{Read in 7 Minutes} As a Trust and Estates attorney, I often litigate in the Surrogate’s Court. While not every matter is litigated, oftentimes disputes arise. For example, maybe there will be a Will Contest that will result in a motion for Summary Judgment, deciding against one party or another. Or perhaps even a Summary Judgment, or perhaps there will even be a jury trial that will result in a verdict for one side or another. This can happen in any variety of proceedings — Accounting proceedings, proceedings to determine spousal rights, applications to remove the Executor, etc.
Big surprise, not everyone is always pleased with the outcome of a litigated Court matter. In general, when parties litigate, one side wins and one side loses. So, you’ll have one very happy party and one party… not so much. As I’ve mentioned in a previous article, this is one of the reasons why parties should consider settling disputes amongst themselves and craft their own remedies. However, if they don’t do that and the Court makes a decision finding in one party’s favor at the expense of the other, it is always worthwhile to discuss with your attorney whether or not you wish to file an appeal.
If you wish to file an appeal, you are asking an appellate Court to review the actions of the Surrogate’s Court and determine whether or not the Court made any mistakes in reaching what that party thinks is an undesirable result.
In general, appellate Courts will only consider questions of law or issues of law, not issues that affect. What does this mean? This means if the finder affects (the jury, in some cases, the judge themselves and others) reaches a conclusion, the appellate Court generally won’t upset that. They offer great deference to the person who was listening to the live testimony and evidence and can make assumptions or draw conclusions about witnesses’ credibility, the accuracy of testimony, etc. However, some things are considered issues of law. These could be rulings on motions or instructions given to a jury; this could also be the Court’s decision to appoint one Administrator over another. So, it’s first important to identify which issues an appellate Court would be willing to review and which ones they would be less willing to review.
If you decide that you would like to appeal, here is the general timeline of that process:
1. If you get an Order or Decree that you are unhappy with, you have an extremely limited amount of time to file an appeal. In New York State, this is presently 30 days from Notice of Entry formal written notice of the Court entering the Decree or Order). Therefore, you must speak to an attorney immediately (or do it yourself if you’re so inclined), to avoid the ticking clock. Waiting too long can be fatal.
2. You will file a document with the Surrogate’s Court called a Notice of Appeal. The Notice of Appeal will give notice (to the Surrogate’s Court and all other parties/attorneys) of your intention to appeal the Court’s ruling. You must file this within the timeline described above. Some Appellate Courts also require a separate form called a Request for Appellate Division Intervention.
3. You have six months from the date of filing your Notice of Appeal to “perfect” your appeal. Here, the word perfect is a verb. It means that from the time that you file your Notice of Appeal until the deadline, you’ve submitted every required document. In general, this comprises at least (1) a Record on Appeal — which is copies of the papers filed in the Court below and perhaps copies of transcripts from any hearing or motion, and (2) you must file a brief. No, this does not mean you mail your underwear to the appellate Court (please don’t), but a brief is your argument paper to the appellate Court explaining why you think the Surrogate’s Court made an error and your legal basis to justify that.
4. The opposing party (the party that won in the Surrogate’s Court) will file an opposition brief. The opposing party will receive copies of your record and your brief. They will have the opportunity to be heard on appeal as well. They do this by filing a respondent’s brief, which is due within a certain number of days thereafter. They would file this with the Court, and you would receive copies of it as well.
5. As the appealing party, you have the right to make a reply brief that addresses only issues and arguments brought up in your opponent’s opposition brief.
6. Once all parties have submitted their papers, the Court will set the matter down for oral argument. Oral argument is the party’s/attorney’s opportunity to appear before the judges of the Appellate Division, which normally sit in panels of five judges. The Appellate Division judges have almost always thoroughly reviewed all the papers and are familiar with the facts and legal arguments. Each side is generally given up to 15 minutes to argue, and judges will routinely interrupt you to ask very specific questions. Again, these are very bright judges who have read all the documents and are very well versed and researched in this area of law. They will get right to the heart of the matter very quickly. Each side is offered an opportunity to speak, and the appealing party may reserve a few minutes for rebuttal if they wish.
7. After the oral argument, the court will render a decision. In general, this tends to come within 30 to 60 days. All parties will receive notice of the decision. If they are not pleased with the Appellate Division’s decision, they may appeal to the New York Court of Appeals. However, the Court of Appeals can pick and choose which appeals they want to hear. Usually, they only want to hear ones that raise novel legal issues or are of statewide importance.
There is plenty of information about appeals online. The Appellate Division in New York State is divided into four different divisions and each has its own separate website. The First Department generally will review decisions from Manhattan and the Bronx. The Second Department will review decisions from Brooklyn, Queens, Staten Island, Long Island, and the immediate Northern New York City suburbs. The Third Department will review documents from the Capitol region or the Capitol district and Northern New York. And the Fourth Department will review decisions from Courts located in Western New York. Before taking an appeal, it’s worth it to visit their websites, check out the information there, and familiarize yourself with the Court’s rules.
Finally, it’s important to note that just because you can appeal does not mean you’re going to win. The Appellate Division affirms (agrees with) the vast majority (roughly two-thirds or more) of all decisions. So, before you spend some additional and perhaps significant legal fees on an appeal, it’s worth it to discuss with an attorney, review the law, and weigh the merits of success before incurring additional cost and time.
For more information on this topic, please contact me.