How Soon After the Deadline to Perfect My Civil Appeal Will AD1 or AD2 Dismiss My Appeal as Abandoned?

In the Appellate Division, one has nine months from the date on the Notice of Appeal to perfect a civil appeal in the First Department (§ 600.11) and six months to perfect a civil appeal in the Second Department (§ 670.8). If those deadlines pass without an application for an extension of time, the question arises as to whether AD1 or AD2 will dismiss the appeal at some point on the basis that it has been abandoned by the would-be Appellant.

According to AD1 Rule § 600.12, in May, the AD1 clerk makes a calendar of all civil appeals not perfected within the past nine months. This calendar is ultimately published in the New York Law Journal for five consecutive days and called by the clerk on the fifth day of publication. In the event that the Appellant or moving party fails to submit an affidavit satisfactorily explaining the delay and containing various information regarding the appeal (including, but not limited to, the nature of the Order being appealed, whether an enlargement was granted, the date the Notice of Appeal was served, etc.), an order will be entered dismissing the appeal or cause.

In accordance with AD2 Rule § 670.8, the clerk “shall periodically prepare a calendar of all civil causes which . . . have not been perfected within . . . the time limitations [i.e., six months]. . . . Such calendars shall be published in the New York Law Journal for five consecutive days. Upon the failure of the appellant to make an application to enlarge time to perfect within 10 days following the last day of publication, an order shall be entered dismissing the cause.”