ISSUE 1 │ VOL. 8 │Spring 2020

You have probably read or heard something about the importance of filing your appeal for the June Term. Essentially, the significance of the June Term lies simply in the fact that there are no appeals heard during July or August.

The importance of this can be broken down from a timing and strategic standpoint. If you perfect/file an appeal between now (beginning of March) and 3/16/2020, then the Respondent(s) must file their brief by 4/15/2020. If you perfect an appeal between 3/17/2020 and 7/13/2020, you will be giving the Respondent(s) until 8/12/2020 to file their Respondent’s Brief.

This is especially true if your Notice of Appeal is set to expire after the 3/16/2020 deadline for the June Term, specifically between the middle or end of March and the end of June. This compels you to perfect the appeal earlier than the September Term deadline of 7/8/2013. However, by filing just a few days or months earlier (3/16/2020), you derive the benefit of the June Term and force the Respondent to file by 4/15/2020. Conversely, if you wait until a late March, April or even May deadline, you’ve gained additional time, but have given the Respondent an additional several months to file a Respondent’s Brief.

In addition, due to the “summer recess”, the September Term traditionally processes a very high volume of appeals, which has been known to lead to a court-imposed adjournment. In this case, if you wait until after the deadline for the June Term, you might not have your appeal heard until October, which leads to the possibility of not seeing a decision until the end of the year.

Efiling in the Appellate Division has taken the New York State legal community by storm and has resulted in rule changes across the board with respect to perfecting appeals. This article will address the basic requirements of efiling your appeals in AD1 and AD2 and will reference Electronic Filing Rules (hereinafter, references to the Rules will be denoted as §__). The following applies only with respect to appeals which are subject to efiling, including:

1. Appellate Division, First Department: efiled Notices of Appeal in Bronx and New York Counties which pre-date January 1, 2020 and which are perfected prior to March 1, 2020; efiled Notices of Appeal in Bronx and New York Counties and Notices of Appeal dated January 1, 2020 and later;

2. Appellate Division, Second Department: efiled Notices of Appeal in Westchester, Suffolk, Orange, Dutchess, Putnam, Rockland and Queens Counties; and

3. Appellate Division, Second Department: efiled Notices of Appeal in Richmond and Nassau Counties dated April 1, 2020 or later; efiled Notices of Appeal in Richmond and Nassau Counties which pre-date April 1, 2020 and which are perfected on or after May 15, 2020.

When filing a Notice of Appeal in the Supreme Court, an attorney has 14 days within which that Notice of Appeal must be registered/initiated via NYSCEF at the Appellate Division level (§1245.3a). Once that initial step is completed, the Appellate Division will assign a Case Number via direct email together with a link to the Notification of Case Number form. The attorney must complete this form, serve it upon their adversary and then upload the “Proof of Service of Notification of Case Number” via NYSCEF.

This completes the appellant’s initial obligation. Thereafter, the burden shifts to the would be Respondent to register as the Respondent in the case (within 20 days of having been served with said Notification of Case Number) (See §1245.3d) (hereinafter the “20-Day Period”).

Assuming all parties comply with the foregoing, the matter will be marked “Full Participation” and no hard copies of the Record, Appellant’s Brief, Respondent’s Brief or Reply Brief need to be served (note that the efiling process does not obviate the need for hard copy filing of the aforementioned documents–this will be discussed further below). Moreover, if the Respondent fails to register within the 20-Day Period, and the Appellant perfects the appeal after the 20-Day Period, the Appellant is not required to serve hard copies of the Record and Brief on the Respondent. If, however, Appellant perfects within the 20-Day Period and the Respondent has not yet registered, hard copy service of the Record and Brief is, indeed, required.

Once the appeal is ready to be perfected, both the Record and Brief are uploaded via NYSCEF (following the prompts for each next step). Within a few days, the appeal will be marked “processed,” whereupon the appellant must file the requisite hard copies with the Court. If there is any issue with the efiling, the filer will receive a notification that the filing is being “Returned for Correction.” Once the correction is made, the document at issue must be re-uploaded using the correction link provided by NYSCEF.

