ISSUE 1 │ VOL. 3 │SPRING 2015

Motions for Leave to Appeal to the Court of Appeals of the State of New York

ERIC J. KUPERMAN ESQ. | Executive Vice President of Sales | PHP

Motions for Leave to Appeal to the Court of Appeals of the State of New York (hereinafter, the “NYSCA”) are one of the few instances in the law (if not the only one) where an attorney has two bites at the apple. To wit, the losing attorney at the Appellate Division may file/serve a Motion to Reargue, or in the alternative, for Leave to Appeal to the NYSCA, together with a $45 filing fee, and make that motion returnable in the Appellate Division. If the Appellate Division grants leave, then a copy of the Order granting leave to appeal, together with a Preliminary Appeal Statement, is forwarded to the NYSCA. Thereafter, the NYSCA will issue a briefing schedule and the appeal will ultimately be perfected at the NYSCA.

If, however, the Appellate Division denies the motion, the movant may make the same motion, seeking the same relief, returnable in the NYSCA. This motion must be made returnable on any Monday and is accompanied by a $45 filing fee as well as one complete copy of the Record/Appendix along with all Briefs which were filed in the Appellate Division. If the NYSCA grants leave to appeal, the Appellant would again file the Preliminary Appeal Statement with the Court and then await a briefing schedule for purposes of perfecting the appeal.

In either case, once the appeal is to be perfected in the NYSCA, the Record on Appeal which is to be served and filed is remarkably similar to that which was filed in the Appellate Division. Specifically, the Record would simply add the Appellate Division Order being appealed, the Order granting leave to appeal, a Statement pursuant to CPLR § 5531 and a Statement pursuant to CPLR § 2105 certifying the accuracy of the Record on Appeal. The requisite number of Records and Briefs are then filed (and served) together with a $315 filing fee payable to the NYSCA.

Records on Appeal: What Lower Court Documents Should Be Included in an Appellate Filing

MARK VIRAG | Senior Appellate Consultant | PHP

Many of our clients assume that a Record on Appeal should include everything in the lower Court file. The Record, however, should only include the documents that the lower Court considered when it rendered the particular Order/Judgment being appealed. Oftentimes, Supreme Court Justices issue a Memorandum cover page that lists all of the documents that were considered.

Firstly, be sure that, whether your Record on Appeal is derived from motion practice or a trial, the Notice(s) of Appeal and the Order/Judgment being appealed are always included.

When the Order/Judgment being appealed is a result of motion practice, the Record on Appeal includes the Notice of Motion, Affidavit/Affirmation in Support, the Affidavit/Affirmation in Opposition, Reply Affidavit/Affirmation and all respective exhibits. The pleadings, as exhibits to the various Affidavits/Affirmations, should also be included.

In an appeal from a verdict after trial, the Record on Appeal consists of the trial transcript, all exhibits admitted into evidence, the pleadings, and the Judgment Roll. Please note that 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 have15 days to respond with corrections, if any. Alternatively, once 15 days have passed, the Appellant includes an Affirmation of Compliance in the Record (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.

Questions regarding the inclusion of Memoranda of Law in the Record are frequently asked by our clients. Generally, it is frowned upon by the Appellate Division because a Record is a compilation of fact and Memoranda of Law are argument. However, a Memorandum of Law is included if it was the only document that one (or more) of the parties below filed in support of their position.

The New York State Appellate Division also allows appellants the option of perfecting an appeal using the Appendix method. When perfecting an appeal with the Appendix method, the Appellant may be selective about which documents to include and which documents to omit from his filing. Just keep in mind that Appellants must subpoena the entire lower Court file from the Court of original jurisdiction to the Appellate Division when using this alternative method in AD1 and AD2.

In-House CLE Presentations

PrintingHouse Press’ highly knowledgeable and experienced appellate consultants have crafted an instructive 2-credit CLE that has been accredited by the New York State CLE Board. We are now offering in-house presentations for the convenience of our clients who would like to earn CLE credits in the comfort of their own offices. This will enable our clients to enhance their knowledge of the many rules and regulations of the New York State Appellate Division, First through Fourth departments, without ever having to leave their office. Moreover, they may invite friends, colleagues and even other Firms into their offices to participate.

This course begins by focusing on the preparation and timely filing of the Notice of Appeal and accompanying documents. It continues by enumerating the necessary documents to be included in the appellate Record/Appendix and the formatting requirements for the accompanying appellate briefs. Idiosyncrasies such as enlargements of time, briefing schedules for appeals with numerous parties and Motions for Leave to Appeal are also discussed in depth. PrintingHouse Press’ CLE concludes by briefly discussing oral argument and the method of perfecting appeals in the New York State Court of Appeals.

