between the attorneys under CPLR 2105 that the reproduced record is a true copy of the originals, or a certificate of the appellant's attorney to the same effect. The stipulation is the usual route, and a respondent who refuses to stipulate to an accurate record without explanation risks being charged with the cost of certification.

The CPLR 5531 statement

CPLR 5531 requires a statement at the front of the record containing the index number, the full names of the original parties and any changes, the court and county from which the appeal is taken, the nature and object of the action, the result reached below, the grounds for seeking reversal, the nature of the judgment or order appealed from with its date of entry, and whether the appeal is on the full record or by the appendix method. The statement is short but the clerk checks it, and a missing or incomplete statement is a common reason for rejection at filing.

What does not belong in the record

The rule against matter outside the record (often called matter dehors the record) is strictly enforced. The Appellate Division will not consider documents that were not before the court below, and it will strike portions of a brief that rely on them. Common offenders include:

• Affidavits or documents created after the order was entered
• Deposition transcripts that were never submitted on the motion
• Correspondence between counsel that was not filed with the court
• Materials from a related action or proceeding
• Papers from a motion to reargue or renew, unless the appeal is taken from the order deciding that motion

The appellant also may not omit material that cuts against it. In Block v Nelson, 71 AD2d 509 (1st Dept 1979), the court made clear that an appellant is not free to assemble a record containing only the papers favorable to its position while leaving out the respondent's submissions. The record must reflect what the motion court actually had before it.

Consequences of a defective record

The appellant bears the burden of furnishing a record sufficient to permit review. When the record is inadequate, the Appellate Division does not send it back for repair. It dismisses the appeal or affirms. In Chimarios v Duhl, 152 AD2d 508 (2d Dept 1989), the Second Department dismissed an appeal because the appellant's record omitted papers the motion court had considered, and the court could not evaluate the ruling without them. The same result follows when a trial transcript is missing from an appeal from a judgment after trial, or when the exhibits necessary to assess a sufficiency argument were left out.

Less severe defects, such as an out-of-order table of contents or a missing CPLR 5531 statement, usually result in the clerk rejecting the filing. In an e-filed appeal, the clerk's office issues a deficiency notice through NYSCEF and sets a short period to cure. If the perfection deadline has passed by then, the appellant will need to move for an extension and explain the delay.

Respondents have their own remedy. A respondent who believes the record is incomplete may move to strike the record or to supplement it, or may file a supplemental record under 1250.7 containing the omitted papers. The cost of that supplemental record is typically charged to the appellant.

A worked example: appeal from an order granting summary judgment

Suppose a defendant in a contract action moves for summary judgment. The motion is supported by an attorney's affirmation, a client affidavit, the contract, and email correspondence. The plaintiff opposes with an affidavit, a deposition excerpt, and a memorandum of law. The defendant replies. The court hears argument on the record, then issues a written decision and, a week later, a separate order granting the motion and dismissing the complaint. The plaintiff files a notice of appeal within the 30 days required by CPLR 5513.

Under CPLR 5526 and 1250.7(b), the record on appeal would contain, in order:

1. Cover and table of contents
2. CPLR 5531 statement
3. Notice of appeal, with the affidavit of service
4. The order granting summary judgment, with entry stamp
5. The written decision
6. Notice of motion
7. Defendant's attorney affirmation and every exhibit attached to it
8. Defendant's client affidavit and exhibits
9. Plaintiff's opposing affidavit and exhibits, including the deposition excerpt
10. Plaintiff's memorandum of law, if the department's rules include memoranda
11. Defendant's reply papers
12. Transcript of oral argument, settled under CPLR 5525(c)
13. Stipulation as to the record under 1250.7(g)

Although the complaint was dismissed, this is an appeal from an order, not a final judgment, unless a judgment was entered on the order. If judgment was entered, the appeal should be taken from the judgment, and the record must then include the judgment-roll. The notice of appeal should identify the correct paper, because a notice that names the order when judgment has since been entered can create a jurisdictional problem the court must resolve before reaching the merits.

Coordinating the record with the perfection deadline

The record does not get filed on its own. Under 1250.9(a), the appellant perfects the appeal by filing the record and the appellant's brief together within six months of the notice of appeal. Our page on perfecting an appeal in the Appellate Division covers the filing mechanics and extension practice. For present purposes, the point is that record preparation and brief writing proceed in parallel, and the brief cannot be finalized until the record is paginated, because CPLR 5528(a)(3) requires the statement of facts in the brief to cite record pages.

A workable sequence is: order the transcript immediately; gather the motion papers from NYSCEF or the county clerk while waiting; settle the transcript when it arrives; assemble the record in 1250.7(b) order and paginate it; obtain the certification stipulation; then finalize the brief with page citations. Reversing the sequence, and writing the brief before the record is fixed, produces citation errors that the respondent will point out.

Summary of required contents

Item	Appeal from order	Appeal from final judgment	Source
Notice of appeal	Yes	Yes	CPLR 5526
Order or judgment appealed from	Yes	Yes (as part of judgment-roll)	CPLR 5526; 5017(b)
Judgment-roll	No	Yes	CPLR 5526; 5017(b)
Motion papers considered by the court	Yes	Yes, for reviewable orders	CPLR 5526; 5501(a)(1)
Transcript	If one exists	Corrected transcript, if trial or hearing held	CPLR 5526; 5525
Exhibits	Those on which the order was founded	Those relevant to the appeal	CPLR 5526
Decisions and opinions	Yes	Yes	CPLR 5526
CPLR 5531 statement	Yes	Yes	CPLR 5531; 22 NYCRR 1250.7(b)
Certification	Yes	Yes	22 NYCRR 1250.7(g); CPLR 2105

For a broader treatment of how the record functions in New York appellate practice, including the appendix alternative and the mechanics of e-filing, see our overview of the record on appeal in New York.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].