Appeals in Brain Injury Cases in New York: Complete Legal Guide

When a brain injury verdict doesn’t reflect the severity of your injuries or the trial court makes legal errors, you have the right to appeal. In New York, the appellate process provides an opportunity to challenge unfavorable verdicts, incorrect jury instructions, or evidentiary rulings that affected the outcome of your case. Understanding how appellate brain injury cases work is essential for protecting your right to fair compensation in 2026.

The New York Appellate Division has the authority to review both legal errors and damage awards in appellate brain injury cases. According to CPLR 5501, the Appellate Division reviews questions of both law and fact, while the Court of Appeals generally reviews questions of law only. The appellate process involves strict procedural requirements, filing deadlines, and specific grounds for challenging trial court decisions in 2025-2026.

What Is an Appeal in a Brain Injury Case?

An appeal is a request to a higher court to review and change the decision of a lower court. In appellate brain injury cases, appeals typically arise after a trial verdict, summary judgment decision, or other significant court ruling. Unlike a new trial, an appeal focuses on whether the trial court made legal errors that affected the outcome.

The appellate court reviews the existing trial record, including transcripts, exhibits, and legal arguments. No new evidence is presented, and no witnesses testify. The appellate judges examine whether the trial court properly applied the law and whether the jury’s verdict is supported by the evidence.

In New York, brain injury cases can be appealed to the Appellate Division of the Supreme Court, which is the intermediate appellate court. There are four Appellate Division departments across New York State. According to the New York court structure, these departments are located in Manhattan (First Department), Brooklyn (Second Department), Albany (Third Department), and Rochester (Fourth Department).

Who Can File an Appeal?

Either party to a brain injury lawsuit can file an appeal. The plaintiff may appeal if they believe the damage award was inadequate, the case was wrongly dismissed, or the trial court made errors that reduced their compensation. The defendant may appeal if they believe the verdict was excessive, liability was improperly determined, or the trial court made legal errors favoring the plaintiff.

In medical malpractice brain injury cases, defendants often appeal large jury verdicts on grounds that the damages are excessive or that the plaintiff failed to prove causation or departure from the standard of care.

Common Grounds for Appeal in Brain Injury Cases

Appellate brain injury cases must be based on specific legal grounds. The appellate court will not simply re-weigh evidence or substitute its judgment for the jury’s factual findings. Instead, brain injury appeals focus on legal errors made during the trial process.

Damage Award Review Standards

New York appellate courts have specific authority to review damage awards in brain injury cases. According to CPLR 5501(c), the Appellate Division “shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.”

This standard is more rigorous than the old “shock the conscience” test. The legislature intended to “assure greater scrutiny of the amount of verdicts and promote greater stability in the tort system.” Appellate courts compare the award to similar brain injury cases that have been sustained on appeal to determine whether it deviates materially from reasonable compensation.

The New York Appellate Court Structure

Understanding New York’s appellate court system is essential for navigating brain injury appeals. The state has a three-tier court structure for civil appeals.

Appellate Division (Intermediate Appellate Court)

The New York Appellate Division is the first level of appeal for most appellate brain injury cases. According to CPLR 5501, the New York Appellate Division reviews both questions of law and questions of fact. This means they can review legal errors and also determine whether the jury’s factual findings are supported by the evidence.

The Appellate Division is divided into four departments, each covering different geographic regions of New York. Where your case is heard depends on the county where the trial took place.

Court of Appeals (Highest Court)

The New York Court of Appeals is the state’s highest court. Unlike the Appellate Division, the Court of Appeals generally reviews only questions of law. According to CPLR 5501, it will review questions of fact only where the Appellate Division “has expressly or impliedly found new facts” when reversing or modifying a judgment.

Most brain injury cases do not reach the Court of Appeals. To appeal to this court, you generally need permission, and the court typically accepts cases that involve novel legal questions or issues of statewide importance.

How to File an Appeal in a Brain Injury Case

Filing an appeal in New York involves strict procedural requirements and deadlines. Missing a deadline can result in your appeal being dismissed, regardless of the merit of your arguments.

Step 1: File the Notice of Appeal

The appeal process begins by filing a notice of appeal. According to CPLR 5515, you must file the notice of appeal within 30 days after receiving a copy of the judgment or order and written notice of its entry.

This 30-day deadline is jurisdictional and cannot be waived. If you miss it, the appellate court lacks authority to hear your appeal. If service is made by regular mail, you get five additional days. If service is by overnight delivery, you get one additional business day.

You must file two copies of the notice of appeal with the county clerk where the judgment was entered, along with an Informational Statement, a copy of the order or judgment being appealed, a copy of the decision, and a $65 filing fee.

Step 2: Perfect the Appeal

After filing the notice of appeal, you have six months to “perfect” the appeal. Perfecting the appeal means completing all the steps necessary to place your case on the appellate court’s calendar.

