Appealing a New York City Surrogate’s Court Judgment

To appeal a New York Surrogate’s Court judgment, you need an attorney who can file your notice of appeal, record on appeal, and brief within the prescribed time. Generally, the procedure used in filing an appeal with the civil courts is the same as the Surrogate’s Court. SCPA § 2701.

Filing an appeal is not something you can do yourself because preparing a brief requires an analysis of the possible arguments to raise, which requires legal knowledge and an application of that legal knowledge to your case.

Who Can File an Appeal

A party to a probate or estate case in New York who is not satisfied with a judgment or decision rendered by the New York Surrogate’s Court has the right to appeal the judgment. This includes the heirs and beneficiaries of the decedent, creditors, trustees, and professionals who have rendered services to the estate in connection with the administration of the estate.

To file an appeal, it is important that you have been aggrieved by the decision. However, even if you are a successful party, you can still appeal for as long as you have not been given the complete relief you requested.

30-Day Deadline to a Notice of Appeal

The most important deadline in the appellate process is the 30-day deadline for filing a notice of appeal. The notice of appeal needs to be filed within 30 days from the time you are served a copy of the Judgment or Order and its Notice of Entry.

It is only when the final judgment is entered into the Court’s records can an appeal be made. In Surrogate’s Court, entry often happens simultaneously with the issuance of judgment or order, so it is better to play it safe and file a notice of appeal way before the 30 days after the issuance of the judgment or order are up.

This notice of appeal is a simple form document that contains the party making the appeal, the judgment or order or specific part of the judgment or order appealed from, and the court to which the appeal is taken. This notice of appeal is served on other parties to the case. The notice of appeal and proof of service to the other parties are then filed with the Surrogate’s Court.

Where to File an Appeal

To start a Surrogate’s Court appeal, it is necessary to identify the proper judicial district and court to file it in. Surrogate’s Court decisions are appealable to the Supreme Court Appellate Division. The First Department will review decisions from Manhattan and Bronx Surrogate’s Court. The Second Department will review decisions from the Surrogate’s Courts of Brooklyn, Queens, Staten Island, Long Island, and the nearby northern New York City suburbs. The Third Department will review decisions from the Capitol region or district and northern New York, while the Fourth Department will review decisions from Western New York courts.

Perfecting the Appeal: Brief, Appendix, and Record on Appeal

After filing the notice of appeal, you need to file a record on appeal (or statement in lieu of record) within 20 days after settlement of the transcript, settlement of the statement in lieu of stenographic transcript, or approval of the statement in lieu of the record. CPLR 5530.

This usually applies in cases when the matter has gone through trial and a transcript is required of the witnesses’ testimonies so that the appellate court may review the record of what transpired in the lower court. The parties may also agree that only a portion of the proceedings will be transcribed, especially since the transcript can be expensive.

This record on appeal contains the notice of appeal, the judgment appealed from, the judgment roll (which usually contains all the relevant pleadings and orders in the case), and correct transcripts if hearings were held. It would also include relevant exhibits and other papers upon which the judgment was based.

Once the notice of appeal and record on appeal are filed, the court will issue an order setting the briefing schedule. The briefs, which should be filed within 6 months from the notice of appeal, will contain the legal arguments of the parties. This will include a table of contents, the issues, the nature of the case and the facts involved, and the legal arguments.

The supporting documents of the brief may be cited under the full record method, appendix method, or agreed statement method. The full record will contain all the documents that were submitted in the lower courts, including transcripts. The appendix method will only contain relevant portion which the party considers is important in the disposition of the appeal. The agreed statement method, the parties make a joint statement about the records to be used on appeal.

When describing the nature and facts of the case, supporting references to documents in the appendix, full record, or agreed record must be made.

Briefs are filed first by the appellant, and then the respondent. Thereafter, the appellant may file a reply brief that counters the respondent’s brief, and the respondent can file a reply-brief that counters the appellant’s reply-brief.

