Cross-Appeals

When a trial court enters a judgment or order, it is not uncommon for both parties to walk away dissatisfied with some portion of the decision. In these situations, New York's appellate procedure provides a powerful but often misunderstood tool: the cross-appeal. A cross-appeal allows a party who is responding to an appeal to challenge aspects of the lower court's ruling that were adverse to them. Understanding when and how to pursue a cross-appeal can be the difference between protecting your rights on appeal and forfeiting them entirely.

Our appellate litigation attorneys regularly represent clients on both sides of cross-appeals before New York's Appellate Divisions and the Court of Appeals. This page explains what cross-appeals are, how they function under New York law, the deadlines you must meet, and the strategic considerations that can shape the outcome of your case.

What Is a Cross-Appeal?

A cross-appeal is an appeal taken by a party who has already been served with a notice of appeal by their opponent. In many cases, a single court decision contains rulings that favor one party on certain issues and favor the other party on different issues. When the losing party on one issue files an appeal, the other party may wish to challenge the portions of the decision that went against them. Rather than filing a wholly independent appeal, that party files a cross-appeal in response.

Cross-appeals are distinct from simply defending the judgment below. A respondent who is satisfied with the result and merely wants to preserve their victory does not need to file a cross-appeal. They can argue in their responding brief that the lower court was correct. A cross-appeal becomes necessary only when a party wants to obtain affirmative relief that would alter or expand the judgment in their favor beyond what the trial court awarded.

When Is a Cross-Appeal Necessary in New York?

One of the most important and frequently misunderstood principles in New York appellate practice concerns when a cross-appeal is actually required. The general rule is that a successful party who has obtained the relief they sought does not need to cross-appeal in order to defend the judgment on any ground that appears in the record, even grounds the trial court rejected.

However, a cross-appeal is necessary when a party seeks to modify the judgment to obtain something they did not receive below. Consider the following common scenarios where a cross-appeal is appropriate:

• Partial recovery in a damages case: A plaintiff who was awarded only a portion of the damages sought may cross-appeal to seek a larger award when the defendant appeals the liability finding.
• Mixed rulings on multiple claims: When a court grants summary judgment on some causes of action but denies it on others, a party may cross-appeal the rulings that went against them.
• Adverse evidentiary or procedural determinations: A party who prevailed overall but suffered an unfavorable ruling that could affect a potential retrial may need to cross-appeal to preserve that issue.
• Counterclaims that were dismissed: A defendant who successfully defended against the main claim but had their counterclaim dismissed may cross-appeal the dismissal.

Because the line between defending a judgment and seeking to modify it can be subtle, it is essential to consult experienced appellate counsel early. Failing to file a necessary cross-appeal can permanently waive your ability to obtain affirmative relief from the appellate court.

The Legal Framework Governing Cross-Appeals

Cross-appeals in New York are governed primarily by the Civil Practice Law and Rules (CPLR), particularly Article 55, along with the rules of the individual Appellate Division departments. Under the CPLR, the right to appeal is statutory, and the same is true for cross-appeals. A party must fall within the categories of orders and judgments that are appealable as of right or seek permission to appeal where required.

The CPLR also establishes the concept of "aggrievement." To take a cross-appeal, a party must be aggrieved by the order or judgment, meaning the decision must have denied them relief they requested or granted relief against them. A party who received everything they asked for is generally not aggrieved and therefore cannot appeal, even if they disagree with the trial court's reasoning.

Deadlines for Filing a Cross-Appeal

Timeliness is critical in appellate practice, and cross-appeals are no exception. Under the CPLR, a party generally has thirty days from service of the notice of appeal with notice of entry to file and serve a notice of cross-appeal. This deadline can be a trap for the unwary, because the cross-appeal window may extend beyond the original appellant's deadline in some circumstances.

The general timeline works as follows:

• The original appellant must serve a notice of appeal within thirty days after service of the judgment or order with notice of entry.
• The cross-appellant then has the longer of the time remaining in the original appeal period or ten days from service of the notice of appeal to file their cross-appeal.

Because these calculations can be complex and the consequences of missing a deadline are severe, parties considering a cross-appeal should act promptly. Once the deadline passes, the right to cross-appeal is typically lost, and there are very limited circumstances under which a late cross-appeal will be permitted.

The Cross-Appeal Procedure Step by Step

While the specific requirements vary somewhat among New York's four Appellate Division departments, the general process for pursuing a cross-appeal follows a predictable structure.

