“Whenever it appears to the Supreme Court of the United States, any United States Court of Appeals, or a court of last resort of any other state that determinative questions of New York law are involved in a case pending before that court for which no controlling precedent of the [New York State] Court of Appeals exists, the court may certify the dispositive questions of law to the [New York State] Court of Appeals.”
There is confusion about the form a certified question from the Second Circuit Court of Appeals to the New York State Court of Appeals (NYSCA) should take. Attorneys have been under the impression that they should take the Joint Appendix or Appendix that was filed in the Second Circuit and re-file it with a different caption for New York State’s highest court.
This is incorrect. A certified question should mirror the form of an appeal being filed with the NYSCA that was previously heard at the Appellate Division level. Headings and page numbers should be on the top of each document and must match the entries in the table of contents. The cover should conform to all the requirements of the NYSCA, not the Second Circuit requirements. The accompanying briefs should also comply with the NYSCA rules.
The one benefit of filing a certified question with the NYSCA, as opposed to an appeal from a decision of the Appellate Division, is that there is no filing fee.
For more information regarding Certified Questions please proceed to the NYSCA Rules.