You may visit the Supreme Court Library located in your county, if you have one, for legal references on the filing of a civil appeal.
Court personnel cannot provide legal advice!
Small/Commercial Claims; Summary Proceeding; Civil Court Decision (Section 1704 and 1911 UCCA; Section 5515 CPLR; Section 210.38 Uniform Rules)
If any party to a small/commercial claim; summary proceeding; civil action dispute believes that a City Court decision is legally incorrect; he/she may ask to have that determination reviewed by a judge of the County Court.
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 (County Court) with your written arguments only after the transcript of the court proceedings has been prepared and the City Court has filed the Return on Appeal (City Court file) with the Appellate Court.
Filing Fee: $30Before considering an appeal to the decision, there are certain matters which you should understand and consider before proceeding on an Appeal:
- You may incur additional expenses which will include, but not be limited to a filing fee with the City Court at the time of your 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.
- You may also be entitled to proceed as a poor person and have the costs of the transcripts paid for by the County and/or for assignment of an attorney for the Appeal. You will need to apply to the County Court for poor person status pursuant to CPLR Section 1101. If granted by the County Court, you will need to supply the City Court with the Order from the County Court.
- To waive the filing fee, you will need to file a poor person application with the City Court.
There are strict time limits for filing a Notice of Appeal and "perfecting" the Appeal. Depending upon 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/commercial claims action, the earlier of the following starts the time to file a Notice of Appeal.
1. 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 parties or
2. 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 parties.
- In other civil actions the time to file a Notice of Appeal with the City Court is generally 30 days from the date of entry of the judgment. Additionally, you will be bound by time limits to "perfect" your Appeal with the County Court.
Should you wish to proceed with an Appeal of the decision of the City Court, you must adhere to the following procedures:
- Within thirty (30) days from the date of the decision, file (by mail or in person) an original written Notice of Appeal with the City Court that heard and decided the case. The Notice should contain the Caption of the Case, the Index 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 upon the opposing party and the other party's attorney before filing the Notice of Appeal with the Court. You must file the Notice of Appeal (original and copy) and an Affidavit of Service with the City Court along with the $30.00 filing fee payable to the court in which you are filing. This fee can be paid by certified check, money order, or cash and it is not refundable.
County Court has no authority to rehear your 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 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 cannot review any evidence that was not presented to the local court, nor except in a very rare case, will the County Court interfere with the credibility assessments made by the City Court.
Vacating a Judgment
If a Default Judgment was taken against you because you failed to appear for the City Court hearing, that Judgment cannot be appealed. You must make a Motion in City Court to vacate the Default 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 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 by mail 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.
Stay of Judgment
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.
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. You must also file the Notice of Appeal with the County Court Clerk.
If there was a court reporter at 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 in the City Court and the reporter is required to file an original Transcript with the City Court. If you wish to obtain a copy of the Transcript for your records, you must make those arrangements with the reporter.
The cost of the preparation of the Transcript (both the court's original and any copy for your record) is solely your responsibility (unless you have been granted poor person status by the County Court pursuant to CPLR 1101). You must request a cost estimate of the Transcript before ordering the Transcript. The reporter may require an advance deposit before starting the Transcript and will require payment of the balance before releasing the Transcript.
Note: This is only an estimate and the actual cost may be less or more than the estimate.
If there was no court reporter at the trial:
The trial may have been taped on an audio cassette. If this is the case, 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. 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 two Transcripts (unless you have been granted poor person status by the County Court pursuant to CPLR 1101). You must file the original Transcript with the Court and keep one for yourself.
Note: If you do not wish to have a Transcript provided to you, you must notify the transcription service that only one Transcript is to be prepared and it must be sent to the Court. You should be aware that the Court will not provide you with a copy of the Transcript.
You must request a cost estimate of the Transcript before ordering the Transcript. The reporter may require an advance deposit before starting the Transcript and will require payment of the balance before releasing the Transcript.Note: This is only an estimate and the actual cost may be less or more than the estimate.
- After the City Court has received the original Transcript of the trial, the City Court will file a Return on Appeal (that is, the City Court file including the transcript) with the County Court Clerk.
- The matter is now ready to be considered by the County Court. If you wish to file additional documentation or written arguments in support of the Appeal with the County Court, you should contact the County Court Clerk's Office for this procedure. Any documents you provide to the Court should be provided to the opposing party.
- If you change your mind after starting an Appeal or wish to withdraw or discontinue the Appeal, you must notify the City Court and the 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 also be responsible for any costs associated with the appeal, including any portion of the Transcript which has already been prepared.
- After the Appeal has been decided by the County Court Judge, a copy of the decision will be mailed to you at the most recent address on file with the County Court.