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.