ISSUE 3 │ VOL. 1 │FALL 2013
New york state appellate division first department Calendar: What does it all mean?
PAUL LAMAR | Executive Vice President of Appellate Services | PHP
The Appellate Division, First Department (unlike the Appellate Division, Second Department) works off a calendar complete with various Terms for the entire year. There are specific due dates for the Record on Appeal/ Appellant’s Brief, the Respondent’s Brief and the Reply Brief in each Term. There is also a due date on the calendar for Oral Argument Time Requests and Adjournment Stipulations.
The Appellate Division, First Department calendar means different things to each individual attorney, law firm or client being represented in the appeal, primarily since each one has its own reasons for perfecting for a specific Term or waiting until the last minute and filing within the 9 months allowed by the First Department’s rules. The reasons for filing early can vary widely but commonly can be boiled down to strategy, timing, monetary decisions and other variables which may exist in a particular case. One of the common reasons for perfecting an appeal earlier is the desire to have the appeal heard in a specific Term in the hopes of obtaining a decision on the appeal sooner rather than later. There are also instances where a Stay will remain in effect only if an appeal is perfected by a particular Term. In those cases, attorneys may also be compelled to perfect the appeal prior to the nine month deadline.
Unfortunately, in some instances, perfecting one’s appeal for a specific Term does not guarantee that oral argument will be heard for that Term. There are instances when the volume of appeals filed for a specific Term can cause an overload to the Court’s calendar that it adjourns (on the Court’s own Motion) the appeal to the following Term. This is one reason some appellate attorneys prefer to perfect their appeal as quickly as possible.
When consulting with clients on an appeal in the Appellate Division, First Department, it would be prudent to discuss the various options available for scheduling the appeal and which strategy best suits their needs. In the end, the timing of your appeal can be just as valuable as the argument you are making.
How to Perfect an Appeal in the New York State
Appellate Division, First and Second Departments
ERIC J. KUPERMAN ESQ.
Executive Vice President of Sales | PHP
Whether a trial resulted in an unfavorable Judgment or an interlocutory motion was decided by an Order adverse to one’s client’s interest (the “Order” or “Judgment”), one has the right to appeal to the Appellate Division. Whether one appeals to the First or Second Department (“AD1” or “AD2”) depends upon the venue of the underlying litigation. Once the Order or Judgment is entered, it is to be served on all parties with Notice of Entry. Typically, the attorney in whose favor the Order was decided is the one to serve it with Notice of Entry on the other parties, but there is no such obligation.
Once the Order is served with Notice of Entry, the clock starts running with respect to the Appellant’s deadline to file a Notice of Appeal. Pursuant to CPLR 5513, the Appellant has 30 days from service of the Order with Notice of Entry to file a Notice of Appeal in the Court of Original Instance. It is important to note that the timeliness of the filing of the Notice of Appeal is a jurisdictional requirement. Except in rare instances (such as the death of counsel), an untimely Notice of Appeal will result in the dismissal of the appeal for lack of jurisdiction. The only other instance in which one would be permitted to file a late Notice of Appeal is if, in an extremely rare instance, a motion to file it Nunc Pro Tunc were granted. Once the Notice of Appeal is filed (accompanied by a Pre-Argument Statement in AD1; and by a RADI – Request for Appellate Division Intervention- in AD2) together with a $65 filing fee and copy of the Order with Notice of Entry, the Appellant has nine (9) months (in AD1) and six (6) months (in AD2) from the date on the Notice of Appeal to perfect (e.g. filing the Record on Appeal and Brief with the Appellate Division). Practically speaking, while AD1 utilizes the lower court Index Number, AD2 assigns its own Docket Number to the appeal for its duration in AD2.
In assembling the documents which comprise the Record on Appeal for an appeal from motion practice, the Appellant should include the following: Notice of Appeal, Pre-Argument Statement (AD1) or Statement Pursuant to CPLR § 5531 (AD2), Order/Judgment appealed from with Notice of Entry, Motion, Opposition and Reply papers (all with annexed exhibits), Trial Transcript (if it exists) and Oral Argument Transcript (if it exists). Once the documents are forwarded to the printer, a proof copy of the Record is assembled, complete with a Table of Contents as well as proposed covers for both the Record and Appellant’s Brief. The Record should be fully compliant with the Appellate Division’s requirements. Typically, Memoranda of Law are not properly in the Record unless they are independently relevant to some material issue other than the law (for example, an admission in the Statement of Facts).
