Second Department Appellate Division: If you Need to Take an Appeal, Submit an Adequate Appellate Record or You Will Lose

Matrimonial trials are devastatingly expensive.  Appeals, when necessary, add even more insult to that financial injury.  Yet, if things do not go your way at trial, you may have no choice other than to seek appellate review. At that juncture, there is (for obvious reasons) a desire on the part of many litigants to proceed as cost-effectively as possible.  Having already spent tens of thousands of dollars (and, in many instances, hundreds of thousands) on attorneys’ fees and forensic experts, litigants are often shell-shocked by their financial investment in the litigation by the time they have reached the end of a trial.

In New York, it is not necessary to reprint the entire trial record.  Appellants are permitted to submit only those documents and/or portions of transcripts that are necessary for the appellate panel to consider the issues on appeal.  Understandably, many appellants leave out documents that they and their attorneys deem to be irrelevant to the specific issues for which they are seeking appellate review.  While this practice is acceptable, and even advisable (you do not want to bog down a judge with extraneous materials), it can backfire if you leave out a document that is relevant to the issue at hand.

In a decision issued by the Second Department Appellate Division on December 3, 2014, in the case Taylor v. Taylor (Case No. 2013-02061), the Appellate Division denied the husband’s appeal because it deemed the appellate record insufficient to decide the issue in contention.  In the Taylor case, the husband contended that the trial court erroneously awarded the wife 100% interest in a Florida condominium based on the wife’s contention that the condominium was purchased from funds gifted to her by members of her family.  According to the Appellate Division, the husband neglected to provide the Appellate Division with copies of documents that the wife had submitted to the trial court relating to the purchase of the condominium.  The Appellate Division ruled that this omission precluded the court “from rendering an informed decision on the merits of the issue” as to whether the wife had sustained her burden in establishing that the condominium was separate property.

Obviously, they husband may have strategically withheld the documents from the appellate court because the documents may, indeed, have shown that the trial court’s determination was correct.  However, if the documents did not sufficiently establish the separate property status of the condominium, the husband has paid dearly for his failure to submit an adequate appellate record.

The husband was represented by Gerard A. Imperato, Esq. of Brooklyn.  The wife was represented by Eric M. Gansberg of Staten Island.

Share This:

Monthly Archives