Adjournment of Oral Arguments in Appellate Division, First Department After They Have Been Calendared

We plan and G-d laughs. It’s an old adage that comes to play in appellate practice as well. With respect to calendaring of oral arguments in AD1, the Appellate Division has a system whereby one can account for unavailable dates for upcoming oral argument. For instance, if you know of particular dates for which you are unavailable in a particular Term, you may write to the Appellate Division in advance of the Term calendar being released, including a list of up to six dates on which you are available to argue.

However, it is not so simple to adjourn a matter once already calendared by the Appellate Division, First Department. There are a few requirements that must be met, and even then, there is no guarantee that the adjournment will be granted. After all, the Appellate Division trumps lower court proceedings, so it is not enough, for instance, to say that you have a conflicting trial date. However, sudden illness or other extenuating circumstances (e.g., your child’s wedding) may just be enough.

In such an instance, you’re going to want to stipulate with opposing counsel to the adjournment. In addition to the stipulation, however, you will need to complete an Attorney’s Affirmation which explains the reason that the adjournment to another Term is needed. Finally, since this is akin to motion practice, a $45 fee payable to the Appellate Division, First Department will have to be brought to the Court by the attorney seeking adjournment along with the Stipulation and the Affirmation, so the Appellate Division can So-Order the application (if it is so inclined).

All of this being said, if at all possible, try to account for conflicts in advance so you can avoid the hassle of endeavoring to adjourn a matter that has already been placed on the Court’s calendar.