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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: June 6, 2015

Second Department Declines to Hear Appeal Because of Faulty Record

On May 27, 2015, the Second Department issued a decision in Zutrau v. ICE Sys., Inc., 2015 NY Slip Op. 04479, dismissing an appeal because of deficiencies in the record.

In Zutrau, the plaintiff appealed a judgment rendered after a jury trial. The Second Department dismissed her appeal, explaining:

An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal. The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent. Here, the plaintiff omitted material excerpts from the transcripts of trial testimony and critical exhibits she relies on in seeking review of the dismissal of her disability discrimination cause of action. These omissions inhibit this Court’s ability to render an informed decision on the merits of the appeal. Accordingly, the appeal from so much of the judgment as is in favor of the defendants and against the plaintiff, in effect, dismissing the second cause of action must be dismissed.

(Internal quotations and citations omitted). Perfecting an appeal can be expensive. But not, as the plaintiff here found, as expensive as getting your appeal dismissed.

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