The Record on Appeal: Appendix Method vs. Full Record

An appeal to the Appellate Division is decided on paper. The justices did not sit through the trial, did not hear the witnesses, and will not consider anything that is not properly before them. The document that carries your case upstairs is the record on appeal, and New York gives appellants two principal ways to assemble it: the full reproduced record and the appendix method. The choice affects cost, timing, and, if handled badly, whether the court reaches the merits at all.

What the Record Must Contain: CPLR 5526

CPLR 5526 defines the content of the record. In an appeal from a judgment after trial, the record consists of:

• the notice of appeal;
• the judgment or order appealed from;
• the judgment roll, including the pleadings;
• the transcript of the proceedings, if any;
• any relevant exhibits, or copies of them; and
• any opinion or decision of the court below.

CPLR 5531 also requires a statement describing the action, the parties, and the course of the proceedings, which is filed with the record or appendix. The record must be settled or stipulated: under CPLR 5525(c), after the appellant serves the transcript, the respondent has 15 days to propose amendments or objections, and any dispute is settled by the judge who presided.

Method One: The Full Reproduced Record

Under 22 NYCRR 1250.5(a), the appellant may perfect on a full reproduced record containing everything CPLR 5526 requires. The entire settled record is reproduced in bound and digital volumes, consecutively paginated, and filed with the appellant's brief.

The full record is the default in most Appellate Division appeals and the safer course in fact-intensive cases. If the appeal challenges a verdict as against the weight of the evidence, or asks the court to exercise its own factual review power, the justices need the entire transcript in front of them. A full record eliminates any argument that the appellant hid unfavorable testimony.

The drawback is expense. A two-week trial can generate 2,500 pages of transcript and exhibits, and every page must be reproduced to the format standards of 22 NYCRR 1250.6 and 1250.7. For a discussion of what that reproduction typically runs, see our page on the cost of an appeal.

Method Two: The Appendix Method

CPLR 5528(a)(5) permits the appellant's brief to include an appendix containing only those portions of the record necessary to decide the questions raised. 22 NYCRR 1250.5(b) authorizes this method in the Appellate Division, subject to each Department's local rules.

What the Appendix Must Include

Under 22 NYCRR 1250.7(d), the appendix must contain, at a minimum:

• the CPLR 5531 statement;
• the notice of appeal or order granting leave to appeal;
• the judgment or order appealed from;
• the decision or opinion below;
• the relevant portions of the pleadings, and in a criminal case the indictment;
• the relevant excerpts of transcripts, exhibits, and other papers necessary to consider the questions involved, including material the respondent may rely on.

That last clause deserves emphasis. The appendix is not a highlight reel for the appellant. It must include material adverse to the appellant's position if that material bears on the issues. CPLR 5529(a) governs form: appendix pages are numbered separately and preceded by the letter "A," so citations in the brief read "A-142."

The Original Record Still Gets Filed

The appendix method does not make the underlying record optional. The appellant must still cause the complete settled record, including the full transcript, to be filed with or subpoenaed to the court under 22 NYCRR 1250.5(b) so the justices can consult anything the appendix omits. What the method saves is reproduction: one copy of the original record instead of multiple printed sets of thousands of pages.

Comparing the Two Methods

A third option exists in narrow circumstances: an agreed statement in lieu of record under CPLR 5527, in which the parties stipulate to the facts material to the appeal. It is rarely used because it requires cooperation between adversaries. Litigants granted poor person relief under CPLR 1101 and 1102 may also be permitted to proceed on the original record without reproduction.

A Worked Example of the Timeline

Suppose judgment is entered against your client in Supreme Court and the prevailing party serves the judgment with notice of entry on June 2. Under CPLR 5513(a), the notice of appeal is due 30 days later, on July 2 (35 days if service was by mail). You file the notice of appeal on June 20.

Under 22 NYCRR 1250.9(a), you must perfect the appeal, meaning file the record or appendix and your brief, within six months of the notice of appeal: here, by December 20. Inside that window, you must order the transcript, serve it on the respondent, allow the 15-day amendment period under CPLR 5525(c), resolve any settlement disputes before the trial judge, and then reproduce the record or prepare the appendix. On a 2,500-page trial record, transcript preparation alone can consume two months, which is why the choice between methods should be made early, not in month five. Our page on perfecting an appeal in the Appellate Division walks through these deadlines in detail.

The Risk of a Thin Appendix

The appendix method carries a specific hazard: if the appendix omits material necessary to review the issues, the Appellate Division may decline to reach those issues, affirm on the ground that meaningful review is impossible, or dismiss the appeal. The Departments have done all three.

The CPLR also builds in a financial penalty. Under CPLR 5528(e), if the respondent must file its own appendix to supply material the appellant improperly omitted, the court may direct that the cost of the respondent's appendix be paid by the appellant regardless of the outcome. A savings of a few thousand dollars in reproduction can turn into a larger bill plus a weakened appeal.

Two rules of thumb guide the decision. First, if any issue on appeal requires the court to weigh testimony, use the full record. Second, if the appeal turns on a discrete legal ruling, such as the grant of summary judgment on a documentary question or a statute of limitations dismissal, the appendix method can cut reproduction costs substantially without sacrificing review. Before either analysis matters, confirm that the ruling is appealable at all under CPLR 5701.

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