Motions for Preference at the Appellate Division, Second Department

As many are aware, the Appellate Division, Second Department (AD2) is one of the busiest appellate courts in the nation. The volume of appeals filed in AD2 on a daily basis is shockingly high. As a result, it should be surprising to no one that the lag between appeals being fully briefed and being calendared for oral argument is ever increasing. In fact, AD2 appeals now typically wait in excess of a year to be calendared for oral argument. And then, once argued, the parties must wait for a decision on the appeal.

Sometimes, the waiting game is no problem and just another hurdle in the litigation process. In other circumstances, however, attorneys may represent elderly clients and waiting over a year to have resolution of the appeal is difficult to tolerate. Accordingly, AD2 provides a remedy in those instances.

If an attorney has a client who is at an advanced age, the attorney may make a motion for a preference at AD2. This means that, if successful, the appeal will be calendared on an expedited basis. In order to successfully make such an application, the attorney must file a Notice of Motion and Affirmation in Support, demonstrating the need for such a preference. The movant should attach, at a minimum, the Notice of Appeal and Order being appealed with Notice of Entry as exhibits and include a $45 filing fee payable to AD2.

Needless to say, the movant should file this application sooner rather than later, so as to get the ball rolling as quickly as possible. Absent prejudice and providing that the movant has demonstrated appropriate need, the application should be granted.