When Must the Lower Court File be Subpoenaed to the Appellate Division First and Second Departments?
In a civil proceeding, the lower court file must be subpoenaed when an appellant has elected to perfect an appeal using the “Appendix method.” The Appendix is an abbreviated version of the full Record, and therefore, the Appellate Division requires a copy of the original Record on file. The subpoena must be executed prior to filing the Appendix and opening brief. In the Appellate Division – First Department, an appeal won’t be noted for the Term in which the appeal was perfected until the lower court has transferred the original Record and the file has been received by the Appellate Division.
If you’re appealing from an article 78 proceeding, even if there’s a Notice of Appeal filed, you must file a subpoena, if proceeding on the original Record. There’s no subpoena required if you’re reproducing your own Record on Review.
In a criminal proceeding, if the original Record hasn’t been routinely transferred to the Appellate Division, the appellant must file a subpoena prompting the transfer of the lower court file to the Appellate Division. This process is typically determined by the County of original instance. Appellants must contact the clerk’s office to confirm whether the original Record is on file at the Appellate Division. If not, then the subpoena must be recorded prior to filing the opening brief.
What are my Options if an Appellant filed what I deem to be an Inadequate Appendix?
In the Appellate Division, an appellant may elect to perfect their appeal by the Appendix method. With the appendix method you are not required to include all the documents that the judge considered for the appealed order in the Appendix. If you are the Respondent in the case who considers the Appendix inadequate, you may file a Respondent’s Appendix with your Respondent’s Brief. Your Respondent’s Appendix can include documents the judge considered for the order but are omitted from the appellant’s Appendix. If the appellant filed an Appendix, you may file a Respondent’s Appendix as a matter of right.
Another option is to make a motion to strike the Appendix. While you do not have to include the documents filed in the motion
sequence appealed when filing an Appendix, it does have to be fair to both sides. If the appellant only included the documents relevant to their appeal- and left out the documents that pertain to your appeal- you may have grounds for a motion to strike the appellant’s Appendix.
If you are the appellant in the appeal and realize the Appendix is inadequate, you can file a Supplemental Appendix. You are not permitted to file a Supplemental Appendix as a matter of right. If all the parties agree to sign a stipulation to supplement the Appendix and the Court accepts the stipulation, you may file a Supplemental Appendix. The stipulation must outline the documents you intend to include in the Supplemental Appendix. If all the parties do not agree to sign the stipulation, you must make a Motion requesting permission to file a Supplemental Appendix. Your Motion must also outline the documents you intend to include in the Supplemental Appendix. If the court grants the Motion, you may file the Supplemental Appendix.
If the documents you intend to add to the Appendix are outside the scope of what the judge considered for the order but are pertinent to the appeal, you must make a motion to enlarge the scope of the Record. All Motions must include a notice of motion, affidavit or affirmation in support of the Motion, and any supporting exhibits you may have. All Motions must have a return date that falls on a Monday. If the case is electronically filed at the appellate level, all documents for the case must be e-filed with the appellate court on NYSCEF.
The responsibility for requesting argument time falls on each individual party filing a brief with the Court. The brief covers must contain the amount of time being requested. No more than a total of 30 minutes is allowed for argument time. The only exception is in the Third Department when the appeal is taken: (a) from a judgment; (b) in an action on submitted facts; or (c) in a special proceeding transferred or instituted in the Third Department. In these instances, each party is permitted 30 minutes of argument time. The Court of Appeals of the State of New York also allows 30 minutes per side for arguing. In instances where there are multiple parties to the appeal and the specific rules do not apply, if 30 minutes is not sufficient time to give each party the opportunity to argue its point, a letter of explanation must be submitted to the Court before the matter is scheduled for oral argument.
In all New York State appellate courts, no more than one attorney is heard for each brief filed unless the Court grants permission (upon application prior to the argument date) allowing more than one attorney to argue. Moreover, if no time is requested, even if the cover reflects to be argued by, no time will be granted and the appeal will be decided exclusively on the filed documents.
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 (9) 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 (or later) day 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 (1) 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.
Paul LaMar | Executive Vice President of Appellate Services | PHP
I have been handling appeals in the Appellate Division-Second Department for over 20 years and in all that time the most prominent issue which I have found is when it comes to preparing a Joint Record on Appeal.
The court has determined that if multiple Notice of Appeals are filed on the same Case and each appellant plans to perfect then a Joint Record on Appeal must be filed. Each Appellant must sign off on the contents of the Joint Record, if not it can lead to issues after the Joint Record has been filed. Joint Record on Appeal documents could have been omitted that need to be part of the Joint Record. Once the Joint Record is filed the only way to add documents to the Joint Record is to file a Stipulation and/or Motion requesting the filing of a Supplemental Joint Record.
Where the confusion arises is when there is a lack of communication from the appealing parties. There have been times when each Appellant believes they are the Lead Appellant and begins preparing the Joint Record on Appeal. Unbeknownst to them the other Appellant (s) have also determined that they are the Lead Appellant and are preparing a Joint Record. This can add greatly to the cost of the Joint Record on Appeal.
Most of the time the first Appellant to file their Notice of Appeal becomes the Lead Appellant, however in my experience this does not occur all the time. It is incumbent on the parties to communicate with each other and determine who will be the Lead Appellant since the court will only accept 1 Joint Record on Appeal. Once that is established the parties can then decide on which attorney will prepare the Joint Record and which party will now become a Cross and/or Co-Appellant. There are times when a grey area exists where the parties are not 100 % sure if they are Cross or Co-Appellant.
The best way to assure that the filing of the Joint Record on Appeal, with the accompanying Briefs, goes as smoothly as possible is to open up the lines of communication as soon as the Notice of Appeals have been filed.