How to Avoid Having an AD2 Oral Argument Date Scheduled on a Day You Are Unavailable

Last month I must have received a minimum of ten phone calls and emails asking for guidance as to how to proceed in requesting an oral argument date to be adjourned in the Appellate Division, Second Department (AD2). While the Court will consider a request in writing by submitting a letter to the Court once the appeal has been calendared, AD2 is not too keen on having to reschedule argument dates. However, some of these clients’ appeals had been calendared well over one year after the matter was perfected, which, consequently, does not allow for counsel to guarantee availability on the Court appointed oral argument date.

One of my clients, in particular, received a call from the Court during which the clerk insisted that there is a rule stating that counsel shall submit a letter to the Appellate Division, Second Department once a month, every month, until the appeal has been placed on the calendar for oral argument. Such a letter should include the dates (within each respective month) that counsel is unavailable to argue their appeal(s). Sound crazy? My client thought so. Thereafter, I began to search everywhere for the aforementioned rule to no avail.  I have since concluded that it must be a “clerk rule,” which, in turn, should be respected and followed just the same.

As a result, any letter submitted to the Court must include three criteria: (a) the reason you are not available on the day your matter was calendared; (b) the reason another attorney within your firm is not available to attend the oral argument date on your behalf; and (c) any other dates you are not available to argue. Your letter needs to be addressed to the clerk of the Court and you must copy all counsel (by email, fax or hand delivery) involved in that particular appeal.


2 thoughts on “How to Avoid Having an AD2 Oral Argument Date Scheduled on a Day You Are Unavailable

  1. What about a situation where the appeal in the Second Department has been fully submitted. But not yet calendars. I am the Petitioner-Respondent. I recently discover evidence the I want the lower court to rule on regarding ex-parte communications. I bring an order to show cause to renew in the Supreme Court. How do I prevent the AD2d from calendaring the appeal pending the Supreme Court ruling on the order to show cause (which may obviate the appeal)?

    Thank you.

    • AD2 is typically about one year behind in scheduling oral argument of fully briefed and perfected appeals. Therefore, if your appeal was recently perfected, the odds are that you’ve got plenty of time before the appeal is calendared in AD2. If you do nothing and the OSC is resolved in the interim and renders the appeal moot, you may stipulate to the appeal’s withdrawal.

      If, however, you do not wish to take that approach, you may make a motion to AD2 (via Notice of Motion and Affirmation in Support) to stay the appeal pending the resolution of the OSC in the Supreme Court. Granted this is usually the other way around. In other words, motions to stay lower court proceedings are usually made pending the resolution of an appeal. However, it is safe to say that the Appellate Division would appreciate possibly saving the time and resources necessary to determine an appeal on the merits if there is a lower court application pending which might obviate the need for AD2 to decide the appeal.

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