Appeals to the New York State Appellate Division: Settling the Transcript Does Not Have to Be an Unsettling Experience

Before including a transcript in a record on appeal (or appendix) and asking the Appellate Division to rely upon it, practitioners must first determine whether the transcript needs to be settled, and, if so, take the necessary steps to do so. Section 5525 of the CPLR governs transcripts and the settlement thereof.1

When does a transcript need to be settled?
Not every transcript needs to be settled to be included in a record on appeal. Only transcripts of “proceedings,” i.e., those that contain sworn witness testimony and/or are the recitation of the court’s order (without the order being reduced to writing), need to be settled. Thus, hearing transcripts that involve only attorney argument and colloquy with the judge or hearing officer need not be settled. Additionally, transcripts which were annexed to other documents as exhibits in the trial court do not need to be settled before they become part of the record on appeal.

The 15-day notice
Once a transcript has been ordered and received from a stenographer or court reporter, the appellant is required to serve a copy of the transcript, together with any proposed changes, on the respondent.2 Accompanying the copy of the transcript should be what is termed “the 15-day notice.” Such a notice advises the respondent that he or she has 15 days to make and serve proposed amendments or objections to the transcript, or the transcript will be deemed settled. A sample of such notice is available here.

The stipulation
Usually, when serving the transcript and 15-day notice, it is best to include a cover letter and proposed stipulation to settle the transcript. Essentially, the stipulation agrees that, subject to whatever amendments have been proposed and agreed to by the parties, the transcript may be deemed correct and settled. A sample of such a stipulation is available here.

The affirmation
If the respondent’s attorney does not respond to the 15-day notice or does not propose any amendments during the 15-day period, the appellant’s counsel may execute an Affirmation of Compliance to settle the transcript. This affirmation explains that the attorney complied with the requirement of a 15-day notice pursuant to CPLR § 5525 and no proposed amendments have been provided by the respondent’s counsel during the appropriate time. Upon execution of this affirmation, the transcript is deemed settled. A sample of such an affirmation is available here.

Be sure to note that only a stipulation or an Affirmation of Compliance is required to settle a transcript, but not both.

If the parties still can’t agree…
Section 5525 of the CPLR provides a procedure for settlement of the transcript in cases where the appellant’s attorney and respondent’s attorney cannot agree to the proposed amendments after service of a 15-day notice. In such cases, the appellant shall, with at least four days’ notice to the adverse party, submit the transcript, proposed amendments and objections to the judge or referee before whom the proceedings were held, and the judge or referee shall settle the transcript.

Keep in mind…
Settling transcripts takes time and some courts will not accept a record on appeal which includes an unsettled transcript. When planning to perfect an appeal, make sure you serve the 15-day notice at least 15 days sooner than you intend to perfect your appeal. If a transcript is not timely settled, it may be necessary to make a motion to enlarge a party’s time to perfect the appeal.

Additionally, if any amendments to the transcript are agreed to during the settlement process, be sure to make the physical changes to the transcript prior to including it in your record on appeal. __________________________________________________
1Transcripts must be settled for appeals in the First, Second and Third Departments of the Appellate Division. The Fourth Department does not require settlement of the transcript. Instead, a stipulation as to the authenticity of the entire record is required in that court.
2CPLR § 5525 requires the appellant to perform this step within 15 days of receiving the transcript. However, for practical purposes, this provision is not routinely enforced, as long as the remaining steps are fully complied with.

Tagged: Appellate Practice, Appellate Procedure, New York State Appellate Division First Department, New York State Appellate Division Fourth Department, New York State Appellate Division Third Department, New York State Appellate Division Second Department


 
 

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