APPELLATE DIVISION FIRST AND SECOND DEPARTMENTS: MULTIPLE APPELLANTS? IS A BRIEFING SCHEDULE A NECESSITY?

VICTORIA RAMOS | Executive Vice President of Appellate Services | PHP

If you are an attorney admitted to practice outside of New York State, you may find yourself in the position where you must prosecute an appeal in the Appellate Division First or Second Department. Should you find yourself amongst this group, you may wonder what the procedure is to prosecute your appeal as the attorney of record. The answer may be simpler than you think. The Court requires that you request permission to be admitted pro hac vice. To do so, you must file a pro hac vice letter application.

It is important to note that even if you are admitted pro hac vice in the Court below, the Appellate Division still requires you to file a formal application requesting pro hac vice admission with the Appellate Division. Your letter application may include a supporting affidavit and must include a copy of your certificate of good standing. Most appeals in the First and Second Departments are required to be filed electronically via the New York State Court’s Electronic Filing System (NYSCEF). If your appeal is one of them, you must e-file your application under the corresponding Appellate Division docket number.

Many attorneys assume that they can list themselves as the arguing attorney for the appeal, although their application for pro hac vice admission is still pending. You may be surprised to learn that the Court must grant your application for pro hac vice admission before you can list yourself as the arguing attorney for the appeal in the First and Second Departments. With that said, it is imperative that you file your application as soon as possible to allow time for the Court to issue an order granting your application before the deadline to perfect your appeal or file a responsive brief.

NYSCEF: HOW TO ENTER CONTACT INFORMATION, FOR RESPONDENT AND OTHER PARTIES, IN THE APPELLATE DIVISION

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

You may have noticed a change (among many) to the NYSCEF system recently with respect to entering contact information for Respondents and Other Parties at the Appellate Division via NYSCEF. In the past, clients would contact me in a panic advising that they heard that an appeal had been perfected (or was being perfected) and that they were not yet registered and needed my assistance. In a matter of seconds, I was able to look up the case number provided and then add them via NYSCEF so that they were listed thereafter. This gave them tremendous peace of mind because of my ability to easily assist.

For reasons known only to the Court, that is no longer possible. When logging into NYSCEF, the ability to enter contact information for Respondent and other parties is now available only to the attorneys once they are logged in with their credentials. Thus, while we continue to be able to initialize Notices of Appeal pursuant to a fully executed Appellate Division Authorization, the same is not the case with respect to entering Respondents’ information under a particular Case Number.

The solution to this small, but significant, hurdle is easy, but I would urge you to call or email me immediately once you are aware of your adversary having filed a Notice of Appeal in Supreme Court and subsequently initializing it in the Appellate Division. I’ll walk you through entering your own contact information for the Respondent and then you’ll be all set.

At the end of the day, it is critical for would-be Respondents’ Counsel to be registered so that they are aware of any filings (including perfection of the appeal) under the Case Number assigned. Without noting their appearance under the Case Number and noting which party they represent, an appeal may proceed without the knowledge that it was ever perfected in the first place. This would leave the attorney in the undesirable and embarrassing position of having to explain to his client why he didn’t oppose the Appellant’s appeal at all.

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
Appeals in the Appellate Division, Second Department, Family Court adhere to the same filing requirements as appeals in Civil Court for this state court. Unless the Court directs to perfect an appeal by a particular time, it must be perfected within six months from the date reflected on the Notice of Appeal. If the appeal stems from an Order granting leave to appeal, the same six-month deadline applies, but from the date of the Order. It is important to note that in family court cases, an appellant has the option to request two extensions via letter application. In the initial request, you may ask for 60 days from the six-month deadline, and the second request can seek an additional 30 days. If further extension is needed, a formal motion to extend the time will be required.
THIRD AND FOURTH DEPARTMENT: IN CIVIL APPEALS WITH MULTIPLE RESPONDENTS AND/OR CROSS OR CONCURRENT APPELLANTS, HOW MANY BRIEFS ARE FILED AND WHEN ARE THEY DUE?
KEVIN MOMOT | Senior Appellate Consultant | PHP
The statewide Practice Rules of the Appellate Division, Part 1250 and specifically Rule 1250.9, provides direction on the time, number and manner of filing of Briefs (for the opening and Reply Brief of appellant(s), Brief for respondent(s) – and additional guidance relating to cross appeals and concurrent appeals). The Third Department’s local rules of appellate practice, Part 850 (generally) and in particular Rule 850.9 dealing with time, number and manner of filing of Briefs, does not provide a distinction relating to Brief filing for purposes of this article (rather the Rule provides clarification of the Third Department for filing via Appendix method, digital submissions, and extensions of time to file). The Fourth Department’s local rules, Part 1000 (generally) and specifically Rule 1000.9 dealing with time, number and manner of filing Briefs, also does not provide for any distinction for purposes of this article (the Rule provides clarification relating to extensions of time, hardcopy requirements and digital copy specifications).

Generally, where there are multiple respondents on an appeal, each will file a Brief within 30 days of service of the appellant’s submission, per Rule 1250.9(c). The appellant will then file a single Reply Brief, addressing the issues of each and all respondents, within 10 days of service (per Rule 1250.9(d)) of the last Respondent’s Brief.

On a cross appeal, the appealing parties should try to stipulate to a briefing schedule, per Rule 1250.9(f)(1)(i). The first party to perfect is designated the appellant-respondent, and the cross-appellant (designated as respondent-appellant) must file their answering Brief, which includes the issues of the cross appeal, within 30 days after service of the lead appellant’s Brief. The lead appellant will then have 30 days to file their Reply Brief, addressing the issues raised in the response and cross appeal. And finally, the respondent-appellant Reply Brief is to be filed 10 days after service of appellant’s Reply Brief. See general Rule 1250.9(1)(iii) through (vi).

Concurrent appeals from a single order/judgment are governed by Rule 1250.9(2) and require the appellants to perfect the appeals together. In this case, the briefing schedule consists of opening Briefs by the appellants, then opposition Briefs by respondent(s) to be filed within 30 days, followed by Reply Briefs from concurrent appellants within 10 days.