Is It Possible to Postpone Oral Argument at AD2 Pending the Outcome of an Order to Show Cause in a Lower Court?

I was recently contacted by an attorney who inquired whether he could hold at bay (or, essentially, stay) the scheduling of oral argument at the New York State Appellate Division, Second Department (hereinafter “AD2”) while a pending Supreme Court Order to Show Cause was being considered. No argument date had yet been scheduled by AD2, but the attorney wanted to prevent one from being scheduled until the Order to Show Cause had been resolved, since its resolution might render the appeal moot.

There are two modes of thinking on this one. First of all, AD2 is typically about one year behind in scheduling oral argument of fully briefed and perfected appeals. In fact, depending on the time of year, sometimes the delay in calendaring cases for argument is even greater. Therefore, if an appeal was recently perfected, the odds are that there is plenty of time before the appeal is calendared in AD2. Accordingly, I advised that if the attorney did nothing at all and the Order to Show Cause was resolved in the interim and rendered the appeal moot, he could simply stipulate to the withdrawal of the perfected appeal.

If, however, he did not wish to take that approach, another option would be to make a motion to AD2 (via Notice of Motion and Affirmation in Support) to stay the appeal pending the resolution of the Order to Show Cause in the Supreme Court. This approach is the reverse of the usual, since motions to stay lower Court proceedings are usually made pending the resolution of an appeal. In this case, the attorney would actually be moving in AD2 to stay the appeal pending the resolution of a lower Court application.

It is unclear how AD2 would react to such a motion as it is generally not inclined to adjust its docket based upon the happenings in the lower Court. However, it is safe to say that AD2 might, in fact, appreciate saving the time and judicial resources necessary to determine an appeal if there is a lower Court application pending that might obviate the need for AD2 to decide the case.