To perfect an appeal, you must file:

• The Record on Appeal or Appendix: This contains all papers and transcripts from the trial court proceedings relevant to the appeal.
• Your Opening Brief: A legal document presenting your arguments for why the trial court’s decision should be reversed or modified.
• A $315 Filing Fee: Required when filing to perfect a civil appeal at the Appellate Division level.

According to appellate practice rules, if you fail to perfect your appeal within six months, it will be deemed dismissed. You must file a motion to vacate the dismissal and for an extension of time if you miss this deadline.

Step 3: Briefing Schedule

After the appellant files their opening brief, the respondent has 30 days to file an answering brief. The appellant may then file a reply brief within 10 days of receiving the respondent’s brief.

All four Appellate Division departments have adopted maximum word counts for briefs. The limit is 14,000 words for appellant’s and respondent’s briefs, and 7,000 words for reply briefs.

What Happens During the Appeals Process?

Once the appeal is perfected and all briefs are filed, the case moves through several stages before a decision is reached.

Calendar Assignment and Oral Argument

After the reply brief is filed, the clerk issues a scheduling order assigning the case to a specific court term. According to Appellate Division procedures, the court hears oral argument during monthly terms, with each term generally consisting of approximately 10 days. The court does not hold terms in July or August.

Parties receive notice of their oral argument date at least 20 days before the term begins. Each case is argued or submitted in order until the calendar is concluded. If counsel is not present when the case is called, the matter is deemed submitted without oral argument.

During oral argument, each side typically has 15 to 30 minutes to present their position. The appellate judges may interrupt with questions about the facts, law, or procedural issues. Oral argument is your opportunity to address the judges’ concerns and emphasize the strongest points in your brief.

Appellate Court Review and Decision

After oral argument, the appellate judges review the briefs, record, and applicable law to reach their decision. In the Appellate Division, cases are decided by panels of justices, typically five justices per panel.

The court may:

• Affirm the trial court’s decision, leaving it unchanged
• Reverse the decision entirely, often ordering a new trial or entering judgment for the other party
• Modify the decision, such as reducing a damage award while upholding liability
• Remand the case back to the trial court for further proceedings

In brain injury cases, appellate courts frequently modify damage awards. Research shows that even after trial judges reduce verdicts, appellate courts often order additional reductions based on the “deviates materially” standard.

Damage Awards in Brain Injury Appeals

One of the most significant issues in brain injury appeals is the review of damage awards. New York appellate courts have the authority to reduce or increase awards that deviate materially from reasonable compensation.

Examples of Damage Reductions on Appeal

Brain injury verdicts are frequently reduced on appeal in New York. Here are several documented examples:

These examples from recent New York appellate brain injury cases demonstrate that appellate courts regularly reduce brain injury awards, sometimes by 50% or more. This underscores the importance of presenting strong evidence of damages at trial and preserving the record for appeal in 2025 and 2026.

How Appellate Courts Evaluate Damages

When reviewing damage awards, appellate courts compare the award to similar cases involving comparable injuries. They consider factors such as:

• The severity and permanence of the brain injury
• The victim’s age and life expectancy
• The impact on quality of life and daily functioning
• Future medical care and rehabilitation needs
• Lost earning capacity and career opportunities
• Pain and suffering, both past and future

According to CPLR 5501(c), the appellate court must determine whether the award “deviates materially” from reasonable compensation. This requires a comparative analysis of similar brain injury verdicts that have been sustained on appeal.

Preserving Your Right to Appeal

Many issues that could support an appeal are lost because trial attorneys fail to properly preserve them. To preserve an issue for appellate review, you must make a timely and specific objection during trial.

Making Proper Objections

According to New York evidence rules, CPLR 5501(a) provides that unobjected-to rulings are not preserved for appellate review. CPLR 4017 requires that when the court makes a ruling, you must make known your objection to the court’s action.

Your objection must be specific. A general objection is insufficient and waives all grounds that might have been addressed if stated specifically. For example, if you object to evidence being admitted, you must state the specific legal ground, such as “hearsay,” “lack of foundation,” or “irrelevant.”

Preserving Jury Instruction Errors

CPLR 4110-b provides that you cannot assign jury instruction errors unless you object before the jury retires to deliberate. You must state the specific instruction you object to and the grounds for your objection.

Most trial judges conduct a pre-charge conference where they review proposed jury instructions with the attorneys. This conference should always be on the record to preserve objections for appeal.

Making Offers of Proof

When the trial court excludes evidence, the appellate court cannot review the decision unless an adequate offer of proof was made. An offer of proof describes the content of the excluded evidence and why it should be admissible.

In brain injury cases, this is particularly important for expert testimony. If the court excludes your expert’s testimony about future care needs or life expectancy, you must make an offer of proof explaining what the expert would have testified to and why it’s relevant and admissible.

Costs and Attorney Fees for Appeals

Appealing a brain injury case involves significant costs beyond the filing fees. Understanding these expenses helps you make informed decisions about whether to pursue an appeal.

Filing Fees

According to New York appellate filing fees, you must pay:

• $65 to file the notice of appeal with the county clerk
• $315 to file the record, appendix, and brief to perfect the appeal
• $45 to file motions or cross-motions during the appeal

These fees can be waived if you file a motion for In Forma Pauperis status, demonstrating you cannot afford the costs.

