Article 55 Appeals Generally Flashcards
CPLR 5501
An appeal from a final judgment may bring up for review:
1. any charge to the jury to which the appellant objected
2. any remark made by the judge to which the appellant objected
3. any non-final judgment or order which necessarily affects the final judgment, provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken.
(a) 1 only
(b) 1 and 2 only
(c) 2 and 3 only
(d) l, 2 and 3
(e) 1 and 3 only.
Answer: (d)
CPLR 550l(a) indicates that choices (1), (2) and (3) are all correct.
CPLR 5501
Upon appeal, the Appellate Division reviews:
(a) questions of law, only
(b) questions of fact, only
(c) questions of law and fact
(d) neither questions of law nor fact.
Answer: (c)
CPLR 5501(c) provides that the Appellate Division shall review questions of law and fact. Contrast this with CPLR 5501(b) which provides that the Court of Appeals shall generally only review questions of law.
CPLR 5511
On an appeal the parties are designated as:
(a) plaintiff-defendant
(b) loser-winner
(c) appellant-respondent
(d) petitioner-respondent.
Answer: (c)
CPLR 5511 provides that an aggrieved party appealing a judgment or order is called an appellant and the adverse party is called the respondent. Thus, choice (c) is the answer.
CPLR 5513
An appeal as of right must be taken within _______ days after service of a copy of the judgment or order appealed from with written notice of its entry.
(a) ten
(b) twenty
(c) thirty
(d) forty.
Answer: (c)
CPLR 5513(a) provides that an appeal as of right must be taken within thirty days after service upon the appellant of a copy of the judgment or order with written notice of its entry.
CPLR 5514
If the attorney for an aggrieved party dies or becomes physically or mentally incapacitated before the expiration of the time limited for taking an appeal, the appeal may be taken:
(a) within sixty days from the date of death or commencement of the incapacity
(b) within sixty days from service of the judgment or order from which the appeal is taken
(c) within six months from service of the judgment or order from which the appeal is taken
(d) within three months from the date of death or commencement of the incapacity.
Answer: (a)
CPLR 5514 provides that if the attorney for an aggrieved party dies or becomes physically or mentally incapacitated before the expiration of the time limited for taking an appeal, the appeal may be taken within sixty days from the date of death or commencement of the incapacity. Thus, choice (a) is correct. All other choices are unsupported by the CPLR.
CPLR 5515
An appeal is taken by:
(a) merely serving a notice of appeal on the adverse party
(b) merely filing a notice of appeal in the office where the judgment or order is entered
(c) serving a notice of appeal on the adverse party and filing it in the office where the judgment or order is entered
(d) announcement in open court of an intention to appeal.
Answer: (c)
CPLR 5515 states that an appeal shall be taken by (i) serving on the adverse party a notice of appeal and (ii) filing it in the office where the judgment or order is entered. Thus, choice (c) is the answer.
CPLR 5516
A motion for permission to appeal shall be noticed to be heard at a motion day at least _______ days and not more than _______ days after notice of the motion is served, unless there is no motion day during that period, in which case at the first motion day thereafter.
(a) seven.…. ten
(b) eight.…. fifteen
(c) ten.…. twenty
(d) fifteen.…. thirty.
Answer: (b)
CPLR 5516 provides that such a motion shall be noticed to be heard at least eight days and not more than fifteen days after notice of the motion is served. Thus, choice (b) is correct.
CPLR 5519
Select the best answer.
Service upon the adverse party of a notice of appeal stays all proceedings to enforce the judgment appealed from pending the appeal where:
(a) the appellant is the State
(b) the respondent is the State
(c) the judgment directs the payment of a sum of money and an undertaking in that amount is given
(d) only (a) and (c) are correct
(e) (a), (b) and (c) are all correct.
Answer: (d)
CPLR 5519(a)(l) & (2) clearly indicate that choices (a) and (c) are correct.
