How much time to perfect an appeal does one have in the Appellate Division, First Department—30 days or nine months?
This is a question that I receive often that causes clients the most confusion and anguish. In most cases, I am able to explain the complicated court rules and calm down nervous attorneys who insist their record on appeal must be filed within 30 days of filing their notice of appeal or they will lose their chance to appeal. I have read and re-read the rules attempting to understand how they could both co-exist in a way that would make sense. Do you have 30 days or nine months to perfect your appeal?
First, let’s review the rules.
30 Day Rule: Pursuant to Section 600.5(d) of the New York State Rules of Court: “The record on appeal must be filed 30 days after the filing of the notice of appeal.”
Nine Month Rule: Pursuant to Section 600.11(a)(3) of the same rules: “The clerk will place no civil appeal or cause on the calendar where the necessary papers and briefs are not offered for filing within nine months of the date of the notice of appeal from the judgment or order appealed from.”
The two rules seem to be contradictory to each other, but if we examine how the rules operate in conjunction with each other, the Court’s reasoning behind the two rules becomes clear. It is generally accepted that an Appellant has nine months to perfect an appeal at the First Department. The Appellant may select one of the calendar dates set forth on the First Department Term calendar, or may wait until the last day of the nine months to perfect their appeal. However, every once in a while, the Respondent moves to dismiss the appeal when the record on appeal is not filed within 30 days of the date the notice of appeal, as set forth in Rule 600.5.
Upon receiving the motion to dismiss, clients usually call in a troubled state seeking answers. The answer I give is always the same, to cite Rule 600.11 and its nine month provision. The court will conditionally grant the motion to dismiss the appeal, unless the Appellant perfects by a specific term deadline, usually way in advance of the expiration of the nine months, but still well after the 30 days in which the notice of appeal was filed.
In summary, the 30 day provision found in Rule 600.5 remains in effect, allowing the Respondent to expedite the appeal and their desire for a quick resolution. The nine month provision found in Rule 600.11(a)(3) remains in effect as well, to satisfy the Appellant’s need for the proper amount of time needed to perfect their appeal. Unless there are other issues at stake, the court will adhere to both Rules, while being fair to both parties.