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A Very Timely Review on Extensions of Time – To Apply or Not To Apply…That is the Question

by | Jun 13, 2024

Why do today what one can put off until tomorrow? Attorneys are constantly compelled to put out today’s fire today and worry about all others tomorrow. It is often for that reason (among others) that they are often obliged to request for extensions of time from various courts. And they know (traditionally) when those extensions are likely to be granted and when they are not. This is so ingrained in their practice that they frequently build anticipated extensions into their deadlines with the expectation that, more likely than not, those requests will be granted.

It may be time to revisit that approach in the Appellate Division with respect to perfecting civil appeals and opposing perfected appeals. Indeed, there have been very recent instances where requests for extensions were denied for both Appellants and Respondents. Most alarming is that in some of those cases, motions were appropriately filed only to be denied months later.

A perusal of the rules regarding extensions of time is worthwhile to determine the best course of action as perfection and/or opposition deadlines approach. It is critical to note that the rules specifically state that applications may be made for more time, but nowhere does it say that such applications (whether by letter or by motion) will always be granted. And we can confidently tell you that they are not always granted.

For perfection of appeals, all four departments permit two requests via letter, the first for 60 days, and the second for 30 days (see Practice Rules of the Appellate Division, §1250.9(b)). Similarly, as per §1250.9(g), Respondents may also seek two 30-day extensions of time via letter (except in AD1, where a perfected appeal may be adjourned only by stipulation). Reply Brief extension applications may be made twice via letter for an additional 10 days (again, with the exception of AD1).

After the second such letter request, all four departments permit an applicant to apply for further extensions via motion only; however, one should not assume that such motions will always and uniformly be granted. For instance, AD2 specifically states that “Motions to extend the time to perfect an appeal or to file and serve a brief shall be granted only in limited circumstances and upon a showing of good cause.” (AD2 Local Rule §670.9(b)). AD3 indicates that “such motion shall be supported by an affidavit setting forth a reasonable excuse for the delay and an intent to perfect the appeal or proceeding within a reasonable time.” (AD3 Local Rule §850.9(c) & (d)). The rules in AD4 mirror the aforementioned and are found at AD4 Local Rule §1000.9(a).

If an Appellant’s six-month (or previously extended) deadline has passed, the Notice of Appeal is deemed dismissed automatically. At that point, the Appellate Division rules state “When an appeal or proceeding has been deemed dismissed pursuant to subdivision (a) or by order of the court for failure to perfect, a motion to vacate the dismissal may be made within one year of the date of the dismissal. In support of the motion, the movant shall submit an affidavit setting forth good cause for vacatur of the dismissal, an intent to perfect the appeal or proceeding within a reasonable time, and sufficient facts to demonstrate a meritorious appeal or proceeding.” (Practice Rules of the Appellate Division, §1250.10(c)). Again, the rule advises what may be done but offers no guaranty that the relief will be granted.

Given the rise of extension requests being denied by the Appellate Division, it would behoove those attorneys’ intent on perfecting appeals to do so as quickly as possible and not, as a matter of habit, simply assume that their future extension applications will be granted. It will be much easier to file in a timely manner than to explain to the litigant the court’s refusal to grant what was assumed to be a pro forma extension request.

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