Parenthetically, it should be noted that one may also perfect an appeal on the “Appendix Method.” The Appendix is a document filed in lieu of a Record and is, essentially, an abbreviated Record. It will most likely not contain every last document which was considered by the Court of Original Instance, but rather a selection of those documents which are likely to be relied upon by all parties to the appeal. Because it is sometimes impossible to determine what a Respondent would need, if a document is inadvertently omitted, the Respondent has a right to file a Respondent’s Appendix without requesting the court’s permission. Where an appeal is perfected on the Appendix method, the Appellant must subpoena the lower court Record up to the Appellate Division so that if the court wishes to reference a document not contained within the Appendix, it may do so when it considers the merits of the appeal.
In an appeal from a verdict after trial, the Record on Appeal/Appendix consists of the Trial Transcript, all exhibits admitted into evidence, the Pleadings, the Judgment Roll and all Notices of Appeal filed with respect to the Judgment. The Trial Transcript must be settled, which means that either the parties must stipulate to its correctness or it must be sent out with a 15-day Notice of Settlement. The other parties to the appeal have 15 days to respond with corrections, if any. Alternatively, once 15 days have passed, the Appellant includes an Affirmation of Compliance in the Record/Appendix (stating that the transcript has been settled). In the rare instances that the parties cannot agree on the correctness of a transcript, the trial judge is called upon to settle the transcript.
Typically, there will be more citations to the Record/Appendix within the Statement of Facts portion of the brief; the reason being that the Record/Appendix is a compilation of fact with respect to what has transpired in the case. Once finished, the attorney forwards the brief, along with the $315.00 filing fee (payable to the Appellate Division), and the printer finalizes the entire package for purposes of perfecting the appeal. To wit, the requisite number of Records/Appendices and Briefs are prepared for both service and filing (AD1- Serve 2, File 8 plus e-service/e-filing; AD2- Serve 2, File 9) and the printer completes both on behalf of the Attorney of Record.With respect to perfecting an AD1 appeal, there are ten (10) term filing deadlines by which one may perfect an appeal within his/her nine (9) month window. Once the appeal is perfected, AD1’s calendar sets subsequent due dates for the Respondent’s and Reply Briefs that follow. Once an AD2 appeal is perfected, however, the Respondent has 30 days to file/serve a Respondent’s Brief and then the Appellant thereafter has ten (10) days within which to file/serve his/her Reply Brief (again, assuming personal service). It is at this point that the appeal is “fully briefed.” All parties await a date on which the Appellate Division will hear the case for argument. Your printer will generally provide that argument date to you. The time varies greatly between when an appeal is fully briefed and when an argument date is assigned by the court. In AD1, since appeals are perfected for particular Terms, argument will occur within that Term (unless it is adjourned to a subsequent Term). As to AD2, unfortunately, there is no real way to predict, but typically an argument date is provided within a few months of fully briefed matters. Once argued, a decision is usually forthcoming within approximately six (6) to ten (10) weeks.
The First Department is comprised of Supreme Court, Bronx and New York Counties. The Second Department is comprised of the following Supreme Court Counties: Dutchess, Kings, Nassau, Orange, Putnam, Queens, Richmond, Rockland, Suffolk and Westchester.
If the Order is served by mail then this time is extended to 35 days from the date of mailing. For purposes of this article, we will assume personal service was made throughout.
Headings must be placed on each document which match their respective entries in the Table of Contents. Page numbers are assigned so that the parties may cite with specificity to the Record on Appeal.
Sending your record on appeal to an appellate printer
Enter the era of the Web Portal. It is increasingly common for law firms to maintain scanned (or converted) PDFs of all documents utilized in litigation. That means that if a case goes to appeal, they already have an electronic copy ready to go. Today, the Web Portals (provided at industry leading appellate printers) are emerging as an alternative to traditional document-sharing methods, and they are clearly the optimum delivery method from the perspective of both the law firms/attorneys and the appellate printers.
Such platforms enable attorneys to upload documents in a matter of minutes and for the printer to download them and begin its work. There is no concern that a file too large and might not make it through an email filter… size does not matter. All that matters is that the attorney has saved time and resources on his/her end, and that the printer has gained precious hours and even days in preparing the Record proof for its client – this is particularly crucial when there is a fast approaching appellate deadline to be met. For attorneys, it’s all about efficient use of time – sharing/delivering documents via Web Portal helps them to achieve maximum efficiency.
Moreover, some of the larger appellate printers offer additional comprehensive functionality in their Web Portals that enable attorneys to track the status of their appeals – including up to the minute service and filing confirmation, and notice of oral argument and decision dates – all through the attorney’s desktop and on a moment’s notice.