New York State Appellate Division, First Department Clerk’s Requirements Regarding Availability for Oral Argument

We continually hear from our clients regarding the procedures of notifying the First Department of any unavailable dates on which to appear for oral argument. All letters notifying the Court of such requests must be filed by the date specified on the First Department’s Term Calendar under the section labeled “Oral Argument, Time Requests and Adjournment Stipulations.”

However, we have come across instances when too many “unavailable dates” were provided to the Court. The question becomes: what is the Court looking for in terms of dates on which you are available to appear? At what point will the Calendar Clerk view your availability as insufficient? The Clerk’s Rule is quite simple and essentially breaks down to this: the Court requires arguing attorneys to be available at least six of the Calendar days listed that fall on a Tuesday, Wednesday or Thursday. This will typically translate into half of said days within each Term.

It appears that the easiest way to ensure you have effectively notified the Court of your availability is to have the letter reviewed by the Clerk’s Office prior to filing. However, in most cases the letter will be rejected if there is insufficient availability, or you will be notified by a staff member in the Clerk’s Office to amend the request.