Aside from legal knowledge and expertise, legal writing is a skill that a layman cannot learn within a short period of time. Writing appellate briefs and other appellate documents also require a particular format that conforms to the court’s requirements. For this reason, an experienced New York estate attorney is more qualified to write a Surrogate’s Court appeal than an attorney who is not familiar with Surrogate’s Court practice. This is because an estate attorney is more experienced in dealing with estate matters and better understands the complex issues that arise during the administration of an estate.

Grounds to Appeal

In order for the appellate court to hear an appeal, a person will need sufficient grounds to appeal. The usual grounds in appealing a judgment are: error of law, lack of evidence, abuse of discretion, or improper procedure.

  • Error of law: There is error of law when the Surrogate’s Court misapplied the law in making its decision.
  • Lack of evidence: There is lack of evidence when the Surrogate’s Court’s decision is based on insufficient or inadequate evidence.
  • Abuse of discretion: There is abuse of discretion when the Surrogate Court exercises its in an arbitrary or capricious manner.
  • Improper procedure: There is improper procedure when the Surrogate’s Court makes a decision in favor of a party, even when such party failed to follow the proper procedure in its appeal.

An appellate court can review both questions of law and fact. CPLR 5501(c). However, in practice, the appellate court will usually not re-evaluate factual errors but only errors of law. The appellate court will give weight to the lower courts who had the opportunity to observe the demeanor of the witnesses during trial.

Still, when an appealing the judgment, it is important to raise all possible grounds, including factual errors, because, although there will be no new trial, the court may review the entire record and have a different appreciation of the evidence that was presented.

The usual grounds or standards of review in appealing a judgment are questions of law, questions of fact, and abuse of discretion.

Questions of Fact

Questions on findings of fact usually pertain to lack of evidence. There is lack of evidence when the Surrogate’s Court’s decision is based on insufficient or inadequate evidence.

  • This usually refers to a clear error in the court’s appreciation of the facts and evidence presented. For example, in a will contest, the court grants the probate of the will, even if there was lack of evidence showing that the testator published the will and declared to the witnesses that what he was signing was his last will and testament.
  • In this case, the testimonies of the witnesses remain the same and the transcripts are submitted to the Appellate Division. The Appellate Division will review the transcripts to see if there was clear error in the Surrogate’s Court’s findings of fact in making its decision.
  • There, however, will be no new trial. There will only be an evaluation of the current existing evidence. Appellate courts will not reverse a lower court’s findings if the findings are plausible in light of the record viewed in its entirety.

Questions of Law

There is a question of law when the Surrogate’s Court misapplied the law in making its decision.

  • For example, there can be an error of law when, between two laws that should apply to a particular case that concerns bank accounts, the court applies general obligations law instead of the more specific banking law, which could be an error.
  • Conclusions of law are reviewed de novo. The appellate court will not give weight to the lower court’s conclusions.

Abuse of Discretion

There is abuse of discretion when the Surrogate’s Court exercises its discretion in an arbitrary or capricious manner. This standard of review is applied in cases of discretionary rulings. Evidentiary rulings are usually discretionary rulings.

  • For example, when the court fails to admit certain evidence, such as photographs and other documents, which were relevant in the disposition of the case, there could be an abuse of discretion when such evidence was clearly admissible under the CPLR.

Mixed Questions of Law and Fact

Sometimes, a decision can contain mixed questions of law and fact, and it becomes harder to distinguish what standard to use, whether de novo in a question of law, clear error in question of fact, or arbitrary and capricious in discretionary rulings. The standard to be used will depend on the unique circumstances of each case.

Effect of an Appeal

An appeal does not stay the Surrogate Court’s decision, unless a temporary restraining order or preliminary injunction is obtained. There are certain instances where the Surrogate Court’s decision may be stayed without court order, especially when it refers to money judgments, when an undertaking is made by the party affected by the adverse decision in the same amount as the money judgment.

Having an experienced New York estate attorney on your side representing you gives you a better chance of winning your appeal. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001
[email protected]