The Appellate Division, Second Department, Dismisses Appeal Because Record on Appeal Failed to Include Copies of Necessary Documents and, Instead, Relied on References to E-filed Documents as Permitted in Supreme Court Practice Pursuant to CPLR 2214(c)
Print Article- Posted on: May 2 2025
The tedious task of compiling hard copies of exhibits to annex to motion papers in supreme court litigation practice was ameliorated in 2014 when the CPLR was amended to permit litigants, in e-filed cases, to simply refer in their briefs and affirmations to docket numbers on the e-filing system. Thus, CPLR 2214(c) provides:
Each party shall furnish to the court all papers served by that party. The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved. Except when the rules of the court provide otherwise, in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system. … Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct.
However, litigants should not be so quick to rely on CPLR 2214(c) in appellate practice. Among other things, CPLR 5526 requires that the “record on appeal from an interlocutory judgment or any order shall consist of the notice of appeal, the judgment or order appealed from, the transcript, if any, the papers and other exhibits upon which the judgment or order was founded and any opinions in the case.” See also CPLR 5528.
“‘Pursuant to CPLR 5526 it is the obligation of the appellant to assemble a proper record on appeal, and the record must contain all of the relevant papers that were before the Supreme Court.’” Fitzpatrick v. CSS Industries, Inc., 236 A.D.3d 863 (2nd Dep’t 2025) (quoting Fitzpatrick v. Affairs & Banquets Floral Servs., Inc., 227 A.D.3d 954 (2nd Dep’t 2024). When necessary papers are omitted from an appellate record, an appeal will be dismissed because such omissions will “render[] meaningful review of the [lower] court’s order virtually impossible.” Fitzpatrick, 236 A.D.3d at 863. That appellate records must be reproduced in hard copy form is also made plain by the New York Codes, Rules and Regulations (“NYCRR”). See 22 NYCRR §§ 1250.5, 1250.6, 1250.7.
On April 30, 2025, the Appellate Division, Second Department, in Sterling Trust Limited v. Stern, dismissed an appeal because the appellant, relying on references to e-filed documents, neglected to include in the record on appeal, copies of all documents necessary for the Appellate Division to consider the appeal. The Court, in rejecting the incomplete record, stated:
Here, the plaintiff properly placed the pleadings and the underlying summary judgment motion papers before the Supreme Court in this electronically filed action by referencing them in the plaintiff’s attorney affirmation in support of the motion, in effect, for leave to renew and giving the docket numbers on the e-filing system (see CPLR 2214[c]; Nationstar Mtge., LLC v Bailey, 175 AD3d 697, 698). However, the plaintiff failed to reproduce the pleadings and underlying motion papers in the record on appeal (see 22 NYCRR 1250.5[b]; 1250.6[b]; 1250.7[a]). Without those papers, this Court cannot meaningfully review the Supreme Court’s order denying the plaintiff’s motion, in effect, for leave to renew its opposition to the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against her (see Fitzpatrick v Affairs & Banquets Floral Servs., Inc., 227 AD3d at 955; Eleven Stars, LLC v Central Baptist Church, 206 AD3d at 885). Accordingly, the appeal must be dismissed. [Hyperlinks added.]
A review of the briefing, which was available on the NYSCEF system, reveals that this issue was not argued by the parties. Accordingly, it appears that the dismissal was made sua sponte by the Court.
TAKEAWAY
The current rules generally require that appellate records be reproduced on paper and submitted to the Court in the required form, and reliance on references to e-filed documents is misplaced and could result in the dismissal of an appeal.
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