Costs Awarded on Appeal

The prevailing party on appeal is entitled to costs. According to CPLR 8203, unless a lesser amount is awarded, the amount of costs on appeal to the Appellate Division is $250.

A party to whom costs are awarded may also tax necessary disbursements, including reasonable expenses for stenographic transcripts and printing or reproduction expenses.

Attorney Fees

Under New York’s “American Rule,” attorneys’ fees generally cannot be collected from the losing party unless authorized by agreement, statute, or court rule. This means each party typically pays their own attorney fees on appeal.

However, if your original fee agreement with your brain injury attorney includes appeals, or if a statute provides for fee shifting in your type of case, you may be able to recover appellate attorney fees.

Transcript and Printing Costs

One of the largest expenses in an appeal is obtaining the trial transcript. Brain injury trials often last several weeks, and transcripts can cost thousands of dollars. You must also pay for printing or reproducing the record, appendix, and briefs.

Timeline for Brain Injury Appeals

Understanding the timeline for appeals helps you plan and make strategic decisions about your case.

From start to finish, a brain injury appeal typically takes 12 to 18 months. This is in addition to the trial itself, which may have taken several years. Understanding this timeline is important for managing expectations and planning your recovery.

When Should You Appeal a Brain Injury Verdict?

Not every unfavorable verdict warrants an appeal. Deciding whether to appeal requires careful analysis of the legal issues, costs, and likelihood of success.

Strong Grounds for Appeal

Consider appealing when:

• The trial court made clear legal errors in jury instructions or evidentiary rulings
• The damage award is substantially lower than comparable brain injury cases
• Critical evidence was improperly excluded that could have changed the outcome
• The verdict is against the weight of the evidence
• Procedural errors or constitutional violations occurred

Weak Grounds for Appeal

Appeals are unlikely to succeed when:

• You simply disagree with the jury’s factual findings
• No legal errors were preserved through objections
• The verdict is within the range of reasonable compensation
• You want to introduce new evidence not presented at trial

An experienced appellate attorney can review the trial record and advise whether you have viable grounds for appeal. This consultation should happen soon after the verdict, as the 30-day deadline for filing the notice of appeal approaches quickly.

How an Appellate Attorney Can Help

Appellate practice is a specialized area of law that requires different skills than trial practice. Working with an attorney experienced in brain injury appeals can significantly improve your chances of success.

Record Review and Issue Identification

An appellate attorney will thoroughly review the trial transcript, exhibits, and court orders to identify preserved errors. They understand what issues appellate courts are likely to reverse and which arguments are most persuasive.

Brief Writing and Legal Research

Appellate briefs require sophisticated legal writing and extensive research into case law. Your attorney will draft briefs that clearly explain the legal errors, cite controlling precedent, and persuasively argue why the appellate court should reverse or modify the trial court’s decision.

Oral Argument Preparation

If your case proceeds to oral argument, your appellate attorney will prepare to address the judges’ questions and emphasize your strongest points. They will anticipate the court’s concerns and be ready with clear, concise responses.

Strategic Advice

Your appellate attorney can advise on whether to seek a stay of judgment pending appeal, whether to pursue settlement during the appeals process, and whether to seek further review by the Court of Appeals if the Appellate Division rules against you.

Special Considerations for Medical Malpractice Brain Injury Appeals

Medical malpractice cases involving brain injuries have unique appellate considerations. These cases often involve complex medical evidence and expert testimony that can present both challenges and opportunities on appeal.

Standard of Care Issues

Appeals in medical malpractice brain injury cases frequently involve disputes about whether the defendant departed from the accepted standard of care. This may include challenges to expert testimony about proper diagnosis, treatment, or monitoring of patients with potential brain injuries.

Causation Challenges

Defendants often appeal on causation grounds, arguing that the brain injury was caused by the patient’s underlying condition rather than medical negligence. These appeals require careful review of the medical evidence and expert testimony presented at trial.

Informed Consent

Some medical malpractice appeals involve claims that the patient was not properly informed of the risks of a procedure that led to brain injury. Appellate courts review whether the trial court correctly applied the informed consent standard.

Protect Your Rights on Appeal

The appellate process provides an important safeguard when trial courts make errors that affect brain injury victims’ right to fair compensation. Whether you received an inadequate damage award in an appellate brain injury case or the defendant is challenging a jury verdict in your favor, understanding the appeals process is essential in 2026.

New York’s appellate courts review both legal errors and damage awards in brain injury cases. With strict deadlines, complex procedural requirements, and the need to preserve errors during trial, navigating an appeal requires experienced legal representation.

If you are considering an appeal in a brain injury case, time is critical. The 30-day deadline for filing a notice of appeal is jurisdictional and cannot be extended. Consulting an appellate attorney immediately after an unfavorable verdict ensures you preserve your right to appeal and identify viable grounds for challenging the trial court’s decision.