CPLR 5528: What New York Appellate Briefs Must Contain

A New York appellate brief is not a free-form essay. CPLR 5528 prescribes what an appellant's brief, a respondent's brief, and a reply brief must contain, and the order in which those parts must appear. The Appellate Division's Uniform Rules, found at 22 NYCRR Part 1250, add formatting, length, and timing requirements on top of the statute. A brief that ignores either set of rules can be rejected by the clerk, stricken by the court, or penalized with costs under CPLR 5528(e).

This page walks through each subdivision of CPLR 5528, explains how the Appellate Division applies it, and gives worked examples of the pieces that trip up practitioners most often. For a broader discussion of how we build an appellate brief from the record up, see our separate practice page on that topic.

The Statutory Text: CPLR 5528(a) Through (e)

CPLR 5528 has five subdivisions. Subdivision (a) governs the appellant's brief. Subdivision (b) governs the respondent's brief. Subdivision (c) governs reply briefs. Subdivision (d) governs record citations. Subdivision (e) authorizes the court to withhold or impose costs for noncompliance.

CPLR 5528(a): The Appellant's Brief

Under CPLR 5528(a), the appellant's brief must contain the following, in this order:

1. Table of contents. The table must also list the contents of the appendix if the appendix is bound with the brief rather than as a separate volume.
2. Statement of questions involved. A concise statement, not exceeding two pages, of the questions presented. Each question must be numbered and set out separately. The statute directs that the questions be stated "without names, dates, amounts or particulars," and each must be followed immediately by the answer, if any, of the court from which the appeal is taken.
3. Statement of the nature of the case and facts. A concise statement of the nature of the case and of the facts a reader needs to decide the questions involved, with supporting references to pages in the appendix or record.
4. Argument. The argument for the appellant, divided into points under headings that are "distinctively printed."
5. Appendix. The appendix itself, unless it is bound separately or a reproduced full record is filed under CPLR 5526.

The order is mandatory. Clerks in both departments check for it at intake. A brief that opens with the facts and buries the questions presented after the argument does not comply.

CPLR 5528(b): The Respondent's Brief

A respondent's brief must follow the same structure as the appellant's brief, with two adjustments. First, a counterstatement of the questions involved, or of the nature and facts of the case, is included only if the respondent disagrees with the appellant's version. If the respondent accepts the appellant's statement, the respondent may say so and move to argument. Second, a respondent's appendix may contain only the additional parts of the record that are needed to consider the questions involved. It is not a vehicle for reproducing the entire file a second time.

CPLR 5528(c): Reply Briefs

Reply briefs must conform to subdivision (a) "without repetition." In practice, a reply brief carries a table of contents, a short preliminary statement, and argument points that respond to what the respondent actually said. A reply that restates the opening brief with new adjectives is both noncompliant and unpersuasive. New arguments raised for the first time in reply are generally not considered.

CPLR 5528(d): Record Citations

Every reference to the record must point to a page of the appendix, unless the appeal proceeds on a reproduced full record, in which case citations run to the record pages. The customary forms are "(A. 112)" for appendix pages and "(R. 112)" for record pages. A factual assertion with no page citation is treated as unsupported. Judges and their clerks read with the record open, and an uncited fact gets checked or discounted.

CPLR 5528(e): Costs for Noncompliance

The statute closes with a sanction: for any failure to comply with CPLR 5528 or with the rules of the court hearing the appeal, "the court may withhold or impose costs as justice requires." Costs are the floor, not the ceiling. The Appellate Division also exercises inherent authority to strike a nonconforming brief or to decline to consider portions of it, particularly where a brief exceeds the word limit or relies on material outside the record.

The Uniform Rules Layered on Top of CPLR 5528

Since September 2018, all four departments of the Appellate Division follow the Uniform Rules of Practice at 22 NYCRR Part 1250. Two sections matter most for brief content.

22 NYCRR 1250.8: Form, Length, and Certification

Section 1250.8 requires that briefs conform to CPLR 5528 and CPLR 5529, and adds requirements of its own:

• Cover. The cover must identify the court, the caption, the index number, the appellate docket number, the nature of the brief, and counsel's name and contact information.
• Statement pursuant to CPLR 5531. On appeals from a judgment or order, the record or appendix must open with a CPLR 5531 statement listing the index number, the full names of the original parties, the court and county, the nature and result of the action, the date of the notice of appeal, whether the appeal is from the whole or part of the judgment, and the method of appeal (appendix or full record).
• Word limits. Computer-generated principal briefs are limited to 14,000 words; reply briefs are limited to 7,000 words. Typewritten briefs are limited to 70 and 35 pages respectively. Tables, the certificate of compliance, and any addendum are excluded from the count.
• Certificate of compliance. A computer-generated brief must end with a printing specifications statement certifying the typeface, point size, line spacing, and word count.
• Typeface. Text must be in a proportionally spaced serif typeface of at least 14 points, with footnotes at least 12 points. Text must be double-spaced, with block quotations and footnotes permitted in single spacing.

