An appeal may generally be withdrawn before the Appellate Division decides it, but the procedure depends on whether the appeal has been perfected. In both the First and Second Departments, an unperfected appeal may be withdrawn by submitting a letter application to the Court, with notice to all other parties. In the First Department, the notice of appeal and the judgment or order being appealed must also be attached to the letter application.
If the appeal has been perfected, the procedure is different. Generally, the parties may submit a written stipulation of discontinuance, signed by the parties or their attorneys, asking the Court to permit the withdrawal. If the parties cannot agree to the withdrawal, the appellant may instead make a motion seeking permission from the Court to withdraw the appeal.
There is an important distinction in the Second Department. If an appeal has been perfected but the respondent has not yet filed a brief, the appellant may withdraw the appeal by letter application, with service on all parties. Once a respondent’s brief has been filed, however, the withdrawal generally requires either a stipulation or a formal motion.
The Court should also be notified promptly when circumstances arise that affect whether an appeal should continue, such as a settlement or the appeal becoming moot. The Appellate Division rules require the parties or their attorneys to notify the Court of such developments. In the Second Department, additional local rules address the withdrawal of appeals that have already been placed on the Court’s calendar.
The withdrawal is not complete merely because the parties agree that the appeal should be withdrawn. The appropriate papers must be submitted to the Court, and the Court will then issue an order addressing the withdrawal. For that reason, counsel should not simply stop prosecuting an appeal after deciding not to proceed with it.
For clients, the procedure is relatively straightforward, but the appropriate filing depends on the status of the appeal. Before the appeal has been perfected, a letter application may generally be sufficient. After perfection, a stipulation or motion may be required, depending on the Department and the stage of the appeal. Counsel should therefore determine the status of the appeal and follow the applicable Department’s current requirements before submitting the withdrawal papers.