Civil Court
Appealing a Small Claim / Commercial Claim / Summary Proceeding (Eviction) / Civil Court Decision
(sec. 1704 and 1911 UCCA; sec. 5515 CPLR, sec. 210.38 Uniform Rules)
Notice of Appeal | Affidavit of Service | Transcript Request Form
Any party to a civil action / eviction / small claim/commercial claim that believes a City Court decision is legally incorrect may ask to have that determination reviewed by a judge of the Appellate (County) Court following the filing of a Notice of Appeal with the Court (see below steps). However, it is advisable to read the following in its entirety before proceeding an appeal so that you are aware of the process and requirements to do so.
Please know County Court has no authority to re-hear your case, to re-try 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. As such, a reversal or modification of the original Decision/Judgment only applies to those cases where it deviated from the substantive law, not those on which another court might simply have gone the other way.
The Appellate Court cannot review any evidence that was not originally presented at your hearing or trial. Additionally, the Appellate Court does not typically interfere with the credibility assessments made by the City Court Judge when your case was heard.
Taking an appeal will involve additional expense including, but not limited to, a filing fee of $30.00 with the City Court at the time you file your Notice of Appeal. Other expenses may include the cost of preparing the Transcript of the trial or hearing and, if you choose, the cost of hiring an attorney to represent you on the appeal.
For persons experiencing financial hardship, please know you may be entitled to have the costs of the transcripts paid for by the Court and/or for assignment of an attorney for the appeal at no cost to you. To apply for a Fee Waiver, ask the clerk to provide you with the information and application, or you may visit https://www.nycourts.gov/legacyPDFs/courts/6jd/forms/SRForms/ifp_howto.pdf. Once you have completed the Fee Waiver application, you will need to file it with the County Court for their review and approval/denial.
***Please note that your request for a Fee Waiver does not change the thirty (30) day time limit to file the Notice of Appeal with the Court.***
If a default judgment was entered against you because you failed to appear for the City Court hearing, the judgment cannot be appealed.
You must make a motion in City Court to vacate the default. 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 your defense to the claim. The accuracy of this affidavit must be sworn to before a Notary Public and then provided to the other party. An Affidavit of Service will need to be completed and filed with the Court to attest that the motion was served on the other side. If the motion is denied, that denial can then be appealed.
Collecting on a judgment if an appeal is pending
A pending appeal does not prevent the prevailing party from taking steps to enforce the judgment. You can seek a stay of the judgment pending appeal which involves filing an undertaking (paying the amount of the judgment) with the City Court pending the determination of the appeal.
Notice of Appeal
A Notice of Appeal is merely a written statement to the Court indicating your intention to proceed with an appeal. The filing of the Notice of Appeal with the City Court is the first step, but is not, by any means, the appeal itself. You will have an opportunity to provide the Appellate Court with your written arguments only after the transcript of the court proceedings have been prepared and the City Court has filed the Return on Appeal (the City Court file) with the Appellate Court. The specific procedures for proceeding with an appeal are listed below.
There are strict time limits for filing a Notice of Appeal and "perfecting" the appeal. Depending on the method of service of the Notice of Judgment on the parties you have either thirty (30) days or thirty-five (35) days from the date of entry of the judgment to file a Notice of Appeal with the City Court. In a Small Claims/Commercial Claims action, the earlier of the following starts the time to file a Notice of Appeal: 1) Thirty (30) days if the Court serves the Notice of Judgment on the parties in court or if one of the parties personally serves the Notice of Judgment on the other party(ies) or 2) Thirty-five (35) days if the Court mails the Notice of Judgment to the parties or if one of the parties mails the Notice of Judgment by mail to the other party(ies). In other civil actions (not small claims/commercial claims), the time to file a Notice of Appeal with the City Court is generally thirty (30) days from the date of entry of the judgment Additionally, you will be bound by time limits to "perfect" your appeal with the appellate court.
Steps For Filing An Appeal
Should you wish to proceed with an appeal of the decision of the City Court, you must follow the following procedures:
1. Within thirty (30) days from the date of the decision, you will need to prepare a Notice of Appeal and arrange to have a copy of it served on the opposing party and the other party’s attorney (if applicable) before filing the Notice of Appeal with the Court. The Notice of Appeal should contain the caption of the case, the index number associated with that case, and must also include your address and the opposing party’s address.
2. Following service of the Notice of Appeal, you must file two copies (original and a copy) of the written Notice of Appeal with the City Court that heard and decided the case. Along with it, you must also file a notarized Affidavit of Service with the Court showing how, when and to whom the Notice of Appeal was served.
***Note: The Notice of Appeal cannot be served by a party to the action; service must be made by a non-party who is 18 years of age or older (CPLR 2103[a]). In the event the opposing party is represented by an attorney, the Notice of Appeal must be served upon the opposing party AND the attorney for the opposing party.***
3. If there was a Jury Trial held (Court Reporter present): If a Court Reporter was present for the trial, you must contact that reporter and request a transcript of the trial. You must advise the Court Reporter that there is an appeal pending, and the reporter is then required to provide you with an estimate of the cost of two (2) copies of the transcripts; one for you and one for the Appellate Court.
Please know the cost of the transcript is solely your responsibility and will require you to correspond and make payment arrangements with the court reporter directly.
If there was a Non-Jury Trial or Hearing (no Court Reporter): If there was no court reporter, you will need to secure a UCS certified Transcriptionist to have the trial transcribed from the electronic recording. To obtain a listing of available Transcriptionists, you may request a copy from the court clerk or find the listing on the court’s website located at https://www.nycourts.gov/LegacyPDFS/howdoi/vendor-list.pdf. After you have secured a Transcriptionist and agreed to their payment and time constraints, you will need to complete the Transcript Request Form listing the Transcriptionist of your choosing for the Court to send the audio directly to them. (Please note audio cannot be sent to any parties other than UCS certified Transcriptionists).
Please know the cost of the transcript is solely your responsibility and will require you to correspond and make payment arrangements with the Transcriptionist directly. This will include two (2) copies of the transcripts; one for you and one for the Appellate Court. The Transcriptionist may require an advance deposit before starting the Transcript and will require payment of the balance before releasing the transcript.
***Note: If you have been granted a Fee Waiver by the County Court, you must file the Order of the County Court with the City Court to avoid the cost of the Transcript.***
4. After the City Court has received the Transcript(s), you will need to “settle the minutes” and you will receive a letter from the City Court in this regard.
5. Once the minutes are settled, the City Court will file a "Return of Appeal" with the Appellate Court which includes the case file contents along with the certified Transcript of your case.
6. At that point, the Appeal will then be considered by the Appellate Court. If you wish to file additional documentation with the Appellate Court, you would need to contact the County Court Clerk's office on the procedure for submitting additional documents. Copies of any documents that you provide to the Court should always be provided to the prosecuting attorney.
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 in writing that you will not be proceeding with the appeal. This notice should also be sent to the prosecuting attorney. Of course, you will still be responsible for any costs associated with the appeal including the Transcript that was ordered.
7. After the appeal has been decided by the Appellate Court, a copy of that Decision will be mailed to you at the most recent address on file with the Court.
You may visit the Law Library located in the Hazlett Building, 203-205 Lake Street,1st Floor, Elmira, NY for additional legal references on the filing of an appeal. More information can be found at: https://ww2.nycourts.gov/LIBRARY/6JD/chemung/index.shtml. Please be advised court personnel cannot provide legal advice.