Modifications to the Counsel of Record at the Appellate Division, Second Department

In the Appellate Division, Second Department, what is an Appellant’s responsibility for notifying the Court when the Respondent’s Counsel of Record has changed from that which was indicated on the Appellant’s filed Request for Appellate Division Intervention form?

I recently had a client who needed to perfect his appeal in the Appellate Division, Second Department (AD2). It turned out, however, that after he had filed his Notice of Appeal and Request for Appellate Division Intervention (“RADI”), the Respondent’s counsel had withdrawn, and the Respondent had become a pro se litigant.

This was significant because AD2 requires that an Affidavit of Service accompany the filing to prove that the service has been properly effectuated on the appropriate party. In order to ensure compliance, AD2 routinely compares the information on the Affidavit of Service to the information provided by the Appellant on the RADI. In this instance, since that information was inconsistent, AD2 required a letter to accompany the filing, indicating the change in representation of the party. In fact, without such a letter, AD2 would have rejected the filing.

For this reason, when perfecting an AD2 appeal, you’d better make sure that your adversary’s counsel has not changed. If it now differs from what you listed on your RADI, it is incumbent upon you to prepare a letter on your letterhead advising AD2 of the change and, of course, of the reason you are serving another party rather than the party listed on the RADI.