Call PrintingHouse Press at 212-719-0990 or email marketing@phpny.com to take advantage of this exceptional offer. We would be pleased to schedule an in-house CLE presentation at your convenience.

Memoranda of Law: To Include or Not

MARIA ANDRADES | Senior Appellate Consultant | PHP

 

When compiling the documents that will constitute a Record on Appeal or Appendix, many appellate attorneys ask the same question regarding Memoranda of Law. Is it appropriate or acceptable to include them in the filing?

There is no rule at the New York State Appellate Division that states a Record or Appendix will be rejected if Memos of Law are incorporated. The standard answer, regarding whether they should be incorporated as part of the appeal, is usually that the Memos of Law may be included only if they have independent relevance. This means that either these lower Court briefs contain admissions of fact or there is dispute as to whether or not a point was raised below.

If, however, instead of filing an Affirmation in Support or Opposition, a party only filed a Memorandum of Law, then the Memo should always be included in the Record or Appendix, regardless of whether it has independent relevance or not. In omitting such a Memo, a key portion of the case documents would be missing from the Record/Appendix and the ensuing briefs, skewing the appellate Judge’s decision.

If a Memo of Law either has independent relevance or was filed in place of an affirmation and must be included in the Record on Appeal or Appendix, our customary practice is to then include all of the Memoranda of Law into the filing.

In-House CLE Presentations

M. CARMEN OTERO 

Last month I must have received a minimum of ten phone calls and emails asking for guidance as to how to proceed in requesting an oral argument date to be adjourned in the Appellate Division, Second Department (AD2). While the Court will consider a request in writing by submitting a letter to the Court once the appeal has been calendared, AD2 is not too keen on having to reschedule argument dates. However, some of these clients’ appeals had been calendared well over one year after the matter was perfected, which, consequently, does not allow for counsel to guarantee availability on the Court appointed oral argument date.

One of my clients, in particular, received a call from the Court in which the clerk insisted that there is a rule stating that counsel shall submit a letter to the Appellate Division, Second Department once a month, every month, until the appeal has been placed on the calendar for oral argument.

Such a letter should include the dates (within each respective month) that counsel is unavailable to argue their appeal(s). Sound crazy? My client thought so. Thereafter, I began to search everywhere for the aforementioned rule to no avail. I have since concluded that it must be a “clerk rule,” which, in turn, should be respected and followed just the same.

As a result, any letter submitted to the Court must include three criteria: (a) the reason you are not available on the day your matter was calendared; (b) the reason another attorney within your firm is not available to attend the oral argument date on your behalf; and (c) any other dates you are not available to argue. Your letter needs to be addressed to the clerk of the Court and you must copy all counsel (by email, fax or hand delivery) involved in that particular appeal.

The Requirement of Subpoenas in the New York State
Appellate Division

JOHN MCGORTY | EVP of Business Development | PHP

In the New York State Appellate Division, subpoenas are most commonly used when the Appellant elects to perfect an appeal using the “Appendix Method.” Essentially, an Appendix is an abbreviated version of a Record on Appeal. Therefore, when perfecting an appeal using the “Appendix Method,” it is the Appellant’s responsibility to ensure the Appellate Division has a complete copy of the lower Court file. In order to effectuate such a transfer of the file, the Appellant must file a subpoena with the County Court which produced the Order they are appealing from. For instance, if the Appellant is perfecting an appeal in the Appellate Division, First Department from an Order originating in New York County, the subpoena must be filed in New York County. It is then the responsibility of the New York County Clerk’s Office to transfer the complete Record to the First Department. When perfecting an appeal using the “Appendix Method” in either the First or Second Departments, if the complete Record has not yet been transferred by the time the Appellant is ready to file the Appendix and Brief, the Clerk of the Appellate Division will request a copy of the filed subpoena.

There is a fee associated with filing a subpoena and the amounts and processes may vary from County to County. Most of the fees are fixed (and nominal) and must be paid with an attorney’s check. However, Bronx County requires cash and the charges vary depending on the size of the Record that is being subpoenaed. On average, the fee will be between $20 and $30.

The process to perfect an appeal using the “Appendix Method” in the Appellate Division, Third and Fourth Departments is quite different. In addition to filing the Appendix, the Appellant is required to reproduce and serve/file one complete copy of the Record on Appeal. No subpoena is required.