I just had a client who, after filing a Respondent’s Brief in the Appellate Division, First Department, realized that there was a substantive error contained within the brief. She asked whether she could, as a matter of right, file a Supplemental or Corrected brief. In short, the answer is no. It is necessary to stipulate with all counsel on the appeal as to the withdrawal of the initial brief and the filing of a replacement brief. One may also wish to consider including in the stipulation language with respect to either staying within the same Term (if the Replacement Brief is being filed immediately) or adjourning the appeal to the next available Term. Note that the First Department does not permit matters to be stipulated to the June Term as it is typically the most crowded Term of the year.
Of course, since the time between the Respondent’s Brief deadline and the Reply Brief deadline is very short, the stipulation process must occur quickly (which presumably it would since the Respondent’s sense of urgency to have an accurate brief would be heightened since Respondent would not want the Appellant’s Reply Brief to hone in on the error).
Absent the ability to obtain consent and an executed Stipulation, Respondent would have to make an application to the First Department for the same relief. However, given the likelihood of success on the application, it would behoove the Appellant to Stipulate to the change simply in an effort to avoid unnecessary motion practice.