ISSUE 3 │ VOL. 9 │FALL 2021
Importance of Knowing the Correct Appellant Designations in the Appellate Division First and Second Departments
ERIC KUPERMAN, ESQ. | Executive Vice President of Sales | PHP
The distinction between co-appellants and cross-appellants has very real ramifications with respect to filing deadlines of respective briefs at the Appellate Division, First and Second Departments (hereinafter, AD1 and AD2, respectively). If parties are co-appellants, they are united in interest with respect to the arguments being raised and therefore should file simultaneously. In AD1, that means the briefs should be filed for the same Term, even if not filed on the exact same day (as long as they are both filed on or before the deadline for the particular Term). Conversely, AD2 requires that co-appellant briefs be filed simultaneously.
That means that co-appellants must be on the same page as they are writing their briefs and must plan to have them filed on the same day. Following the filing of co-appellants briefs, the respondent(s) must file one brief which addresses all of the contentions in the appellants’ briefs and thereafter, the appellants will file reply Briefs at the same time. If one co-appellant attempts to file a brief without the other co-appellant(s), the appellant’s brief will be rejected by AD2. All co-appellants must file on the same day.
Cross-appellant briefs are named as such because the various appellants generally have issues amongst each other (in addition to the issues they have with the Respondent). Thus, since counsel will want to make arguments with respect to the other cross-appellants, they cannot feasibly file at the same time. Ideally, there should be a briefing schedule which sets forth the order of briefs to be filed. Such a briefing schedule permits for the parties to systematically file their briefs such that all arguments are sufficiently presented while permitting all cross-appellants to address the previously filed briefs and for the Respondents to address the arguments in response to all of the different appellants who previously filed. In AD2, a briefing schedule is less critical because every brief deadline is measured from the brief filed immediately prior thereto. In AD1, however, because appeals are filed in particular Terms (which come with rigid filing deadlines), a briefing schedule is critical because most often, cases are filed “across” multiple Terms and the designation of deadlines in such a briefing schedule helps both the parties and the court correctly calendar the matter.
How are Requests for Extensions Submitted in the Appellate Term First and Second Departments?
In the Appellate Term-First Department normally there is no reason to request an extension of time to perfect the Record on Appeal and Appellant’s Brief since there is no specific deadline to perfect, unlike the Appellate Divisions which allows 6 months from the date listed on the Notice of Appeal. If a court orders the appeal on for some particular date and the Appellant still requires more time they would have to file a Motion for an extension. If the Appellant has perfected and the Respondent requires an extension of time then they can file a Stipulation signed by all the parties. Normally the Respondent can only stipulate to an additional 7 days to file their Brief. If more time is required they can ask the Appellant to stipulate to the court’s next term. If the Appellant refuses to stipulate then a Motion is required. The Stipulation can be e-mailed to the court at sfc-AT1@nycourts.gov. If filing a Motion hard copies are required by the court, at this time the court does not have an internal digital portal.
In the Appellate Term-Second Department there are 3 options to file for an extension of time: a Letter Application, Stipulation or Motion. The court prefers the Stipulation since the parties are in agreement and the matter is decided in a shorter period of time than with the Letter Application and/or Motion. The Stipulation or Letter Application can be e-mailed to the court at AT2email@example.com. If filing a Motion then the Appellant and/or Respondent would need to upload the file to the court’s digital internal portal or file a hard copy with the court.
What is the Procedure for Being Admitted Pro Hac Vice at the Appellate Division First and Second Departments?
TORI RAMOS | Appellate Consultant | PHP
The Appellate Division First and Second Department will allow out-of-state attorneys to appear as pro hac vice. An attorney in good standing admitted to practice law in the State of New York must make aformal letter application requesting that the out-of-state attorney be permitted to appear pro hac vice. The letter application must include an affirmation in support and the certificate of good standing for the attorney seeking to appear as pro hac vice. If the case is required to be electronically filed on the New York State Courts Electronic Filing Systems (NYSCEF), the court will require the letter application to be filed electronically.
To electronically file the letter application through NYSCEF, you should log into the system and select Appellate Court under the file documents section. A new page will open up where you must select the hyperlink, which reads “File to an existing appeal.” Next, the site will prompt you to enter the case information and select the option stating what you are filing. After entering all the relevant information you can proceed to the next page, which will prompt you to select the document type and upload it. Lastly, the site will allow you to review what you have entered and proceed to upload. The court will review the letter application and issue a letter granting or denying the application.
Appellate Division Third and Fourth Departments: Key Differences in Record and Brief Preparation
KEVIN MOMOT | Senior Appellate Consultant | PHP
The statewide Practice Rules of the Appellate Division, effective as of 2018, have unified (mostly) the form and process concerning Record and Brief preparation across all four appellate divisions in New York. But focusing on the Third and Fourth Departments in particular, there are still some unique distinctions to keep in mind that differentiate these courts. When perfecting by Appendix method in either the Third or Fourth Department, in addition to the required hard copies/digital copy of the Appendix, both courts require a digital copy of the complete Record to be submitted as per statewide Rule 1250.9(a)(2)(ii). Further, the Third Department, Rule 850.9(a), also requires one hard copy of the Record to be filed with the court. In the Third Department, Rule 850.14 has also primarily differentiated the unique circumstances involving workers’ compensation and unemployment insurance appeals, which are part of the court’s typical caseload. In the Fourth Department, Rule 1000.7(a), pursuant to its local rules of practice, the Notice of Appeal as incorporated in to the Record or Appendix must also include proof of filing and service. Also, unlike the other three appellate divisions, the Fourth Department has (for the most part) retained its cover color requirements for submitted Briefs, similar to the color cover requirements on federal appeals in the U.S. Court of Appeals for the Second Circuit. Appellant/petitioner (blue), respondent (red), reply (gray), surreply when applicable (yellow), intervenor/amicus curiae when applicable (green). See Rule 1000.8(a). Brief cover treatment applies to both the hard copies and electronic filings. When perfecting on the reproduced full Record method or Appendix method in the Fourth Department, although 6 total hard copies of the Brief are still required to be filed (one original and five copies), the total number of hardcopies of the Record/Appendix required to be filed at the court has been reduced from 6 to 3 (one original and two hard copies). This does not apply where a party is exempt from filing a digital copy, in which case the rules covering to hardcopy submissions, generally, would dictate. There are other distinctions in these courts relating to perfecting on the original Record, such as statewide Rules 1250.5(e), 1250.9(a)(4)(ii), and 1000.9(c)(2) in the Fourth Department, and Rule 850.5 in the Third Department which must also be noted. Contact us to review in detail or discuss any other important requirements unique to filing by this method.