Filing an appeal is the process by which a party can request that a higher Court review the decision of the trial Court and change the decision. In New York, a party can appeal almost any final or interlocutory decision (interlocutory means during the litigation – interlocutory decisions include decisions issued by the Court as a decision on a motion filed by either party) of a trial court.
In New York, there are several trial Courts. The trial Court that hears matrimonial matters is the Supreme Court in your county. The Family Court in your county is also a trial Court. If a trial Court decides an issue and issues a decision, either party may have the right to appeal the Court’s decision. A party may do so based on the Court’s interpretation of the facts of the case or based on the Court’s interpretation of the law. Perhaps the Court did not understand the facts of the case or placed too much emphasis on facts that should not have been controlling. Perhaps the Court misinterpreted the law or applied the law incorrectly to the facts of your case. If you believe the Court has made an error, you may want to appeal the Court’s decision.
An appeal taken from a decision of the Supreme Court or Family Court will be heard by the Supreme Court, Appellate Division. The Appellate Division is divided into four Judicial Departments. The First Department is located in New York, New York. The Second Department is in Brooklyn, New York. The Third Department is located in Albany, New York. The Fourth Department is located in Rochester, New York.
The Appellate Division Judicial Department that will hear your appeal depends on the location of the Court from which the decision you are appealing originated.
The First Department hears appeals from decisions of trial Courts located in Bronx County and New York County.
The Second Department hears appeals from decisions of trial Courts located in Dutchess, Kings, Nassau, Orange, Putnam, Queens, Richmond, Rockland, Suffolk and Westchester counties.
The Third Department hears appeals from decisions of trial Courts located in Albany, Broome, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Madison, Montgomery, Otsego, Rensselaer, St. Lawrence, Saratoga, Schenectady, Schoharie, Schuyler, Sullivan, Tioga, Tompkins, Ulster, Warren, and Washington counties.
The Fourth Department hears appeals from decisions of trial Courts located in Allegany, Cattaraugus, Cayuga, Chautauqua, Erie, Genesee, Herkimer, Jefferson, Lewis, Livingston, Monroe, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Seneca, Steuben, Wayne, Wyoming and Yates counties.
An appeal taken from a decision of the Supreme Court, Appellate Division will be heard by the New York Court of Appeals. In general, the New York Court of Appeals only considers appeals based on questions of law, not appeals based on questions of fact, whereas the Appellate Division Judicial Departments consider appeals based on questions of law and fact.
Our attorneys can review your case and review the adverse decision to help you determine whether you have grounds for an appeal and whether a legal argument can be made in support of your appeal.
Once you have decided that you want to appeal a decision from a New York trial Court, you must file a timely Notice of Appeal with the Appellate Division. The time limits to file your Notice of Appeal depend on the Court that issued the decision and the manner in which you were served with the decision; however, the general time frame is 30 days of your receipt of the decision.
If you have received an unfavorable decision and believe that you have a factual or legal basis for appeal, contact a Westchester Matrimonial attorney as soon as possible so that we may review your case and ensure that your Notice of Appeal is filed on time. If you do not file a timely Notice of Appeal, you could lose your right to appeal.
After you file a notice of appeal, you must “perfect” your appeal. Only after you have perfected your appeal will your appeal be added to the Court’s calendar. If you do not perfect your appeal on time, your appeal will be dismissed. The time frame to perfect your appeal depends on which Appellate Division Judicial Department is hearing your appeal.
In the First Department, you have 9 months from the time you file your notice of appeal to perfect your appeal. In the Second Department, you have 6 months from the time you file your notice of appeal to perfect your appeal. In the Third Department, you have 9 months from the time you file your notice of appeal to perfect your appeal. In the Fourth Department, you have 9 months from the time you file your notice of appeal to perfect your appeal.
There are several ways to perfect your appeal under NY Law, all of which Westchester Matrimonial attorneys are familiar. Perfecting the appeal involves (among various other tasks) review of the trial Court transcripts and filing and serving your appellate brief. Your appellate brief will set out the facts and law for the Court and tell the Court why it should modify the decision of the trial Court.
After you perfect your appeal and file and serve your appellate brief, the other party will have the opportunity to file a brief in support of their position and in opposition to your brief. Once the Court has received briefs from all parties, the Court will schedule your appeal to be decided. The Appellate Division has a heavy caseload, so receiving a decision on your appeal may take some time.
The appeals process can be a confusing and potentially stressful process, but you don’t have to go it alone. Our experienced attorneys will guide you throughout the appeals process to ensure that the deadlines for your appeal are met and that all legal arguments are advanced on your behalf in your appellate brief. We work hard to advance our client’s rights both at the trial Court and appellate levels.
Contact us today to discuss the possibility of appeal in your case.