Appellate Division, First Department: Must Documents Be in the Service Party’s Hands by 5pm?

The filing of appeals at the Appellate Division, First Department is governed by the Court’s own calendar, which sets forth the specific dates by which the Appellant’s Brief and Record on Appeal, the  Respondent’s Brief, and the Appellant’s Reply Brief must be served and filed for a term of the Court.  Perfection of the appeal will be completed before oral argument is calendared for the Term for which the appeal is noticed. The First Department has ten Terms per year. In general, the Record on Appeal, Appellant Brief and following Briefs must be served and filed by 5pm on the Term deadline. On the final day indicated by the Court’s own calendar for filing, service must be completed by personal service, because the First Department strictly enforces the five day mailing rule. Most Appellants choose one of the Term deadlines that falls within the nine months the rules allow for perfecting an appeal. In some cases, the Appellant waits until the last day of those nine months to perfect an appeal and most, if not all, expiration dates fall between Term deadlines.

In any situation where the Appellant’s last day to perfect falls between Terms, the Court requires that the Record and Brief be filed on or before the last day by 5pm. However, the Court only requires that the papers be in the hands of the opposing parties on or before the official First Department calendar deadline for the upcoming Term. If there are fewer than five days remaining before the next Term deadline, documents should be served by overnight mail. However, if more than five days remain, the documents can be served by regular mail. The Appellant’s “last” day applies to service on the last day in a way that will put the documents in the service parties’ hands by the Term deadline.

Another exception to this rule is regarding the last Brief in an appellate briefing sequence (Reply or Cross-Appellant’s Reply). In this instance, since there is no prejudice to the other side (no responding Brief allowed), the court allows the last Brief to be served via overnight or regular mail, even though there is no rule expressly permitting this practice.