ISSUE 1 │ VOL. 11 │Spring 2023

APPELLATE DIVISION FIRST DEPARTMENT: SUMMARY STATEMENT ON APPLICATION AS RELATING TO LATE REPLY BRIEFS

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

Many are under the mistaken impression that, just as in the Appellate Division 2d Department (AD2), attorneys have 10 days from the date of filing of the Respondent’s Brief in the Appellate Division 1st Department (AD1) to file their Reply Brief in further support of their appeal. The reality is that AD1 operates in accordance with the term Calendar which they publish annually. Accordingly, it is typically the case that the Reply Brief deadline is nine days after the filing of the Respondent’s Brief in a given term.

As a result, attorneys who seek to file the Reply Brief on the 10th day (or later) will find that AD1 rejects the filing as late. Of course, by the time of this discovery, it is also typically too late to stipulate to push the appeal to the following Term (which would de facto extend the Reply Brief deadline). It is often too late because such stipulations must typically be filed no later than one day following the Respondent’s Brief filing.

An attorney who finds himself in this pickle is left with no choice other than to seek interim relief from AD1. They are to file the Summary Statement on Application for Expedited Service and/or Interim Relief form together with an Affirmation in Support demonstrating the need to bounce a particular appeal to the subsequent term. If the Court grants the application, as a result of the term adjournment, the Appellant will have obtained the necessary time to file within the Reply Brief deadline of that new term.

HOW LONG DO I HAVE TO PERFECT AN APPEAL IN A FAMILY COURT MATTER IN THE APPELLATE DIVISION SECOND DEPARTMENT?

M. CARMEN OTERO | Senior Appellate Consultant | PHP

The time to perfect an appeal in a Family Court matter in the Appellate Division Second Department follows the same timeline as for civil appeals. The Court will allow you six months from the date reflected on the Notice of Appeal filed with the lower court. Since Family Court Appeals do not require a Record to be filed, your Brief and Transcript, if applicable, can be served on the last day on all opposing counsel.

The Appellate Division Second Department, however, requires the appeal to be filed timely on the exact day in which your six months expire. If you feel you cannot meet the deadline, you may want to request an extension of time prior to the existing due date. This may be addressed by simply writing a letter to the Court seeking such relief.

SUBPOENA REQUIREMENTS AT THE NEW YORK STATE APPELLATE DIVISION.

Paul LaMar | Executive Vice President Appellate Services | PHP

When filing an appeal in the Appellate Divisions, most attorneys will use the Record on Appeal method, however there are times when the Appellant(s) may choose to file an Appendix with their Appellant’s Brief. When filing an Appendix in the Appellate Division First and Second Departments, the Appellant is responsible for preparing a subpoena in the court of original instance.

The clerk from whom the papers are subpoenaed shall compile the original papers constituting the record on Appeal and cause them to be transmitted to the clerk of the court, together with a certificate listing the papers constituting the Record on Appeal and stating whether all such papers are included in the papers transmitted.

In the First and Second Departments, proof of service of a subpoena upon the clerk of court of original instance requiring all documents constituting the Record on Appeal to be filed with the Clerk of the Appellate Division. In the Third and Fourth Appellate Divisions, a digital copy of the complete Record is required.

There is a fee for filing a subpoena. Since the Appellate Division Second Department encompasses numerous lower courts, and each court has their own fees, the cost can range from $20.00 to $50.00. Those fees usually require a check from the law firm who is filing the subpoena. Since the Appellate Division First Department only handles New York and Bronx County, those fees are $25.00 for New York County and $25.50 for Bronx County.

The Appellate Divisions will not accept an Appendix for filing if there is no Proof that the Record has been subpoenaed at the lower court. The Appendix shall include those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent in their Briefs. Briefs should contain references to the appendix and not to the original record. If it is necessary to refer to the original record, the appendix is incomplete. If the Respondent(s) feels that the Appendix which was filed does not include portions of the Record which they feel is germane to their argument(s), then they can choose to file a Respondent’s Appendix with their Brief.

