Appellate Practice

Most personal injury cases resolve without a trial, and the great majority never see an appellate court. That is precisely why appellate capability matters: a defendant’s assessment of what a case is worth depends partly on whether the firm across the table is equipped to keep going.

Where appeals arise in injury work

Labor Law cases are the clearest example. A §240(1) claim frequently turns on a summary judgment motion, and whether the statute applies to a given set of facts is a question courts revisit constantly. An adverse ruling on that motion is not the end of the case — it is the beginning of the appeal.

The same is true of threshold rulings in motor vehicle cases, of dismissals on notice grounds in premises claims, and of decisions excluding expert testimony in malpractice matters.

The New York Court of Appeals

New York’s highest court takes relatively few civil cases, and appearing before it is uncommon for a suburban personal injury firm. It is a genuine differentiator rather than a marketing line, and it is the reason we are willing to litigate positions other firms treat as settled.

What it means for a client

Practically, it means a case is prepared from the outset as though it may be tried and appealed — the record is built with that in mind. It also means that when an insurer’s position depends on a legal argument rather than the facts, we are in a position to test it.

Which court hears the appeal

Most appeals from Westchester and Rockland go to the Appellate Division, Second Department, sitting in Brooklyn. A further appeal to the New York Court of Appeals is not available as of right in most civil cases — it generally requires permission from either the Appellate Division or the Court of Appeals itself, and the questions it takes are questions of law of statewide importance, not disagreements about the facts.

That distinction governs everything about an appeal. An appellate court is not a second trial. It does not hear witnesses, does not receive new evidence, and will not substitute its own view of who was more believable. It reviews the record for legal error.

The deadline, and why it is shorter than people expect

A notice of appeal in a civil case is generally due 30 days after service of the order or judgment with written notice of entry (CPLR §5513). It is a short, unforgiving window, and it is jurisdictional: miss it and the right to appeal is ordinarily gone, however strong the underlying issue. This is the single most common way a good appellate argument is lost.

Preservation: the appeal is built at trial

An appellate court will generally not consider an argument that was never raised below. Objections, motions, offers of proof and post-trial motions are what create the record an appeal runs on. An issue that everyone in the courtroom understood but nobody stated on the record is usually unreviewable.

This is why appellate thinking belongs in a case long before there is a verdict, and why we are sometimes brought in by trial counsel while a case is still being tried.

Appeals in cases we did not try

We accept appellate referrals from other attorneys and take on appeals in cases tried elsewhere. Appellate work is a different discipline from trial work — record analysis, brief writing and argument on questions of law — and bringing in separate counsel for it is common and sensible practice.

We also defend appeals: where a verdict has been won at trial and the other side appeals, the respondent’s brief is what protects it.

What is realistic

Appellate courts affirm far more often than they reverse. An appeal is worth taking when there is an identifiable legal error that was preserved and that plausibly affected the outcome — a charge that misstated the law, evidence wrongly admitted or excluded, or a summary judgment decided on the wrong standard. It is not a remedy for an unwelcome result on disputed facts, and we will tell you which of the two you have before you spend anything on it.

If you are considering an appeal, or you have just been served with a notice of appeal, talk to us quickly — the 30-day clock is usually already running.