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Perfecting an Appeal via NYSCEF (Efiling)- Nuts and Bolts in AD1 and AD2

by | Apr 2, 2020

Efiling in the Appellate Division has taken the New York State legal community by storm and has resulted in rule changes across the board with respect to perfecting appeals.  This article will address the basic requirements of efiling your appeals in AD1 and AD2 and will reference Electronic Filing Rules (Hereinafter, references to the Rules will be denoted as §__).  The following applies only with respect to appeals which are subject to efiling, including:  1. Appellate Division, First Department:  efiled Notices of Appeal in Bronx and New York Counties which pre-date January 1, 2020 and which are perfected prior to March 1, 2020; efiled Notices of Appeal in Bronx and New York Counties Notices of Appeal dated January 1, 2020 and later; 2. Appellate Division, Second Department:  efiled Notices of Appeal in Westchester, Suffolk, Orange, Dutchess, Putnam, Rockland and Queens Counties; 3. Appellate Division, Second Department: efiled Notices of Appeal in Richmond and Nassau Counties dated April 1, 2020 or later;  efiled Notices of Appeal in Richmond and Nassau Counties which pre-date April 1, 2020 and which are perfected on or after May 15, 2020.

When one files a Notice of Appeal in the Supreme Court, the attorney has 14 days within which that Notice of Appeal must be registered/initiated via NYSCEF at the Appellate Division level (§1245.3a).  Once that initial step is completed, the Appellate Division will assign a Case Number via direct email together with a link to the Notification of Case Number form.  The attorney must complete this form, serve it upon the adversary and then upload the “Proof of Service of Notification of Case Number” via NYSCEF.[1]  This completes the appellant’s initial obligation.  Thereafter, the burden shifts to the would-be-Respondent to register as the Respondent in the case (within 20 days of having been served with said the Notification of Case Number) (See §1245.3d) (hereinafter the “20 Day Period.”).

Assuming all parties comply with the foregoing, the matter will be marked “Full Participation” and no hard copies of the Record, Appellant’s Brief, Respondent’s Brief or Reply Brief need to be served (note that the efiling process does not obviate the need for hard copy filing of the aforementioned documents- this will be discussed further below).  Moreover, if the Respondent fails to register within the 20 Day Period, and the Appellant perfects the appeal after the 20 Day Period, the Appellant is not required to serve hard copies of the Record & Brief on the Respondent.[2]  If, however, Appellant perfects within the 20 Day Period and the Respondent has not yet registered, hard copy service of the Record & Brief is, indeed, required.

Once the appeal is ready to be perfected, both the Record and Brief are uploaded via NYSCEF (following the prompts for each next step).  Within a few days, the appeal will be marked “processed,” whereupon the appellant must file the requisite hard copies with the Court.  If there is any issue with the efiling, the filer will receive a notification that the filing is being “Returned for Correction.”  Once the correction is made, the document at issue must be re-uploaded using the correction link provided by NYSCEF.

Once all briefs are uploaded via NYSCEF, the matter has been fully briefed and the parties must wait for an argument date to be calendared.  In the interim, any and all motions, decisions, etc. are posted via NYSCEF and the parties would be wise to track the case via NYSCEF so that they are kept apprised of all case updates.

[1] It should be noted that an attorney may complete an Authorization allowing an agent to file via NYSCEF on the attorney’s behalf.  The attorney remains responsible, however, for anything filed by that agent. See §1245.3e.

[2] Thus, it is incumbent upon the Respondent to register within the 20 Day Period so that he is aware of all subsequent efilings when they occur. Otherwise, the deadline for his Resp. Brief will come and go without him ever realizing that the appeal had been perfected in the first place.

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