Choice (b) is unsupported by the CPLR.
CPLR 5521
Preferences in the hearing of an appeal:
(a) are not permitted
(b) are within the discretion of the court from which the appeal is taken
(c) are within the discretion of the court to which the appeal is taken
(d) are permitted only in cases where the state is a party.
Answer: (c)
CPLR 5521 provides that preferences in the hearing of an appeal may be granted in the discretion of the court to which the appeal is taken. Thus, choice (c) is correct.
NOTE that in accordance with a CPLR amendment effective January 1, 1992, appeals from orders, judgments or decrees in certain proceedings brought under the family court act “shall be given preference” as indicated in subdivision (b), revised effective December 21, 2005.
CPLR 5522
A court to which an appeal is taken may:
(a) only reverse or affirm, but not modify, any judgment or order before it
(b) modify, reverse or affirm any judgment before it, only as to the appellant
(c) reverse or modify a judgment or order without stating the grounds of its decision
(d) modify any judgment or order before it, as to any party.
Answer: (d)
CPLR 5522(a) provides that a court to which an appeal is taken may reverse, affirm, or modify, wholly or in part, any judgment, or order before it, as to any party. Thus, choice (d) is correct, and choices (a) and (b) are incorrect. Additionally, the statute provides that a court reversing or modifying a judgment or order without opinion shall briefly state the grounds of its decision. Thus, choice (c) is incorrect.
CPLR 5524
When an appellate court determines an appeal any judgment directed by its order is entered by:
(a) the county clerk
(b) the clerk of the appellate court
(c) the clerk of the court to which remission of a copy of the order and the record on appeal is made
(d) any of the above.
Answer: (c)
CPLR 5524(b) provides that when an appellate court determines an appeal, any judgment directed by its order is entered by the clerk of the court to which remission of a copy of the order and the record on appeal is made (usually the court of original instance).
CPLR 5525
When an appellant serves his brief upon respondent he must also:
(a) serve a conformed copy of the transcript on respondent
(b) deposit a conformed copy of the transcript in the office of the clerk of the court of original instance
(c) serve a conformed copy of the transcript on respondent and deposit such a copy in the office of the clerk of the court of original instance
(d) serve a conformed copy of the transcript on respondent or deposit such a copy in the office of the clerk of the court of original instance.
Answer: (d)
CPLR 5525(c)(l) indicates that choice (d) is correct.
CPLR 5525
In appellate proceedings, to settle a transcript means:
(a) to pay the court reporter’s charge for the stenographic record
(b) to furnish respondent with a copy of the stenographic record
(c) to arrive at an accepted stenographic record of a proceeding, either by agreement of the parties or by judicial determination
(d) to propose that the proceeding be conducted again, and a new stenographic record made.
Answer: (c)
CPLR 5525(c) governs “settlement of the transcript” and refers to arriving at an agreed upon version of the stenographic record of a proceeding. Thus, choice (c) is correct. All other choices are unsupported by the CPLR.
CPLR 5526
The record on appeal contains which of the following:
1. the notice of appeal
2. the judgment roll
3. the corrected transcript of the proceedings
4. any relevant exhibits, or copies of them.
(a) 1, 2 and 3, only
(b) 1 and 2, only
(c) 2 and 3, only
(d) 1, 2 and 4, only
(e) 1, 2, 3 and 4.
Answer: (e)
CPLR 5526 states that the record on appeal from a final judgment shall consist of all the items referred to in this question plus any reviewable orders and any other opinions in the case. Thus, choice (e) is correct.
CPLR 5528
Select all correct answers.
Appellant’s brief must contain which of the following:
(a) a table of contents
(b) a concise statement of the questions involved
(c) a concise statement of the nature of the case
(d) the argument for the appellant, divided into points.
Answers: (a), (b), (c) and (d)
CPLR 5528(a) provides that the items listed in choices (a), (b), (c) and (d) must all be included in appellant’s brief.
