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Third and Fourth Departments: In Civil Appeals with Multiple Respondents and/or Cross or Concurrent Appellants, How Many Briefs are Files and When are They Due?

by | Feb 8, 2024

KEVIN MOMOT | Senior Appellate Consultant | PHP

The statewide Practice Rules of the Appellate Division, Part 1250 and specifically Rule 1250.9, provides direction on the time, number and manner of filing of Briefs (for the opening and Reply Brief of appellant(s), Brief for respondent(s) – and additional guidance relating to cross appeals and concurrent appeals). The Third Department’s local rules of appellate practice, Part 850 (generally) and in particular Rule 850.9 dealing with time, number and manner of filing of Briefs, does not provide a distinction relating to Brief filing for purposes of this article (rather the Rule provides clarification of the Third Department for filing via Appendix method, digital submissions, and extensions of time to file). The Fourth Department’s local rules, Part 1000 (generally) and specifically Rule 1000.9 dealing with time, number and manner of filing Briefs, also does not provide for any distinction for purposes of this article (the Rule provides clarification relating to extensions of time, hardcopy requirements and digital copy specifications).
Generally, where there are multiple respondents on an appeal, each will file a Brief within 30 days of service of the appellant’s submission, per Rule 1250.9(c). The appellant will then file a single Reply Brief, addressing the issues of each and all respondents, within 10 days of service (per Rule 1250.9(d)) of the last Respondent’s Brief.

On a cross appeal, the appealing parties should try to stipulate to a briefing schedule, per Rule 1250.9(f)(1)(i). The first party to perfect is designated the appellant-respondent, and the cross-appellant (designated as respondent-appellant) must file their answering Brief, which includes the issues of the cross appeal, within 30 days after service of the lead appellant’s Brief. The lead appellant will then have 30 days to file their Reply Brief, addressing the issues raised in the response and cross appeal. And finally, the respondent-appellant Reply Brief is to be filed 10 days after service of appellant’s Reply Brief. See general Rule 1250.9(1)(iii) through (vi).

Concurrent appeals from a single order/judgment are governed by Rule 1250.9(2) and require the appellants to perfect the appeals together. In this case, the briefing schedule consists of opening Briefs by the appellants, then opposition Briefs by respondent(s) to be filed within 30 days, followed by Reply Briefs from concurrent appellants within 10 days.

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