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New York State Appellate Division, First And Second Departments: How And When Must I Serve My Adversary?

by | Jul 2, 2024

I frequently receive inquiries from my clients with respect to how to serve their adversaries when they are perfecting an appeal or opposing one that their adversary has already perfected. I will limit my comments to the Appellate Division, First Department (hereinafter AD1) and Appellate Division, Second Department (hereinafter AD2) because those are the courts about which I receive the most frequent inquiries.

In AD1, the brief must be in your adversary’s hand/office on the date that it is filed. That means that if one’s last day to perfect is February 20, 2018, or if one simply wants to meet that deadline to comply with the AD1 May 2018 Term deadline, not only must the Court receive the Record and Brief on that date, but your adversary must receive it in hand as well. This is easily accomplished if the service party is local. However, if the filer is within NYC and the adversary is in Rochester, for instance, it behooves the filer to serve the Rochester party overnight (the day prior) so that both the service party and the Court will receive the documents simultaneously. This, of course, requires the filer to complete his brief one day early to allow for shipping. The alternative is to personally deliver the brief (at whatever expense) to the adversary’s office the date it is due. In this case, it would mean a car service, messenger, etc. to Rochester, NY, which, even if feasible, would dramatically increase the expense.

One caveat to the foregoing is with respect to the Appellant’s Reply Brief. Since this is the last filing and the Respondent receives no opportunity to put in a brief after the Reply Brief is filed, there is no need for personal service of the Reply Brief. At this stage of the briefing schedule, the Appellant may serve his/her Reply Brief via regular mail.

In AD2, the process is more straightforward. Though service may, indeed, be done personally, service via regular mail is perfectly acceptable. Moreover, using the same date as the above-noted example (though there are no Terms in AD2), as long as the service is mailed on the date it is due, the filer has complied with the Court’s requirements. It is for this reason that AD2 gives the adversary an additional five (5) days to respond to the filing if served via regular mail. The service party would get an additional one (1) day if served via overnight mail.

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