1. Filing the Notice of Cross-Appeal

The cross-appeal begins with the timely filing and service of a notice of cross-appeal. This document identifies the party taking the cross-appeal, the order or judgment being challenged, and the court to which the cross-appeal is taken. Like an original notice of appeal, it must be served on all parties and filed with the appropriate clerk.

2. Assembling the Record

On appeal, the parties must provide the appellate court with the relevant record from the proceedings below. In a cross-appeal, the parties often coordinate to produce a joint record or appendix that contains all the materials necessary to decide both the appeal and the cross-appeal. Proper record assembly is critical because the appellate court will not consider matters outside the record.

3. Briefing

The briefing schedule in a case involving a cross-appeal is more complex than in a straightforward appeal. The original appellant files an opening brief addressing the issues they raise. The cross-appellant then files a combined brief that responds to the appellant's arguments and presents the arguments supporting the cross-appeal. The original appellant files a reply brief that also responds to the cross-appeal, and the cross-appellant may file a final reply addressing only the cross-appeal issues.

4. Oral Argument

If oral argument is granted, both the appeal and cross-appeal are typically heard together. Each side is allotted time to argue their respective positions. Effective oral advocacy requires the ability to address both the issues raised on appeal and those raised on cross-appeal in a coherent and persuasive manner.

5. Decision

The appellate court issues a single decision resolving both the appeal and the cross-appeal. The court may affirm, reverse, or modify the order or judgment on any of the issues presented by either party.

Strategic Considerations in Cross-Appeals

Deciding whether to pursue a cross-appeal involves careful strategic analysis. A cross-appeal is not always advisable simply because a party suffered some adverse ruling. Experienced appellate counsel weighs several factors before recommending a cross-appeal.

Strength of the Underlying Issues

A cross-appeal should be supported by genuinely meritorious legal arguments. Raising weak issues on a cross-appeal can dilute the persuasive force of stronger arguments and may signal to the court that the cross-appellant lacks confidence in their core position.

Risk of Expanding the Scope of Review

Filing a cross-appeal opens additional issues for the appellate court to consider. In some cases, this can backfire by inviting the court to scrutinize aspects of the case that the cross-appellant might have preferred to leave undisturbed. A thorough risk assessment is essential.

Preservation of Issues

If there is any doubt about whether a cross-appeal is necessary to preserve an issue, the safer course is often to file one. The cost of an unnecessary cross-appeal is generally far lower than the cost of waiving a meritorious argument by failing to cross-appeal.

Settlement Leverage

A cross-appeal can change the dynamics of settlement negotiations. By placing the appellant's own favorable rulings at risk, a cross-appeal may encourage the opposing party to consider resolving the dispute rather than risking an adverse outcome on appeal.

Common Mistakes to Avoid

Cross-appeals are a technical area of practice where small errors can have significant consequences. Some of the most common pitfalls include:

• Missing the deadline: Failing to file the notice of cross-appeal within the required time forfeits the right to cross-appeal.
• Failing to cross-appeal when required: Assuming that a favorable judgment can be expanded without a cross-appeal can result in waiver of affirmative relief.
• Inadequate record: Omitting necessary documents from the record can prevent the appellate court from considering cross-appeal issues.
• Overloading the brief: Raising too many issues on cross-appeal can obscure the strongest arguments and tax the court's attention.

How Our Appellate Attorneys Can Help

Cross-appeals demand a sophisticated understanding of New York appellate procedure, sharp legal analysis, and persuasive written and oral advocacy. Our appellate litigation team brings extensive experience handling appeals and cross-appeals before the Appellate Divisions and the Court of Appeals. We begin every engagement with a careful review of the trial court record and the underlying rulings to determine whether a cross-appeal is necessary, advisable, or strategically beneficial.

When a cross-appeal is warranted, we manage every aspect of the process, from filing a timely notice of cross-appeal to assembling the record, drafting compelling briefs, and presenting oral argument. We also advise clients facing a cross-appeal from an opposing party, developing strategies to protect favorable rulings while neutralizing the cross-appellant's arguments.

If you have received a judgment or order that contains rulings adverse to your interests, or if your opponent has filed an appeal and you are considering your options, time is of the essence. Cross-appeal deadlines are strict, and early consultation gives you the best opportunity to preserve your rights.

Contact our office today to schedule a consultation with an experienced New York appellate attorney. We will evaluate your case, explain your options, and help you make informed decisions about whether and how to pursue a cross-appeal.

You can contact us by phone at 212-233-1233 or by email at [email protected].