TECHNICAL GUIDELINES FOR E-FILING IN THE APPELLATE DIVISION SECOND DEPARTMENT
MARIA ANDRADES | Director of Operations| PHP

Pursuant to the Second Department’s E-Filing Technical Guidelines, all digital copies of briefs must contain bookmarks to the authorities cited in the brief. Clicking on a case listed in the Table of Authorities should take the reader to a copy of the case being cited, which is to be included at the end of the brief.

Please note that hard copies of the brief should not include copies of the cited authorities; this rule pertains to the digital copy only.

Technical Guidelines:
Attachment A to the Electronic Filing Rules of the Appellate Division 22 NYCRR Part 1245) contains a list of formatting requirements for documents electronically filed. In addition to those requirements, the Second Department offers the following guidelines, which should be followed to the extent practicable.

Bookmarking in Briefs:
All electronically filed briefs should contain bookmarks to the authorities cited in those briefs. Those bookmarks should take the reader to a copy of the cited authority, that is, the case, statute or rule, which will be part of the brief submitted. Those authorities are not considered to be part of the formal record on appeal.

Bookmarking in Motions:
All electronically filed motions, and papers filed in opposition or relation to motions, should be filed in one PDF document, which shall contain bookmarks linking each separate document contained therein.

Resolution:
To ensure the highest quality resolution, filers should, when practicable, use documents which are exported or electronically converted from word processed documents, rather than scanned documents. When such conversion is not possible, documents shall be scanned at 300 dots per inch (DPI) resolution and in black and white only, unless color is required to protect the evidentiary value of the document.

PDF Size:
Appellate Division e-filing rules require that electronically filed PDFs not exceed 100MB in size. All PDFs should be reduced and optimized, using file compression software, before they are e-filed, to ensure that the smallest sized PDFs possible are filed.

Entry of Initial Information:
Pursuant to section 1245.3(a) of the Electronic Filing Rules of the Second Department, counsel for the appellant or the petitioner, unless an exempt attorney, shall, within the designated time period, register or confirm registration as an authorized e-filer with NYSCEF, follow the prompts to enter the required information in the NYSCEF system, and electronically file such documents “as the court shall require” (22 NYCRR 1245.3[a][2]). The Second Department requires the electronic filing of the notice of appeal, with proof of filing, the order or judgment appealed from, and an informational statement.

HOW DO YOU REQUEST AN EXTENSION OF TIME TO FILE A RESPONDENT’S BRIEF IN THE FIRST DEPARTMENT VS. THE SECOND DEPARTMENT?

VICTORIA RAMOS | Appellate Consultant | PHP

Although the Appellate Division rules are supposed to be unified, there are several variations across the departments. One such variation is the different methods the First and Second Departments require respondents seeking an extension of time to undertake. While there are variations on the requirements for filing these requests, both departments require that you e-file your application for an extension of time on or before the current deadline to file your Respondent’s Brief. Keep the following in mind to ensure your request for extension is compliant with the Court rules and filed timely.

The Second Department requires that a respondent seeking an extension of time must file a letter requesting an extension to file their brief. You are allowed two applications for an extension of 30 days each. The letter must be on your firm’s letterhead, be addressed to the Clerk of the Court, list the reason for your request, and copy all parties to the appeal. If the case is e-filed at the appellate level, you must e-file your letter request. If the appeal is not e-filed at the appellate level, you must email your letter to the Clerk’s office at ad2-extensionoftime@nycourts.gov.

The First Department does not permit respondents to file letters requesting an extension of time. If you are a respondent seeking an extension of time to file your Respondent’s Brief you must either stipulate to adjourn your appeal to another term or file an interim application requesting the Court adjourn the appeal. Your stipulation is required to be signed by all parties involved in the appeal and must indicate which term you are seeking an adjournment to. If you are unable to get your adversaries to consent to sign the stipulation, you can file an interim application. These applications are like motions. You will need to file the interim application form along with an affidavit or affirmation in support of the application. The stipulation or interim application must be e-filed with the Appellate Division First Department on NYSCEF.