The word limit is the requirement most often litigated. A brief that comes in at 14,300 words is not "close enough." Counsel must either move for leave to file an oversized brief before the filing deadline or cut the text.

22 NYCRR 1250.9: When Briefs Are Due

Content and timing travel together, because a brief that is complete but late fails just as surely as one that is timely but defective. Under Section 1250.9, a civil appeal must be perfected within six months of the date of the notice of appeal. Perfecting means filing the appellant's brief together with the record or appendix and paying the fee. The respondent's brief is then due 30 days after service of the appellant's brief, and any reply is due 10 days after service of the respondent's brief. The departments grant extensions, but an appellant who lets the six-month period lapse without an extension faces dismissal for failure to prosecute.

Worked timing example

Suppose a Supreme Court, Kings County judgment is entered and served with notice of entry on February 10. The appellant files a notice of appeal on March 3. Under Section 1250.9, the appeal must be perfected by September 3. If the appellant serves its brief and appendix on August 20, the respondent's brief is due September 19, and the appellant's reply is due September 29. The appeal is heard in the Appellate Division, Second Department, which sets the calendar once the reply deadline passes. The First Department follows the same rule structure for appeals from New York and Bronx counties; see our guide to the Appellate Division, First Department for that court's practice.

Drafting Each Required Section

Questions Presented: The Two-Page Limit and the "No Particulars" Rule

The statutory instruction to draft questions "without names, dates, amounts or particulars" is frequently misunderstood. The point is to frame each question so that a judge reading it cold understands the legal issue without knowing the parties. Compare the following.

Noncompliant: "Did Justice Smith err on June 4, 2023, when she granted Acme Corp.'s motion for summary judgment dismissing Mr. Jones's $2.4 million Labor Law § 240(1) claim?"

Compliant: "Whether summary judgment dismissing a Labor Law § 240(1) claim is proper where the record contains conflicting testimony on whether the ladder from which the worker fell was secured. The court below answered yes."

The second version states the issue, identifies the governing statute, and reports the answer of the court below, all within a sentence or two. With a two-page cap, most briefs should present between one and four questions. A brief listing twelve questions signals that the appellant has not decided what the appeal is about.

Statement of Facts: Cite Every Sentence

CPLR 5528(a)(3) requires the facts to be stated "with supporting references to pages in the appendix." Draft the facts from the record, not from memory of the trial. Each factual sentence should carry a page cite. Where the appeal turns on a specific document, quote it and cite it. Where testimony conflicts, present both versions with citations; the Appellate Division reviews the weight of the evidence on appeals from judgments after trial, and a one-sided statement of facts costs credibility. Our page on CPLR 5501 and the scope of review explains what the court may and may not examine, which in turn dictates which facts belong in the statement.

The facts section is also where a respondent decides whether to file a counterstatement under CPLR 5528(b). If the appellant's facts are accurate but incomplete, a short counterstatement filling the gaps is appropriate. If the appellant's facts are accurate and complete, say so and move on.

Argument: Point Headings That State the Conclusion

CPLR 5528(a)(4) requires the argument to be "divided into points by appropriate headings distinctively printed." The convention in both departments is Roman-numeral points in capital letters or bold, each stating the conclusion the court should reach and the reason. A heading reading "POINT I: THE SUMMARY JUDGMENT STANDARD" tells the court nothing. A heading reading "POINT I: SUMMARY JUDGMENT WAS IMPROPER BECAUSE THE WORKER'S TESTIMONY THAT THE LADDER SHIFTED RAISED A TRIABLE ISSUE UNDER LABOR LAW § 240(1)" does the work. The table of contents reproduces every heading, so a judge scanning the table sees the entire argument in outline.

Preservation and Standing Statements

Although CPLR 5528 does not list them separately, well-drafted briefs identify, for each point, where in the record the issue was raised and preserved. An unpreserved argument is ordinarily beyond review. The appellant should also confirm at the outset that it is an aggrieved party entitled to appeal under CPLR 5511; a respondent who spots a standing defect will raise it, and a brief that addresses the point first controls the framing. See our discussion of CPLR 5511 and who may appeal.

Common Defects and Their Consequences

Appellate Term Appeals

CPLR 5528 applies by its terms to appeals to the Appellate Division, but the Appellate Term follows parallel content requirements for appeals from the Civil Court, District Courts, and City Courts. Word limits and timing differ. Counsel handling an Appellate Term appeal should check that court's rules rather than assume the Part 1250 figures apply.

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