Appeals in General

In New York, there are two levels of Appellate Courts.  If you lose your case at the trial level, your case may first be reviewed by the intermediate Appellate Division known as the First, Second, Third or Fourth Departments.  There are five judges of each Appellate Division on the Court’s panel that will hear your appeal.  This Court has the authority to reverse the decision of the lower trial level court as a matter of law or in the interest of justice.  It also has the authority to send the case back to the trial court for further proceedings.  In order to start an appeal, the “appellant” – the party appealing the trial level court’s decision – must file a notice of appeal within 30 days of the decision being appealed.

It is important to note that Appellate Courts do not retry cases or hear new evidence. Appellate Courts review the happenings at the trial.  Proper procedures must be followed and the proper law applied.  Mistakes do happen, but because of the limited nature of this review, the issues that an appellate attorney brings to the Court’s attention on appeal are typically very different than those issues raised during a trial.  It is also important to note that, even though mistakes do happen, not all mistakes are serious enough to cause a reversal of a trial level decision and/or verdict.  The error that occurred must have been prejudicial to the appellant.

The second step in appealing a trial court’s decision is compiling all the documents from the trial court including transcripts of all the proceedings and evidence admitted.  This is known as the ‘record on appeal’ and is the source of the appellate attorney’s review of the issues.  Appellate cases generally involve three written papers known as legal ‘briefs’.  First, the appellant files an opening brief with the intermediate appellate court.  This brief explains the facts and procedural history of the case and then explains how the trial court erred and why the Appellate Court should reverse the ruling.  The opposing party – known as “appellee” or “respondent” – then files a responsive brief with the Appellate Court.  Similar to the opening brief, this response also explains the factual and procedural history.  It is then followed by argument that the trial court was correct and the ruling should not be reversed.  The appellant gets the last word in a reply brief to the response brief.  The reply argues against the claims made in the response brief, but the appellant is not permitted to introduce any new legal arguments in the reply brief.  It is also optional.

After the briefs are filed, the judges hear oral argument, if requested.  Not all cases require oral argument.  The Appellate panel generally issues a written decision and the reasoning behind it.  The written decision may be published in official reports and become binding authority over future cases.  The timing of this written opinion varies considerably among different courts.

An intermediate Appellate Court’s decision also may be appealed to New York State’s Court of last resort by the losing party, the New York State Court of Appeals.  The Court of Appeals is not required to hear every case and may choose which matters to decide.  When appealing a case to this Court, a motion must be filed seeking leave (which is ‘permission’) to appeal the case.

Elniski Law, P.C. is well qualified to offer experienced analysis of the merits of a potential appeal. Interested parties and trial attorneys alike are encouraged to contact this office.

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