Commencing an Appeal: Notice of Appeal 

Claire V. Merkine, Esq.

The Legal Aid society, Juvenile Rights Practice

New York. NY

 

I.                  Orders Appealed From

Ø                                        In Article 10 proceedings, all orders are appealable as of right (Fam. Ct. Act § 1112). Thus, no need to ask for leave to appeal from interim orders)

Ø                                        In all other proceedings (i.e. delinquency, custody or TPRs) only order of disposition appealable as of right.

²                Need to request leave to appeal from interim orders ( at the discretion of the AD)

II.               Time for Filing: 

Ø                                        Fam. Ct. Act §1113 -- appeal must be taken no later than:

²                30 days after the service by a party or the law guardian upon the appellant of any order from which the appeal is taken (if service by mail, then 35 days from date of service); or

²                30 from receipt of the order by the appellant in court;

²                35 days from the mailing of the order to the appellant by the clerk of the court, whichever is earliest

Ø                                        If your client has not received the order as specified in § 1113, the thirty-day time limit will not begin to run.  Therefore, if more than thirty days have passed and you did not file a notice of appeal, but your client has never received the order, you can serve notice of entry and then file the notice. 

Ø                                        If the Family Court issued order in your favor, it is important to serve notice of entry on the other parties and the law guardian in order for that 30-day limit to start running. 

III.           Notice of Appeal: Form

Ø                                        Must designate (C.P.L.R. § 5516):

²                The party taking the appeal 

²                The judgment or order (or specific part thereof) appealed from

²                Court to which appeal is taken

Ø                                        Check Court rules:

²                In AD2, need to attach order, any decision, and need to complete and file a RADI (Request for Appellate Division Intervention) (Can download from AD website) 

Ø                                        No need to file pre-argument statement!

IV.           Filing and Service of Notice of Appeal

Ø                                        Fam Ct. Act . § 1115 (also check court rules)

Ø                                        Original + two copies of notice of appeal and proof of service on other parties is filed with the Clerk of the Family Court in the county from which the appeal is being taken.  (The clerk sends a copy to the AD2)

Ø                                        Service of the notice of appeal must be upon any adverse party. 

V.              Defective notices of appeal .

Ø                                        CPLR §5520

Ø                                        If an appeal is timely served or filed but the appellant neglects to do some other necessary act (serve another party, etc.), the court to or from which the appeal is taken may grant an extension of time to cure the omission. 

Ø                                        If the notice is premature or defective in form (inaccurate description of order, etc.), the appellate court “when the interests of justice so demand, may treat such a notice as valid.” 

VI.           Duties of Counsel

Ø                                        Fam. Ct. Act § 1121

Ø                                        Counsel must advise client in writing of:

²                Right to appeal

²                Time limitations involved in appeal and manner of instituting an appeal and obtaining a transcript of testimony,

²                Right to apply for poor person’s relief,

²                Procedures for instituting an appeal, possible issues to be raised on appeal, and nature and possible consequences of appellate process.

Ø                                        Counsel must file notice of appeal if client desires. 

Ø                                        In applying for poor person relief and/or assignment of counsel on appeal, counsel should file a certification of continued indigency and continued eligibility for appointment of counsel.

 

 

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Last updated January 12, 2010

 

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