How does one seek emergency relief from the Appellate Division? There are essentially two different procedures to follow in the New York State Appellate Division, First and Second Departments depending on where you are seeking relief.
The procedure in the Second Department is the more commonly known practice of filing an Order to Show Cause (“OTSC”). It is important to remember that an OTSC must be filed in person. There have been instances in which the motions clerk wants to ask questions or obtain information regarding the OTSC, and therefore the attorney who has drafted the papers, or someone with intimate knowledge of the case, must be present. Opposing counsel will then have the right to file opposition papers, and with permission from the Court, a reply may be filed. In general, when filing any motion you will need to serve one (1) copy and file one (1) copy along with a $45 filing fee. In this case, service of the papers would happen after giving opposing counsel 24 hours notice prior to filing the papers in the Second Department.
The First Department has done away with the foregoing procedure and replaced it with an emergency application, which also needs to be filed in person. Prior to filing the application, the requester should notify opposing counsel at least 24 hours in advance, giving the adversary an opportunity to appear at the time the application is filed. The motions clerk will hear an explanation of the circumstances surrounding the emergency application. The Judge will usually render a decision immediately following a meeting with the clerk.
The general rule of thumb for the OTSC or emergency application is that the decision on either will be decided at a time appropriate to the circumstances and timing surrounding the request for relief.