How Preparing a Record is Like Cutting an Onion: Ensuring the Completeness of a Record in Light of a 2014 Amendment to CPLR 2214(c)

Bill White, Esq. Preparing a record on appeal is somewhat like cutting an onion. Yes, both activities may result in tears and injured fingers, but more to the point, both are exercises in exposing layers. As with a cut onion, an opened record reveals itself layer-by-layer, from the notice of appeal to the very last exhibit, and contains all papers submitted to the lower court in connection with the order being appealed.

But what if there is more than one onion? What if the record includes material apart from the papers actually submitted for the particular order on appeal? After a 2014 amendment to section 2214(c) of the Civil Practice Law and Rules, this is a possibility and a trap for the unwary. Now, parties filing motion papers in e-file cases may incorporate by reference previously e-filed documents, as opposed to filing those documents anew. For example, a motion to renew and reargue requires parties to resubmit the underlying motion. Under the amendment that requirement is fulfilled simply by submitting an affidavit that refers to the electronic docket numbers of the previously-filed papers, thereby avoiding the need to actually refile the same papers twice.

While this is a sensible and substantial saving of paper and storage space, it is a potential pitfall in the preparation of a record on appeal, particularly one that contains a multitude of documents. Before the amendment, parties could feel secure they marshalled documents for a record by pulling particular folders from their physical file or by downloading e-filed documents marked with the appropriate motion sequence number. Now, however, parties should examine the papers in a record for reference to previously e-filed documents. It is easy to see that not doing so could cause the inadvertent omission of substantial portions of a record.

When navigating this pitfall and others that arise when preparing a record, it helps to have one of Counsel Press’ experienced Appellate Counsel working by your side. With our assistance, preparing a record may still compare to slicing an onion, but only insofar as seeing each layer of a complete record laid bare. No more will anxiety, tears or lacerated fingers be a part of the process when you have a trusted and knowledgeable partner to guide you through your next appeal.

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