APPEAL FROM SMALL CLAIMS/
COMMERCIAL CLAIM / CIVIL COURT DECISION
sec. 1704 and 1911 UCCA; sec. 5515 CPLR, sec. 210.38 Uniform Rules
If either party to a small/commercial claims dispute or civil action believes that a City Court decision is legally incorrect, he/she may ask to have that determination reviewed by a judge of the Otsego County Court.
Before deciding to appeal the decision, there are certain matters that you should understand and consider before proceeding on an appeal:
- Taking an appeal will probably involve additional expense including, but not limited to, a $30
filing fee with the City Court at the time you file the Notice of Appeal and the cost to prepare
the verbatim transcripts of any court proceedings. - There are strict time limits for filing a Notice of Appeal and “perfecting” the appeal.
Generally you only have thirty (30) days to file a Notice of Appeal with the City Court. In a
small claims/commercial claims action, the Notice of Appeal must be filed no later than the
earliest of the following dates from entry of the judgment by the Clerk of the Court:
(1) thirty days after receipt in court of a copy of the Notice of Judgment
(2) thirty days after personal delivery of a copy of the Notice of Judgment by another party
to the action to the appealing party (or by the appealing party to another party), or
(3) thirty-five days after the mailing of a copy of the Notice of Judgment to the appealing
party by the clerk of the court or by another party to the action. Additionally, you will be
bound by time limits to “perfect” the appeal with the appellate court. - You may be entitled to proceed as a poor person and have the costs of the transcripts paid for
by the county (CPLR sec. 1102[2]). You will need to apply to the County Court for poor
person status pursuant to CPLR sec. 1101 and also file a copy of your request with the County
Attorney. If granted by the County Court, you will need to provide the City Court with the
Order of the County Court. - Otsego County Court has no authority to rehear the case, to retry your case, or to consider any
facts other than those presented at the hearing. A Judge of the County Court is permitted only
to review how the Judge in the City Court decided the matter; that is, whether the Judge in the
City Court correctly applied the law and whether, by his/her decision, “substantial justice”
(not complete justice or perfect justice) was done between the parties. This very limited scope
of review results in a reversal or modification of only those judgments that clearly deviate
from the substantive law, not those on which another court might simply have gone the other
way; - County Court can not review any evidence that was not presented to the lower court nor,
except in a very rare case, will the County Court interfere with the credibility assessments
made by the City Court. - If a default judgment was taken against you because you did not appear for the City Court
hearing, that judgment cannot be appealed. You must make a motion in City CourtFebruary 5, 2013e up to one (1) year from the entry of the default judgment to
make a motion to vacate a default judgment. However, the filing of such a motion does not
stay the judgment. To make such a motion, an affidavit under oath must be prepared that
states the reason why you failed to appear in Court on the scheduled date and clearly sets forth
the defense to the claim. The Affidavit should not indicate a future date to appear in Court;
the Court will decide the motion based on the written papers submitted. The accuracy of this
affidavit must be sworn to before a Notary Public and then provided to the other party. An
Affidavit of Service must be completed and filed with the Court to attest that the motion
affidavit was served on the other party. If the motion is denied, that denial can then be
appealed. - The pendency of an appeal does not prevent the prevailing party from taking steps to enforce
his/her judgment. You can seek a stay pending appeal which involves paying the amount of
the judgment to the City Court pending the determination of the appeal.
Should you wish to proceed with an appeal of the decision of the City Court:
- Within thirty (30) days from the date of the decision, file (by mail or in person) two
copies (original and copy) of a written Notice of Appeal (see attached form) with the
City Court that heard and decided the case. The Notice should contain the caption of the
case, the docket number associated with that case, and a statement that you (as the
“appellant”) intend to appeal the decision of the Court. You must also include your
address and the address of the opposing party.
You must arrange to have a copy of the Notice of Appeal delivered on the opposing
party and the other party’s attorney and then file an Affidavit of Service (see
instructions and Affidavit form attached) with the City Court. You must also file a
copy of the Notice of Appeal with the Otsego County Clerk.
There is also a $30 filing fee payable to the City Court where your case was heard.
Payment must be made by Certified Check, Money Order or Cash and is not refundable. - Since all proceedings in the Oneonta City Court are electronically recorded, you will
need to make a written request to the City Court for the transcript to be prepared. Your
written request must contain the date(s) of the trial and the transcription service that you
wish to use to prepare the transcript. You can obtain a list of available transcription
services from the City Court. The Court Clerk will send the audio tape to the
transcription service that you have selected.
It is your responsibility to pay for the cost of the transcript (unless you have been
granted poor person status by the County Court pursuant to CPLR sec. 1101). Two
copies will be prepared; one which will be filed with the Court and one for you, the
appellant.
You may wish to request a cost estimate of the transcript before ordering the transcript
(Note: this is only an estimate and the actual cost may be less or more than the
estimate). The reporter may require an advance deposit before starting the transcript
and will require payment of the balance before releasing the transcript. - After the City Court has received the original transcript of the trial, the City Court
record must be ‘settled’ on the record or upon stipulation of the parties. The settlement
of the record is a court procedure whereby the parties agree that the record which is
being submitted to the County Court is correct. Both parties will receive a date to appear
to settle the record. - Following settlement of the record, the City Court will file a Return (that is, the City
Court file including the transcript) with the County Clerk. The County Clerk will notify
the County Court that the Return has been filed. - At this point, the matter is now to be considered by the County Court. You will be
notified by the County Court to submit a written memorandum outlining the aspects or
your appeal/case which you believe were improperly decided by the City Court Judge.
Copies of any documents that you provide to the Court must always be provided to the
opposing party and an Affidavit of Service completed. Again, remember that the County
Court may not consider facts or evidence which were not part of the case heard in the
City Court. - If, after you have started an appeal, you change your mind and wish to discontinue or
withdraw the appeal, you must notify the City Court and County Court, in writing, of the
discontinuance. You should also notify the opposing party that you will not be
proceeding with the appeal. You will still be responsible for any costs associated with
the appeal including any portion of the transcript that has already been prepared. - After the appeal has been decided by the County Court, a copy of that decision will
be mailed to you at the most recent address on file with the County Court.
NOTE: YOU MAY VISIT THE SUPREME COURT LIBRARY LOCATED IN COOPERSTOWN
FOR LEGAL REFERENCES ON THE FILING OF A CIVIL APPEAL. COURT PERSONNEL
CANNOT PROVIDE LEGAL ADVICE.
