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HOW IS THE ARGUING CHANGED IN THE APPELLATE DIVISION FIRST AND SECOND DEPARTMENTS?

by | Jul 27, 2023

ERIC J. KUPERMAN | Executive Vice President of Sales | PHP

There are various differences procedurally between the Appellate Division, First and Second Departments (hereinafter “AD1” and “AD2”). One glaring distinction is that only AD1 has a Term Calendar.

AD1

A procedural issue that arises consistently, especially in AD1, is the mechanics of the briefing schedule where there are multiple appellants as well as respondents. Where there are two or more Notices of Appeal filed in connection with the same Order, it is very important to determine appellate designation.

First, an appellant must determine whether the other appellant’s position is adverse in any way. If the appellants are completely aligned in interest, they are co-appellants and will all be designated “appellant.” In this scenario, all appellants will perfect their Brief for the same Term. The respondent will put in its Respondent’s Brief and the appellants will follow with their respective Reply briefs.

However, if the appellants are adverse in interest, then the appellant who filed his Notice of Appeal first will be designated “Appellant-Respondent.” The appellant who filed his Notice of Appeal second in time will be designated “Respondent-Appellant.” If these two appellants are the only parties with a stake in the appeal, then the briefing would be the same as hereinabove described, except there would be a final Reply Brief filed by the Respondent-Appellant replying to the Appellant-Respondent’s opposition to the cross-appeal.

There is a scenario which complicates matters further – the situation where there are two adverse appellants and a respondent who is adverse to both appellants. In this instance, the respondent files his brief after both appellant’s have filed. As the briefing progressed, the parties would find that they had crossed over into the next AD1 Term and they could no longer argue the appeal in the Term for which the appeal had originally been noticed. It is in this situation that all parties need to confer and agree on a briefing schedule to be filed via NYSCEF.

The most common way around this problem is as follows: the Appellant-Respondent files his brief and notices his appeal for a specific term. The Respondent-Appellant would then file his brief on that term’s date for filing a respondent’s brief. At that point the parties would stipulate to adjourn the appeal to the next term and the Respondent would file his brief on the NEXT term’s deadline for filing a respondent’s brief. The Appellant-Respondent would file his reply brief on the deadline for that term’s reply briefs and the Respondent-Appellant would file the final reply brief nine days later.

Another slightly less popular way would be stipulating to a scheduling order and noticing the appeal for the term in which the last reply brief falls. [N.B. You can stipulate to any dates you like but the term in which you fall and when you will have oral argument will be controlled by the filing of the last brief.]

AD2

In AD2, the deadlines by which attorneys must file their briefs are governed by the date on which the previous filer has filed.

Accordingly, once Notices of Appeal are filed, appellate designations are determined and the primary appellant has filed and served his/her brief, the balance of the briefs to be filed with respect to the appeal will fall naturally into place depending on those designations and the dates of the immediately preceding brief.

To the extent multiple appellants are Co-Appellants in AD2, they must file their briefs on the same day. Thereafter, the Respondent(s) would file their brief thirty days later and the Co-appellants would file their Reply Briefs simultaneously 10 days later.

If, however, the multiple appellants (at least two) are Cross-Appellants, the timing of filing and service changes. The Appellant-Respondent and Respondent-Appellant file as if they were Appellant and Respondent, the difference being that the Respondent-Appellant will be entitled to the last word in his Reply Brief (in further support of his/her Cross-Appeal).

The waters get muddy, however, where there are two or more Cross-Appellants (i.e. Appellant-Respondent and Respondent-Appellant) and at least one Respondent who is adverse to both Appellants. While a briefing schedule might clarify the timing of the filings for the parties involved, AD2 will be well aware of the appellate designations of the parties based upon the first filing and the Case Information Statement as well as the respective deadlines by which briefs must be filed. To wit, the Respondent would wait to file his Respondent’s Brief until after both the appellants have filed.
The Respondent then receives 30 days from the Respondent-Appellant’s Brief (i.e. 60 days after the Appellant-Respondent filed the opening brief in the appeal). Thereafter, the Appellant-Respondent would file a Reply Brief within 10 days of the Respondent’s Brief. Finally, the Respondent-Appellant would then file the final Reply Brief within 10 days of the Respondent-Appellant’s Reply Brief. 

Complicated? Yes. But the timing and brief deadline requirements in the Second Department obviate the need for a briefing schedule in most circumstances. As a caveat, although a briefing schedule is not a necessity, it behooves a Respondent to confer with the multiple appellants to ensure that his/her Respondent’s Brief is not filed prematurely. The Respondent only has one bite at the apple. Surely you would not want to file a Respondent’s Brief after receiving the first Appellant’s Brief only to be served thereafter with a cross-appellant’s brief, to which you would no longer be entitled to respond.

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