Once all briefs are uploaded via NYSCEF, the matter has been fully briefed and the parties must wait for an argument date to be calendared. In the interim, any and all motions, decisions, etc. are posted via NYSCEF and the parties would be wise to track the case via NYSCEF so that they will be kept apprised of all case updates.

1 It should be noted that an attorney may complete an Authorization allowing an agent to file via NYSCEF on the attorney’s behalf. The attorney remains responsible, however, for anything filed by that agent. See §1245.3e.

2 Thus, it is incumbent upon the Respondent to register within the 20 Day Period so that he is aware of all subsequent efilings when they occur. Otherwise, the deadline for his Respondent’s Brief will come and go without him ever realizing that the appeal had been perfected in the first place.

When filing an appeal in the Second Circuit Court of Appeals, most Appellants file an Appendix accompanied by their Appellant’s Brief. The Appendix will include the documents to be cited to by all the parties in their briefs.

However, local rule 30(c) of the Second Circuit provides that parties may file a Deferred Appendix as provided in FRAP 30(c). If the parties stipulate, or if the Court’s own Motion directs, the parties may file a Deferred Appendix, eliminating the need to ascertain which documents the parties will need to cite to in advance. The Deferred Appendix is normally used in instances when the parties cannot decide which documents will comprise the Appendix until they have written their briefs. Some law firms also use this method as a cost-cutting measure, reducing the number of pages which need to be reproduced in the Appendix if they are not necessary for the arguments in their briefs.

In instances when a Deferred Appendix is to be filed, the Appellant and Appellee file “Page Proof” Briefs with citations directly to the Record documents listed on the Lower Court’s Docket Sheet. Once the “Page Proof” Reply Brief is filed by the Appellant, the Deferred Appendix will need to be filed within seven days, comprised of the documents which were cited to in all the “Page Proof” Briefs. Fourteen days after the filing of the Deferred Appendix, the “Final Form” Briefs are filed with citations to the Appendix, replacing the Record citations that were in the “Page Proof” Briefs.

To sum up, when filing a Deferred Appendix, please keep in mind that two briefs are required to be filed by each party, “Page Proof” and “Final Form.” The “Page Proof” Brief containing citations to the Record and the “Final Form” Brief containing citations to the Appendix.

John McGorty | EVP Business Development | PHP

As more and more appeals are falling under the new NYS Appellate Division efiling guidelines, it is important to understand how important it is to monitor your NYSCEF notifications. The system used by the Appellate Divisions is comparable to the methods used by the underlying Courts. For instance, once you upload a document you will receive a confirmation notification via email stating the efiling is “pending.” Once the Court approves the document you have efiled, you will receive a follow up notification (NYSCEF Alert) changing the status of that filing from “pending” to “processed.” At that point, you will be required to file the requisite number of hard copies with the Court within two business days. When filing a letter application, stipulation or motion papers, the Court requires one paper copy following the approval of your efiling. If you are filing a Record, Appendix, Appellant’s Brief, Respondent’s Brief or Reply Brief, the Court requires five copies and one original copy of these pleadings. If you fail to meet the hard copy requirement, your filing will be rejected and the motion or appeal may be dismissed by Court order.

Lastly, you may receive a notification regarding an efiled document that needs corrections. In that case, the NYSCEF alert email will explain the reason(s) behind the Court’s request for revisions and prompt you to use the link found on the associated docket entry. In this case, it is imperative that you use the link to correct the filing, as opposed to refiling the corrected document under a new docket entry. Once again, you will receive an alert email changing the status of the corrected filing to “processed,” prompting the user to file the requisite hard copies. In closing, NYSCEF alert emails need to be monitored closely to avoid potential motion practice, stipulations to adjourn deadlines or letter applications for same.