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

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.

Recent Posts

The Importance of Presentation in Appellate Cases

Everyone from Abraham Lincoln to Steve Jobs has been credited with coining some version of the adage, “The best way to predict the future is to create it.” No matter who said it first, the idea seems particularly apt for lawyers mounting an appeal. Consider one of the...

Wednesday Wisdom

Within 20 days of service, Counsel for a party served with Notification of Case Number and other pertinent information for is required to confirm registration as an e-filer in NYSCEF. After the 20-day period, an attorney who has not entered the information required...

The Role of Expert Appellate Services in Winning Appeals

Winning an appeal requires a precise blend of meticulous preparation, strategic thinking, and deep familiarity with appellate procedures. Expert appellate services can play a crucial role in this journey, providing invaluable support to attorneys at every step of the...

Wednesday Wisdom

Co-Appellants should file together for the same term. However, if one of the co-appellants is not ready for the term intended, a stipulation may be signed by all parties involved and filed with the court consenting to the next term.

Blog Categories